                Case: 16-14125        Date Filed: 07/22/2016        Page: 1 of 13


                                                                                        [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT
                                  ________________________

                                        No. 16-14125-J
                                  ________________________

IN RE: WAYNE ANDERSON,

                                                                                          Petitioner.
                                  ________________________

                      Application for Leave to File a Second or Successive
                                 Motion to Vacate, Set Aside,
                           or Correct Sentence, 28 U.S.C. § 2255(h)
                                 ________________________

Before: ED CARNES, Chief Judge, MARCUS and MARTIN, Circuit Judges.

B Y T H E P A N E L:

       Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Wayne Anderson has filed an

application seeking an order authorizing the district court to consider a 28 U.S.C. § 2255 second

or successive motion to vacate, set aside, or correct his federal sentence. The authorization may

be granted only if this Court certifies that the second or successive application is based on a

claim involving:

              (1) newly discovered evidence that, if proven and viewed in light of the
       evidence as a whole, would be sufficient to establish by clear and convincing
       evidence that no reasonable factfinder would have found the movant guilty of the
       offense; or

              (2) a new rule of constitutional law, made retroactive to cases on collateral
       review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the
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application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v.

Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357–58 (11th Cir. 2007) (explaining that this Court

“make[s] only a prima facie decision” that the statutory criteria have been met, which is only a

threshold determination).

       In his application, Anderson seeks to raise one claim in a second or successive § 2255

motion, based on the new rule of constitutional law announced in Johnson v. United States, 576

U.S. __, 135 S. Ct. 2551, 2563 (2015), which held that the residual clause of the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. That new rule

was made retroactively applicable in Welch v. United States, 578 U.S. __, 136 S. Ct. 1257,

1264–65 (2016), which means that federal prisoners who can make a prima facie showing that

their sentences rested, at least in part, on the ACCA’s now-voided residual clause are entitled to

file a second or successive § 2255 motion in the district court. See also 28 U.S.C. § 2255(h)(2).

Anderson, however, does not contend that his sentence was enhanced under the ACCA. Instead,

he claims that the district court improperly sentenced him, in 1995, as a career offender under the

then-mandatory Sentencing Guidelines, using the residual clause of U.S.S.G. § 4B1.2. He argues

that because the residual clauses in § 4B1.2 and the ACCA are “identical,” Johnson also

invalidated the Guidelines clause. As a result, he claims that his sentence violated his right to

due process.

       Anderson’s argument is foreclosed by our post-Johnson decisions. In United States v.

Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015), we held that the vagueness doctrine, upon

which the Supreme Court invalidated the ACCA’s residual clause in Johnson, did not apply to

advisory Sentencing Guidelines. We explained that the vagueness doctrine applies both to

statutes that define elements of crimes and to statutes fixing sentences, but noted that “the



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advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-

Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate

the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a

sentencing judge’s discretion also cannot violate the notice requirement.” Id. at 1194–95.

Finally, we explicitly rejected Matchett’s policy-based argument that allowing the identically

worded residual clause in § 4B1.2(a) to stand would upend the sentencing process by forcing

sentencing courts to apply a clause that Johnson determined to lack precise meaning. Id. at

1195–96. We explained that

       [a]lthough Johnson abrogated the previous decisions of the Supreme Court
       interpreting the residual clause of the Armed Career Criminal Act, sentencing
       courts interpreting the residual clause of the guidelines must still adhere to the
       reasoning of cases interpreting the nearly identical language in the Act.
       [Matchett’s] policy concern is properly addressed to the United States Sentencing
       Commission . . . .

Id.

       We later held, in In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 3002293, at *4–5

(11th Cir. May 25, 2016), that an applicant seeking leave to raise a Johnson-based challenge to

his career offender enhancement, which was imposed when the Sentencing Guidelines were

mandatory, did not make a prima facie showing that his claim satisfied the criteria of

§ 2255(h)(2) because he was not sentenced under the ACCA or beyond the statutory maximum

for his crime. In doing so, we concluded that “the logic and principles established in Matchett

also govern . . . when the Guidelines were mandatory.” Id. at *4. We reasoned that the

Guidelines, whether advisory or mandatory, cannot be unconstitutionally vague because they do

not establish the illegality of any conduct and are designed to limit and assist the sentencing

judge’s discretion. Id. at *4–5.



