Garcia: Prior Opinion Vacated

In Garcia v. United States, No. 19-14374 (Jan. 26, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court vacated its prior published opinion in Garcia v. United States, __ F.3d __, 2021 WL 68305 (11th Cir. Jan. 8, 2021), which affirmed the denial of a certificate of appealability on a Davis claim.  The petitioner's application for certificate of appealability is now being held in abeyance pending the Court's decision in Granda v. United States, No. 17-15194, and/or Foster v. United States, No. 19-14771.      

Williams: 2255 Movant Failed to Satisfy Beeman Burden Where Legal Landscape in Equipoise

In Williams v. United States, No. 19-10308 (Jan. 13, 2021) (Jordan, Lagoa, Brasher), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.    

The Court held that the movant failed to meet his burden of establishing that the sentencing court relied solely upon the residual clause, as required by Beeman.  The ACCA enhancement was based, in part, on a prior conviction for federal kidnapping, in violation of  18 U.S.C. 1201(a)(1).  The question on appeal was under what circumstances the legal landscape at the time of a defendant's sentencing can establish, as a matter of historical fact, that the sentencing court relied on the unconstitutionally vague residual clause of the ACCA to classify a prior felony as violent. 

The Court first determined, in line with the Eighth and Tenth Circuits, that de novo review was appropriate because determining the legal environment requires a legal conclusion about the controlling law at the time of sentencing.  The movant argued that the case law at the time made it unlikely that the sentencing court relied on the elements clause, citing to two Eleventh Circuit published opinions indicating the same.  In response, the government cited to a different published Eleventh Circuit opinion in support of its argument that the district court could just as likely used the elements clause to categorize the federal kidnapping conviction as violent.  The Court held that because the legal landscape was so uncertain--it provides no satisfactory answer in the movant's favor--the movant failed to meet his Beeman burden.  That is, because there is no clear precedent on point dictating a specific result, the Court would merely be guessing if it was to say that the sentencing court relied on the residual clause alone.  As a result, the movant failed to meet the Beeman more-likely-than-not standard.  If the evidence is silent or in equipoise, then the party with the burden fails.  

Judge Jordan dissented.  He noted that for a Johnson 2255 movant to succeed, he must show, by a preponderance of the evidence, that the district court relied only on the ACCA's residual clause.  But, the preponderance of the evidence standard does not require a movant to make a showing to a high degree of certainty.  Instead, the standard results in a roughly equal allocation of the risk of error between litigants.  So, a movant meets his evidentiary burden so long as the evidence tips the scales just one little bit in his favor.  Here, Judge Jordan found that movant's reliance on two binding Eleventh Circuit opinions did just that.           

Amodeo: 2241 Petition Unavailable for Actual Innocence Claim

In Amodeo v. FCC Coleman-Low Warden, No. 17-15456 (Jan. 8, 2021) (Ed Carnes, Branch, Luck), the Court affirmed the dismissal of a 2241 habeas petition claiming actual innocence.

Applying its en banc decision in McCarthen, the Court held that the petitioner’s claim could not be brought in a 2241 petition because 2255 was not an inadequate or ineffective remedy.  Because the petitioner could have brought that type of claim in an initial 2255 motion, 2255 was not inadequate or ineffective, even if procedural bars would have precluded petitioner from prevailing in a 2255 motion.  Under McCarthen, the Court explained, two categories of claims may be brought under 2241: 1) those challenging the execution of a sentence, such as the deprivation of good-time credits; and 2) those in which the sentencing court has been dissolved or is no longer available, as in the military context. 

Garcia: Denying COA in a Davis Dual Predicate Situation Based on Beeman

In Garcia v. United States, No. 19-14734 (Jan. 8, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court affirmed the denial of a COA on a Davis claim. 

Relying on Beeman, the Court held that the movant could not meet his burden to prove that his 924(o) conviction was predicated solely on Hobbs Act conspiracy.  After distinguishing In re Gomez and In re Cannon as SOS cases, the Court rejected the movant’s argument that it should assume that the 924(o) was based on the least culpable predicate, and it also rejected his reliance on Alleyne.  Although acknowledging that it was dicta, the Court applied In re Cannon’s “inextricably intertwined” analysis to conclude that he could not meet his burden to prove that his 924(o) offense was predicated solely on Hobbs Act conspiracy.  The Court did not address Stromberg or its progeny.

Kushmaul: Prior Florida Conviction for Promoting Minor Sexual Abuse Triggered CP Mandatory Minimum

In United States v. Kushmaul, No. 20-10924 (Jan. 6, 2021) (Jordan, Luck, Tjoflat) (per curiam), the Court, without oral argument, affirmed the defendant’s 15-year mandatory minimum sentence for distributing child pornography.

The district court applied the mandatory minimum because the defendant’s prior Florida conviction for promoting the sexual performance of a child related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.  The Court found no plain error.  It rejected the defendant’s categorical-approach argument that the Florida offense was obviously broader than the federal definition because the former encompassed clothed as opposed to unclothed minors.  And because there was no precedent on point, the defendant could not show plain error.