Rogers: SOS Clear/Unclear test

In In Re: Joseph Rogers, Jr., No. 16-12626-J, the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that “because binding precedent clearly classifies as elements clause offenses the convictions Mr. Rogers’ sentencing court relied on as ACCA predicates, his application does not make out a prima facie case under Johnson.” The Court explained that it applies a “clear/unclear” test. It denies an SOS application if it is clear that the motion will not contain a Johnson claim. This is clear when the sentencing court specifically identified three prior qualifying ACCA convictions under the elements or enumerated crimes clauses, and/or under binding precedent the prior convictions qualified as ACCA predicates under the elements or enumerated crimes clauses. If not, the Court applies Descamps, and, if it is unclear from binding precedent that the state statute is divisible under Descamps, the applicant has made out a prima facie case. “When neither the sentencing court’s finding on which ACCA clause or clauses applied nor binding on-point precedent forecloses an applicant’s assertion that his sentence arose under ACCA’s residual clause, we look to Descamps to ensure we apply the correct meaning of ACCA’s words.” And at this point, unless post-Descamps binding precedent clearly resolves the residual clause ambiguity, his application should be granted. The Court noted that deciding complex issues of first impression, such as whether a state statute was “divisible,” would be impracticable in a SOS proceeding. Citing the law-of-the-case doctrine, the Cout also noted that it had an obligation to determine whether its binding precedent “has been abrogated by intervening caselaw.” With respect to Rogers, in Turner v. Warden Coleman the Court had previously held that Florida aggravated assault, and Florida aggravated battery, qualified as a violent felony under the elements clause. Because Turner is binding precedent, Rogers did not make out a prima facie case.