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       Furthermore, we concluded in Griffin that even if Johnson applies to the Sentencing

Guidelines and invalidated the residual clause in § 4B1.2(a)(2), the Supreme Court’s ruling in

Welch did not “make[ ] Johnson retroactive for purposes of a second or successive § 2255

motion premised on the applicability of Johnson to a guidelines challenge.” Id. at *5. We

reasoned that, while the “application of Johnson to the ACCA was a substantive change in the

law because it altered the statutory range of permissible sentences,” a rule that extended Johnson

to the residual clause of the career offender guideline would establish only that the guideline

range had been incorrectly calculated within the statutory boundaries. Id. Thus, the extension of

Johnson to a guidelines context would create changes only in “how the sentencing procedural

process is to be conducted — changes that are not entitled to retroactive effect in cases on

collateral review in a second or successive § 2255 motion.” Id.

       As our dissenting colleague points out, the Supreme Court has granted certiorari in

Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016), a case that

presents the question whether the residual clause in § 4B1.2(a)(2) of the Sentencing Guidelines is

unconstitutionally vague. We agree that if the Supreme Court holds in Beckles, which is a

§ 2255 case, that the § 4B1.2(a)(2) residual clause is unconstitutional, that decision will establish

“a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). If that happens, Anderson will

be able to file a new application seeking certification to file a second or successive § 2255

motion based not on Johnson but on Beckles.

       We do, however, disagree with our dissenting colleague’s statement that “‘denials of

successive applications are without prejudice’ and so ‘our decision does not preclude [Anderson]

from filing a new successive application in the future . . . .’” Dissenting Op. at 3–4 (quoting



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Griffin, 2016 WL 3002293, at *5 n.4). The Griffin decision does say that “denials of successive

applications are without prejudice, and thus our decision does not preclude [an applicant] from

filing a new successive application in the event of future Supreme Court constitutional rulings

about the Sentencing Guidelines, subject to all statutes of limitations and tolling provisions.”

Griffin, 2016 WL 3002293, at *5 n.4. But that statement is dicta. That application was Griffin’s

first, so the Griffin panel’s statement about what would happen if he were to file a second or

third one is not a holding and therefore not binding under the prior panel precedent rule. See

Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed out many times

that regardless of what a court says in its opinion, the decision can hold nothing beyond the facts

of that case.”). And, for the record, neither is what we say in this part of our order because this,

too, is a first application case.

        Contrary to the dicta in Griffin, denials of successive applications are with prejudice.

They must be with prejudice because that is what § 2244 requires. See 28 U.S.C. § 2244(b)(1)

(“A claim presented in a second or successive habeas corpus application under section 2254 that

was presented in a prior application shall be dismissed.”) (emphasis added); id. § 2244(b)(3)(E)

(“The grant or denial of an authorization by a court of appeals to file a second or successive

application shall not be appealable and shall not be the subject of a petition for rehearing or for a

writ of certiorari.”) (emphasis added); see also In re Baptiste, __ F.3d __, No. 16-13959, 2016

WL 3752118, at *2 (11th Cir. July 13, 2016) (holding that § 2244(b)(1) bars an applicant from

filing applications “seek[ing] leave to file a second or successive habeas motion based on a claim

we rejected in a previous application seeking such leave,” and that § 2244(b)(3)(E) “bar[s] us

from . . . permitting a prisoner to file what amounts to a motion for reconsideration under the

guise of a separate and purportedly ‘new’ application when the new application is the same as



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the old one”). What this means for Anderson is that he cannot file another application raising the

same Johnson claim that we have denied in this order unless and until the Supreme Court

establishes in Beckles or some other future decision “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,”

28 U.S.C. § 2255(h)(2), at which time he can file an application raising a claim based on that

new rule decision, see id.

