Nejad: No habeas relief for Georgia inmate who claimed he was not told about his right to testify

In Ali Nejad v. Warden, No. 15-14856 (July 27, 2016), the Court denied habeas relief to a Georgia inmate who claimed that his trial lawyers in his Georgia state rape trial were ineffective in failing to advise him that he could testify in his own defense despite counsel’s advice to the contrary. The Court noted that the transcript of the trial did not indicate that the trial judge informed Nejad of his right to testify. Nonetheless, noting that there were gaps in the transcript, and crediting the prosecutor’s testimony that she definitely remembered that Nejad was informed by the judge of his right to testify because it was her first rape trial and she was getting ready to cross-examine the defendant and was relieved when he answered the judge that he would not testify, the Court deferred to the State trial court’s determination, in the face of conflicting testimony, that Nejad knew he could testify regardless of the advice of his attorneys.

Jones: Denying SOS based on Baptiste

In In re Kiwanis Jones, No. 16-14053-J (July 27, 2016), the Court denied an application to file a second or successive § 2255 motion, because the defendant had previously filed a “nearly identical Johnson-based” application that had been denied. Based on Baptiste, the Court was bound to dismiss the latest application, because it raised the same claim that was previously rejected. [Judges Rosenbaum and Jill Pryor, concurring, stated that Baptiste was wrongly decided.]

Bradford: Denial of SOS application is jurisdictional

In In re Brad Bradley Bradford, No. 16-14512-J (July 27, 2016), after the Eleventh Circuit denied a post-Johnson application for leave to file a second or successive § 2255 motion, Bradford filed another application, presenting the same claim. The Court held that it lacked jurisdiction to consider an application “premised exclusively on a claim that was presented in a prior application.” The Court recognized that it might have previously ruled on applications presented a second time. But these cases did not address the jurisdictional bar, and were therefore not binding on the jurisdictional issue. Citing Anderson and Baptiste, the Court held that a dismissal of a successive application is “with prejudice.” The Court noted the caselaw that holds that when it denies a successive application, the district court lacks jurisdiction to consider the § 2255 motion. The Court denied Bradford’s application. The Court stated that the grant of certiorari in Beckles was not a basis for granting a successive application, or holding a case in abeyance. The Court stated: “If the Supreme Court decides in Beckles, or some other decision, that the residual clause of § 4B1.2(a)(2) of the career offender provisions of the guidelines is unconstitutional, Bradford will have a new claim under § 2255(h)(2) for which he can then file an application to file a second or successive § 2255 motion. It will not be a Johnson/Welch claim, but a Beckles claim.” The Court therefore denied Bradford’s request that his application be held in abeyance pending Beckles.

Moore: SOS application granted when it was "unclear" whether sentence rested on residual clause

In In re Jasper Moore, No. 16-13993-J (July 27, 2016), the Court granted an application for leave to file a second or successive § 2255 motion because it was “unclear” whether at his sentencing the district court had relied on the residual clause of ACCA. The Court noted that this was merely because Moore had made a prima facie showing; in the district court, he would bear the burden of proving that his sentence was unlawful. A movant cannot meet this burden “unless he proves that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence.” [Query: Would one way a movant be able to meet his burden be by showing that his prior conviction does not qualify under the elements or enumerated clauses, and that his sentence must therefore rest on the now-unconstitutional residual clause?]

Sams: SOS denied for 924(c) offender with predicate 2113(a) bank robbery

In In re Sams, No. 16-14515-J (July 26, 2016), the Court denied an application for leave to file a second or successive § 2255 motion for an applicant who challenged his conviction under 18 U.S.C. § 924(c). The predicate offense for Sams’ 924(c) conviction was a bank robbery “by force and violence, or by intimidation,” in violation of 18 U.S.C. § 2113(a). The Court held that a bank robbery “by intimidation” qualifies as a crime of violence, because it involves the threat to use physical force. The Court also rejected Sams’ challenge to his career offender Guideline designation. The Court pointed out that even if Johnson were to apply, retroactively, to the career offender guideline, this would not benefit Sams, because he had two prior convictions that qualified under the elements clause.

Birge: Affirming imposition of "vulnerable victim" enhancement

In U.S. v. Birge, No. 15-15042 (July 26, 2016), the Court affirmed the imposition of a “vulnerable victim” sentence enhancement, pursuant to U.S.S.G. § 3A1.1(b)(1), for a chief clerk of a Georgia probate court who used access to bank accounts through probate court to conservatorships of minors and incapacitated adults to write herself checks. Birge argued that the “vulnerable victim” enhancement should apply, because Eleventh Circuit caselaw indicated that the guideline applied to persons who “target” a vulnerable victim, and there was no evidence that she had done so. The Court pointed out that while an older version of the Guideline had used the word “target,” it was amended to now read that it applies to a person who knew or should have known that the victim was vulnerable. The Court found that its prior discussion of “target” was dicta, because none of them involved a defendant who was not eligible for the enhancement unless he targeted victims. Here, because Birge knew or should have known that the victims of her scheme were vulnerable, the enhancement applied.

