Thomas: Denial of Second or Successive 2255 application

In In Re: Edward Thomas, No. 16-12065-J (May 25, 2016), in a published order, the Court denied an inmate’s pro se application for leave to file a Second or Successive (SoS) Motion under 28 U.S.C. § 2255(h). The Court noted that “merely alleging a basis that meets § 2255(h)’s requirements in the abstract only ‘represent[s] the minimum showing’ necessary to file a successive § 2255 motion.” The Court noted that in In re Holladay, it had granted an application because the inmate had proffered detailed evidence that showed a “reasonable likelihood” of success on the merits. Accordingly, an inmate must do more than “simply identify Johnson as the basis for an SoS claim, but also “must show that he falls within the scope of the new substantive rule announced in Johnson.” Thomas relied on Descamps v. U.S. The Court recognized that Descamps could affect the analysis of whether a prior Florida burglary conviction qualified as a violent felony under ACCA, because it held that courts may not rely on the modified categorical approach unless a statute is divisible. But Descamps “merely interpreted an existing criminal statute,” and did not announce a new rule of constitutional law that applied retroactively, as required by § 2255(h)(2). Descamps was therefore “unavailing.” Thus, the district court’s determination that Florida burglary qualified as “generic burglary” under ACCA’s enumerated clause was not affected by Johnson. In addition, Thomas’ two convictions for armed robbery continued to qualify as ACCA predicates under the elements clause.