       Our point is that the present denial of Anderson’s application is with prejudice unless and

until Beckles or some future Supreme Court decision establishes a new rule of constitutional law

that the residual clause contained in § 4B1.2(a)(2) is unconstitutional. It is without prejudice to

his filing another application if and when the Supreme Court issues such a decision in the future.

       In light of our decisions in Matchett and Griffin, Anderson has failed to make a prima

facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255(h). His

application for leave to file a second or successive motion is hereby DENIED.




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MARTIN, Circuit Judge, dissenting:

      Wayne Anderson was sentenced based on United States Sentencing

Guideline § 4B1.2, which contains the same 13 words that Johnson v. United

States, 576 U.S. ___, 135 S. Ct. 2551 (2015), made unconstitutional. The

government agrees that Johnson invalidated the identical language of USSG §

4B1.2, at least on direct appeal. But our court ruled otherwise. See United States

v. Matchett, 802 F.3d 1185 (11th Cir. 2015). I have written before that I believe

“Matchett was wrongly decided.” In re Robinson, 822 F.3d 1196, 1198 n.2 (11th

Cir. 2016) (Martin, J., concurring). I later explained why in more detail. See In re

Clayton, __ F.3d __, __, 2016 WL 3878156, at *2–*7 (11th Cir. July 18, 2016)

(Martin, J., concurring). The majority here emphasizes that Matchett “noted that

no circuit had held in a published decision that advisory guidelines could be

unconstitutionally vague . . . and in fact, four circuits had held that the

guidelines—whether mandatory or advisory—could not be unconstitutionally

vague.” Maj. Op. at 3–4. That may have been true ten months ago when Matchett

was decided, but since that time “[e]very other court of appeals has either held or

assumed that Johnson makes the language in § 4B1.2(a)(2) of the Sentencing

Guidelines unconstitutional.” Clayton, 2016 WL 3878156, at *1 (Martin, J.,

concurring).




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      Last month, the Supreme Court announced that it will hear a case next term

in which it can evaluate whether Matchett is correct. See Beckles v. United States,

No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016). Travis Beckles was

sentenced using USSG § 4B1.2 in 2007 because of his earlier conviction for

possessing a gun. He argued on appeal that this conviction was not for a “crime of

violence.” Our court ruled that mere possession of a sawed-off shotgun was a

“crime of violence” under the language that Johnson addressed (as it happens,

Johnson involved this very same crime). See United States v. Beckles, 565 F.3d

832, 844 (11th Cir. 2009). Then, after our court upheld the denial of his § 2255

motion, see Beckles v. United States, 579 F. App’x 833, 833 (11th Cir. 2014), Mr.

Beckles took his case to the Supreme Court. The Supreme Court granted his

petition for certiorari, summarily vacated our ruling, and told us to redo the case in

light of Johnson. See Beckles v. United States, 135 S. Ct. 2928 (2015). A year

after our first decision, our court upheld Mr. Beckles’s sentence again, this time by

holding that Johnson’s vagueness analysis does not apply to invalidate USSG §

4B1.2. See Beckles v. United States, 616 F. App’x 415, 416 (11th Cir. 2015).

Again, we are the only Court of Appeals that takes that view. Mr. Beckles had to

go back to the Supreme Court. The Supreme Court granted his certiorari petition

again and is set to hear the case next term.




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      It’s time for our court to accept that Johnson could apply to USSG § 4B1.2.

I recognize that the “grant of certiorari does not constitute new law.” Ritter v.

