In In re Hernandez, No. 17-11989 (May 31, 2017) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Johnson. He argued that his 924(c) convictions based on Hobbs Act robbery/extortion and carjacking were invalid because those predicates no longer qualified as crimes of violence. Mr. Hernandez had previously filed a similar application based on Johnson, which the Eleventh Circuit had denied on the ground that his Hobbs Act convictions qualified as crime of violence under the elements clause in 924(c)(3)(A). Under the Eleventh Circuit's precedent in In re Baptiste, that earlier denial precluded his instant application. The Court further added that Mathis did not announce a new rule of constitutional law and therefore did not provide an independent basis for his application.
Judge Martin, joined by Judge Jill Pryor, concurred in the result in a 13-page opinion. In the concurrence, she: reiterated her disagreement with Baptiste, but recognized that it remained binding precedent; explained that it was not clear that, under the categorical approach, Hobbs Act extortion satisfies the elements clause; attempted Hobbs Act extortion is even less likely to satisfy the elements clause; and the practice of stacking 924(c) convictions, which was "prolific" in the Southern District of Florida, can lead to particularly harsh and unjust sentences. She closed by lamenting the Court's inability to revisit the original panel ruling and thereby permit Mr. Hernandez to have the district court determine whether his sentence is illegal.