Gomez: Granting SOS to 924(c) applicant

In In re: Emilio Gomez, No. 16-14104-J (July 25, 2016), the Court granted an application to file a successive § 2255 application an inmate who was sentenced under 18 U.S.C. § 924(c). The Court recognized that when the law is “unsettled” on the question whether Johnson might invalidate the residual clause of § 924(c), it grants a successive application. Here, the indictment’s § 924(c) count was unclear on whether Gomez used a firearm during an attempted Hobbs Act robbery, during a conspiracy to commit Hobbs Act robbery, or during a drug trafficking offense. The Court therefore did not know what the predicate § 924(c) crime had been. The Court had previously in Pinder granted a successive application when the predicate was conspiracy to commit Hobbs Act robbery. Further, the Court had yet to decide whether attempted Hobbs Act robbery is a “violent felony” under ACCA. The Court therefore left the issue for the district court to decide in the first instance.

Anderson: SOS claim based on mandatory guidelines dismissed with prejudice until Beckles is decided

In In re: Wayne Anderson, No. 16-14125 (July 22, 2016), the Court (2-1) denied an application for leave to file a second or successive § 2255 motion, filed by a defendant sentenced in 1995 under the then-mandatory career offender Guideline. The Court recognized that in Beckles, the Supreme Court will decide whether the residual clause of the career offender Guidelines is unconstitutionally vague, and if the Supreme Court so rules, Anderson will be able to file another SOS application. However, until the Supreme Court so rules, the denial of Anderson’s SOS application was with prejudice. [Martin, J., dissenting, would have granted the application in light of the pending Beckles case, to avoid forcing Anderson to refile an application. Martin also disagreed that the denial of an SOS application can be “with prejudice,” reasoning that there is no rule against filing multiple applications to file a successive § 2255 petition.]

Antrone Davis: Concurrent sentence does not foreclose granting SOS application

In In Re: Antrone Davis, No. 16-13779-J (July 21, 2016), the Court (2-1) granted an application for leave to file a second or successive § 2255 motion. One of Davis’ prior convictions was for burglary of a car, an offense which did not meet the definition of burglary of a building or structure required to qualify under ACCA. The majority recognized that Davis was serving a 327-month ACCA sentence and a concurrent 327-month sentence for drug trafficking. The majority further recognized that in In Re Williams, it had recently denied an SOS application because the defendant was serving a concurrent sentence. The majority distinguished In Re Williams because the concurrent sentence in that case was “unrelated” to the ACCA sentence, and it was a mandatory [statutory] life sentence [pursuant to 21 U.S.C. § 841(b)(1)(A), for drug traffickers with two or more prior felony drug offenses]. Here, by contrast, the sentence on the drug trafficking count was not “unrelated” to the ACCA count, because the sentencing judge sentenced Davis “based on a single Sentencing Guidelines range.” “The judge’s sentencing decision was therefore no doubt informed by Davis’s ACCA designation, which means Davis may have suffered ‘adverse collateral consequences’ if his ACCA sentence turns out to be unlawful.” [Dissenting, Jill Pryor, J., pointed out that Davis’ concurrent 327-month sentence was based on the career offender Guideline, which requires only two prior qualifying felonies. Davis had two prior qualifying felonies (it was his third felony, for burglary, that was not valid ACCA predicate). Both of these prior felonies qualified under ACCA (and the career offender Guideline). Thus, even if the residual clause of the career offender Guideline was unconstitutional, Davis’ concurrent 327-month sentence would be “unaffected.” Judge Pryor did not interpret In re Williams to be limited to concurrent sentences that were mandatory. A concurrent sentence, even if not mandatory, would be valid and not affected by Johnson.]

Burgest: Career Offender not eligible post-Johnson

In In Re: Earl Burgest, No. 16-14957-J (July 21, 2016), the Court denied a career offender’s application for leave to file a second or successive § 2255 motion. The Court noted that in In Re Griffin it had already held that career offenders do not qualify for post-Johnson § 2255 relief. The Court added that even if Johnson applied to a career offender, it would not entitle Burgest to relief, because his prior convictions for manslaughter, and kidnapping, were enumerated as qualifying prior felonies in the career offender Guideline. This provision would govern regardless of whether the Guidelines residual clause was unconstitutional.