Thigpen, 828 F.2d 662, 665–66 (11th Cir. 1987) (per curiam). But our job here is

not to conclusively decide Mr. Anderson’s case. Instead, the only question before

us is whether Mr. Anderson made “a sufficient showing of possible merit to

warrant a fuller exploration by the district court.” In re Holladay, 331 F.3d 1169,

1173 (11th Cir. 2003) (quotation omitted). It seems to me that if the Supreme

Court thinks Mr. Beckles’s case is worth hearing, then Mr. Anderson’s case also

has enough “possible merit to warrant a fuller exploration.” Id. I would therefore

certify Mr. Anderson’s § 2255 motion. That way Mr. Anderson will be assured the

benefit of Johnson if the outlier view in Matchett is shown to be wrong.

      At the least, I would stay Mr. Anderson’s certification motion until the

Supreme Court decides Mr. Beckles’s case. Earlier this year, after the Supreme

Court granted certiorari in Welch v. United States, 578 U.S. __, 136 S. Ct. 1257

(2016) (another case from our circuit that limited Johnson’s reach) “unlike all other

circuits, the Eleventh Circuit refused to stay applications for successive § 2255

motions pending Welch.” Clayton, 2016 WL 3878156, at *7 (Martin,J.,

concurring) (quotation omitted). A month before the Welch decision, the full

Eleventh Circuit refused to vacate the case that Welch eventually abrogated. See

In re Rivero, No. 15-13089 (Mar. 16, 2016). A few days later, the full court also


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vacated a panel opinion that stayed a Johnson motion “until the Supreme Court

decides Welch.” In re Anthony Johnson, 810 F.3d 1247, 1253 (11th Cir. 2016);

see In re Anthony Johnson, 815 F.3d 733 (11th Cir. 2016). If either of those full-

court votes went the other way, hundreds of prisoners would have had more time to

file their cases. Instead, inmates had to re-file, and this court had to decide the

same cases again, this time in a crush of hundreds of new Johnson cases. Other

courts took steps to avoid this problem. I would prefer to avoid a repeat of the

problem once the Supreme Court decides Beckles.1

         That said, if Beckles overrules our precedent, Mr. Anderson should know

that “denials of successive applications are without prejudice” and so “our decision

does not preclude [him] from filing a new successive application.” In re Griffin,

__ F.3d __, 2016 WL 3002293, at *5 n.4 (11th Cir. May 25, 2016). The majority

says this language in Griffin was dicta and cites In re Baptiste, __ F.3d __, 2016

WL 3752118 (11th Cir. July 13, 2016). Issued last week, Baptiste held that this

court must deny any motion that “seeks leave to file a second or successive habeas

motion based on a claim we rejected in a previous application seeking such leave.”

Id. at *2. Baptiste is not consistent with the text of the habeas statute in two ways.

First,

         1
          Other courts are again taking steps to avoid this problem. See, e.g., Blow v. United
States, __ F.3d __, __, 2016 WL 3769712, at *2 (2d Cir. July 14, 2016) (“[B]ecause the Supreme
Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the
district court is instructed to hold Blow’s § 2255 motion in abeyance.”).
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             Baptiste was construing 28 U.S.C. § 2244(b)(1), which
             says any “claim presented in a second or successive
             habeas corpus application under section 2254 that was
             presented in a prior application shall be dismissed.” Of
             course, [] § 2255 motions . . . are filed by federal
             prisoners [and] § 2255 motions are certainly not brought
             “under section 2254,” which governs petitions filed by
             state prisoners. But the Baptiste panel ruled that even
             though § 2244(b)(1) does not mention § 2255 motions, it
             applies to them anyway, since “it would be odd [] if
             Congress had intended to allow federal prisoners” to do
             something state prisoners can’t do.

