Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 27, 2016

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?]