Clayton: No SOS grant post-Matchett for career offender

In In Re: Charles Clayton, No. 16-14556-J (July 18, 2016), the Court, citing U.S. v. Matchett, summarily denied an application for leave to file a second or successive § 2255 motion filed by a defendant sentenced as a career offender under the Sentencing Guidelines. [In a lengthy concurrence, Martin, J., noted that outside the Eleventh Circuit “[e]very other court of appeals has either held or assumed that Johnson makes the language [of the career offender guideline’s residual clause] unconstitutional.” Martin noted that the requirement of “fair notice” applied to the Guidelines by the Supreme Court in Peugh under the Ex Post Facto Clause also applied in a vagueness-Due Process analysis. Martin further noted the Court’s inconsistent treatment in its recent SOS decisions on whether and when Descamps applies to determining the validity of an ACCA sentence, post-Johnson, even though all of these SOS decisions “set binding precedent.”].

Dean: Denying SOS for 924(c) defendant with assault predicate

In In re: Sheldon Dean Christopher Watt, No 16-14675-J (July 21, 2016), the Court denied an application for leave to file a second or successive § 2255 application, filed by a defendant convicted under 18 U.S.C. § 924(c) who claimed that his predicate conviction for this offense was no longer valid, post-Johnson. The Court noted that § 924(c) has an elements clause. Watt’s prior conviction was for assault with intent to rob a Postmaster and in so doing putting the life of the person in jeopardy by use of a firearm, in violation of 18 U.S.C. § 2114. It did not matter that Watt was charged with aiding and abetting because the acts of a principal become those of the aider and abettor. Further, the presentence investigation report, whose factual statements the district court adopted without objection, described how Watt pointed a firearm at the victim and made her lie on the floor while he fled. Thus, even if the residual clause of § 924(c) was void for vagueness, Watt’s predicate offense qualified as a “crime of violence.”

Jeffrey Smith: Denying SOS to 924(c) defendant convicted of carjacking

In In re: Jeffrey Smith, No. 16-13661 (July 18, 2016), the Court denied leave to file a second or successive § 2255 motion to a defendant sentenced under 18 U.S.C. § 924(c), who claimed that this statute’s residual clause was unconstitutionally vague, and that his carjacking conviction, in violation of 18 U.S.C. § 2119, did not meet the requirements of this statute’s force clause. Interpreting its 1994 decision in U.S. v. Moore, the Court held that carjacking involving taking or attempting to take by force and violence or by intimidation, and this meets the force clause, which requires the use, attempted use, or threatened use of physical force. [Jill Pryor, dissenting, argued that Moore could be interpreted to have relied on the residual clause of § 924(c), not its force clause, particularly in light of the Supreme Court’s 1999 decision in Holloway v. U.S.].

Hunt: SOS career offender may be able to file post-Beckles

In In re: William Hunt, No. 16-14756-J (July 18, 2016), the Court denied an application for leave to file a second or successive § 2255 motion, pointing out that Hunt was sentenced as a career offender under the Sentencing Guidelines, and that the Eleventh Circuit in Matchett held that the residual clause of the career offender Guideline is not void for vagueness. The Court recognized, however, that the Supreme Court recently granted certiorari in Beckles, a case “which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.” [Wilson, Jill Pryor and Rosenbaum, JJ., each concurring, set forth their reasoning on why Matchett was wrongly decided].

Baptiste: Denying renewed SOS application

In In re: Gary Baptiste, No. 16-13959-J (July 13, 2016), the Court denied Baptiste’s second or successive post-Johnson § 2255 motion that claimed that the residual clause of 18 U.S.C. § 924(c) was unconstitutionally vague. The Court noted that it had previously denied Baptiste’s SOS application, and Baptiste was raising “precisely the same claim that he raised in round one.” “It would be odd indeed if Congress had intended to allow federal petitioners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners.” Because the Court “previously rejected” Baptiste’s claim on the merits, it was required to dismiss this one. The AEDPA does not permit a prisoner “to file what amounts to a motion for reconsideration under the guise of separate and purportedly ‘new’ application when the new application is the same as the old one.” The law of the case doctrine barred a different result for the new application.