Clayton, 2016 WL 3878156, at *9 (Martin, J., concurring). And even going along

with the “it would be odd” rule of statutory construction and thereby assuming that

§ 2244(b)(1) applies to § 2255 motions, Baptiste is inconsistent with the statute in

a second way. The text of the habeas statute shows that it requires courts to

dismiss only claims that were already presented in an actual § 2255 motion, as

opposed to a mere request for certification of a successive § 2255 motion. Both

§ 2244 and § 2254 distinguish between “applications” (which are the § 2254

petitions and § 2255 motions filed in district courts) and “motions” (which are the

earlier request for certification filed in a court of appeals). Baptiste assumes that

“motion” and “application” mean the same thing, even though Congress carefully

distinguished the two. When Congress uses different words in this way, courts




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must presume those words mean different things. See, e.g., Envtl. Def. v. Duke

Energy Corp., 549 U.S. 561, 574, 127 S. Ct. 1423, 1432 (2007).2

       The majority’s treatment of § 2244(b)(1) highlights another problem with

Baptiste. According to the majority, its order “is with prejudice unless and until

Beckles or some future Supreme Court decision establishes a new rule of

constitutional law.” Maj. Op. at 8. This is not the way our court has ever treated

these certification motions. For example, before the Welch decision, this court

denied over a hundred motions to certify Johnson claims. See Robinson, 822 F.3d

at 1198–1201 (Martin, J., concurring) (listing cases). Those orders routinely told

prisoners they could file again if Welch overruled our precedent. And then after

Welch, dozens of panels of this court decided new certification motions in which

those same prisoners raised the same Johnson claims. Indeed, every active judge

on this court granted a motion from a prisoner who had an identical motion denied

prior to Welch. 3 Both prisoners and our court proceeded with the understanding


       2
          Attributing different meanings to Congress’s use of those different words is also the
only way to make sense of § 2244. When a claim is filed in a § 2255 motion, it actually gets
briefed by the parties, decided by a lower court, and then appealed. None of that input,
accountability, or deliberation exists with a motion to certify. I have recounted in some detail
the mistakes we, as a court, have made in these cases. In re Leonard, No. 16-13528, 2016 WL
3885037, at *7–*9 (11th Cir. July 13, 2016) (Martin, J., concurring).
        3
          See, e.g., In re Roundtree, No. 16-12554 (11th Cir. June 15, 2016); In re Brown, No.
16-12735 (11th Cir. June 15, 2016); In re Leone, No. 16-12687 (11th Cir. June 15, 2016); In re
Woodgett, No. 16-12461 (11th Cir. June 15, 2016); In re McGee, No. 16-12480 (11th Cir. June
15, 2016); In re Witchard, No. 16-12137 (11th Cir. June 14, 2016); In re Rowe, No. 16-12762
(11th Cir. June 13, 2016); In re Nix, No. 16-12465 (11th Cir. June 13, 2016); In re Glover, No.
16-12440 (11th Cir. June 10, 2016); In re Adams, No. 16-12417 (11th Cir. June 9, 2016); In re
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that “there is no rule against filing multiple applications for leave to file a

successive § 2255 petition.” In re Barber, No. 16-10107, slip op. at 32 (11th Cir.

Feb. 10, 2016) (Marcus, J., dissenting). And we granted those repeat motions even

though Welch was surely not, to use the majority’s phrasing, a “Supreme Court

decision establish[ing] a new rule of constitutional law.” Maj. Op. at 8. See Dodd

v. United States, 545 U.S. 353, 358, 125 S. Ct. 2478, 2482, (2005) (distinguishing

the decision in “which the right asserted was initially recognized” from the

decision that made that rule retroactive). Based on the majority’s logic, every one

of those motions we granted should have been dismissed instead. That can’t be

right.




Lamb, No. 16-12599 (11th Cir. June 10, 2016); In re Middleton, No. 16-12456 (11th Cir. June
7, 2016); In re Casado, No. 16-12282 (June 6, 2016); In re Sharp, No. 16-12326 (11th Cir. June
3, 2016); In re Cauley, No. 16-12186 (11th Cir. June 1, 2016).
         Every one of those granted motions was filed by a prisoner whose identical motion we
turned away prior to Welch. See Robinson, 822 F.3d at 1198–1201 (Martin, J., concurring)
(listing the motions we denied prior to Welch). Also, those are just a few examples from two
weeks in June. There are more like them.
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