Takhalov: Convictions reversed in B-Girls case

In U.S. v. Takhalov, No. 13-12385 (July 11, 2016), the Court reversed wire fraud and other related convictions arising out of the South Beach B-Girls scheme, finding that the district court erroneously declined to instruct the jury, as the defendants requested, that the jurors must acquit if they found that the defendants had tricked the victims into coming into a bar but nevertheless gave the victims exactly what they asked for and charged them exactly what they had agreed to pay. The Court explained that a “scheme to deceive” only becomes a “scheme to defraud” in violation of the wire fraud statute if the scheme caused harm. Here, the B-girls may have deceived victims to go to bars and order drinks, by not disclosing the B-girls’ financial arrangement with the clubs, but unless the defendants schemed to lie about the quality or price of goods sold to the victims, no wire fraud occurred. The defendants’ proposed instruction to this effect was a correct statement of the law. The Court recognized that the instructions given by the district court “logically entailed” that the defendants intended to cheat the club customers out of money, but the instruction did not “substantially cover” the defense. This difference was meaningful because “the average juror is not Mr. Spock.” Turning to whether the instructional error was “harmless” error, the Court noted that the test was whether the faulty jury instruction did not contribute to the verdict, or whether the record contained evidence that could lead a jury to find that the defendants lacked the intent to defraud. Here, the defendants testified that they did not intend to defraud customers. The Court rejected the government’s reliance on “overwhelming evidence” of guilt, pointing out that the question is not whether the jury could still have convicted the defendants if the instruction had been given, but whether the jury could have acquitted them. Here the evidence “was not so overwhelming that an acquittal would have been irrational.” The Court also reversed the related money laundering counts.

Gordon: No SOS relief for 924(c) conviction based on substantive Hobbs Act robbery

In In Re: Darren Demeatrie Gordon, No. 16-13681 (July 8, 2016), the Court denied leave to file a second or success post-Johnson motion under § 2255. Gordon was convicted under 18 U.S.C. § 924(c) of using a firearm during and in relation to crime of violence: a Hobbs Act robbery. Post-Johnson, Gordon claimed that the “crime of violence” definition in the residual clause of § 924(c) was unconstitutionally vague. The Court ruled, however, that the substantive offense of Hobbs Act robbery – unlike a conspiracy to commit a Hobbs Act robbery – qualified as a “crime of violence” under the use-of-force clause, without regard to the residual clause of § 924(c). This means Gordon’s § 924(c) sentence would be valid even if Johnson makes the § 924(c) residual clause unconstitutional.

Parker: Florida burglary may not qualify, post Descamps, under ACCA

In In re: Leslie Parker, No. 16-13814-J (July 7, 2016), the Court granted leave to file a second or successive post-Johnson motion under § 2255. At Parker’s sentencing, he qualified under ACCA based in part on a 1983 Florida conviction for burglary of a dwelling. The district court did not specifically address whether it was relying on the now-invalidated residual clause. The Court recognized that in United States v. Weeks, it had determined that a Florida burglary conviction constituted an ACCA predicate based on the enumerated clause. However, Weeks predated Descamps, and it is therefore not a binding precedent that holds that Florida burglary is divisible under Descamps. Accordingly, Parker had made out a prima facie case. The Court noted that the PSI indicated that Parker had additional prior convictions that were not addressed at sentencing. But the government could now waive reliance on these other convictions, and the Court therefore did not address them.

Vazquez: State expressly waived procedural default

In Vazquez v. Sec., Fla. Dep’t of Corrections, No. 15-10321 (July 1, 2016), the Court reversed the denial of habeas relief to a Florida inmate, finding that the district court erroneously concluded that Vazquez had defaulted his Sixth Amendment Confrontation Clause claim, because the State had waived procedural default. The Court recognized that generally, a petitioner must exhaust all state court remedies, and, if he fails to do so, the result is procedural default, “which bars habeas relief.” Here, however, in the district court the State in its brief expressly waived reliance on procedural default. Further, the district court did not point to any factors that required a rejection of the State’s waiver.

Raleigh: Denying habeas relief for 1994 murders

In Raleigh v. Sec., Fla. Dep’t of Corrections, No. 14-14198 (June 30, 2016), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 murders. The Court rejected, inter alia, the argument that the State put on contradictory cases for two accomplices at two trials, one that portrayed Raleigh as a “drunken boob,” another at his own trial that portrayed him as a cold, calculating murderer. The Court found that the “drunken boob” comment was made in passing, and did not accurately characterize the state’s argument.

Trailer: Affirming sex offender's life term of supervised release

In U.S. v. Trailer, No. 15-14583 (June 30, 2016), the Court affirmed a life term of supervised release, rejecting a claim that this was substantively unreasonable to a sex offender who was ordered not to have contact with minors, yet nonetheless lied to his probation officer about the fact that he was living with his wife’s four minor children. The Court noted that the life term was within the statutory range of five years to life. The Court noted that “having molested his then girlfriend’s eight-year-old daughter, he was thereafter prohibited from having contact with children under the age of 18.” He nonetheless had contact with his wife’s minor children, all the while lying about it to his probation officer. The Court also noted that the defendant was free to petition the court for early termination or modification of his supervised release.