              Case: 16-12519     Date Filed: 06/15/2016    Page: 1 of 9


                                                                          [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 16-12519-J
                           ________________________

IN RE: KEITH DEVON ADAMS,

                                                                           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: TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

B Y T H E P A N E L:

      Keith Devon Adams seeks authorization to file a second or successive 28

U.S.C. § 2255 motion. He can file such a motion only if it is “certified . . . by a

panel of the appropriate court of appeals to contain” either:

             (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
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            (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 application satisfies the requirements of this subsection.”

Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351,

1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an

applicant has made a prima facie showing that the statutory criteria have been met

is simply a threshold determination).

                                         I.

      Mr. Adams was sentenced under the Armed Career Criminal Act (“ACCA”),

which requires a higher prison sentence if a defendant convicted of being a felon in

possession of a firearm has three or more previous convictions for a “violent

felony.” 18 U.S.C. § 924(e)(1). The ACCA provides three definitions of “violent

felony.” First, § 924(e)(2)(B)(i) covers any offense that “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

This is known as the “elements clause.” Second, § 924(e)(2)(B)(ii) covers any

offense that “is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury




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to another.” The first 9 words of that subsection are called the “enumerated crimes

clause,” and the last 13 are called the “residual clause.”

        Without noting under which clause each prior conviction fell, Mr. Adams’s

presentence investigation report (“PSI”) stated that the ACCA enhancement

applied based on: (1) a 2001 Florida conviction for “robbery/carjacking”; (2) a

2005 Florida conviction for burglary of an unoccupied dwelling; and (3) a 2008

Florida conviction for possession of cocaine with intent to sell or deliver. Mr.

Adams objected to the PSI’s application of the ACCA enhancement. Among other

challenges, Mr. Adams objected to the use of his prior burglary conviction as an

ACCA predicate offense. He acknowledged the fact that burglary is enumerated in

the ACCA’s definition of violent felony, but he objected on the ground that a

property crime must involve a serious potential risk of physical injury in order to

be classified as a violent felony. After the government responded, asserting that

the objection was due to be overruled under prevailing caselaw, the probation

officer noted that the issue of whether Mr. Adams’s burglary conviction qualified

as a predicate offense was unresolved. At sentencing, the district court overruled

Mr. Adams’s objection and imposed the ACCA enhancement. The court did so

without stating under which clause of the ACCA Mr. Adams’s burglary conviction

fell.




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      In the instant application, Mr. Adams contends that his ACCA-enhanced

sentence is void in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in

which the Supreme Court held that the residual clause of the ACCA is

unconstitutionally vague.    The Supreme Court has determined that Johnson’s

holding is a new substantive rule of constitutional law that applies retroactively to

cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268

(2016).   Specifically, Mr. Adams asserts that his Florida burglary conviction

cannot serve as a predicate offense for the ACCA enhancement in light of Johnson.

For the reasons that follow, we conclude that Mr. Adams has made the requisite

prima facie showing because his prior Florida conviction for burglary of an

unoccupied dwelling may not qualify as a valid predicate offense after Johnson.

                                         II.

      Under Florida’s burglary statute, a person who unlawfully enters or remains

in a dwelling, structure, or conveyance with intent to commit a crime commits

burglary. Fla. Stat. § 810.02. The law defines “structure,” in relevant part, as “a

building of any kind, either temporary or permanent, which has a roof over it,

together with the curtilage thereof.” Id. § 810.011(a)(1). It defines “dwelling”

similarly. See id. § 810.011(a)(2). “Conveyance” does not contemplate a building

at all: it includes motor vehicles, ships, vessels, railroad cars, and aircrafts. Id.

§ 810.011(a)(3).


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       It is unclear from the record which clause of the ACCA the district court

employed when it concluded that Mr. Adams’s prior burglary conviction qualified

as a predicate offense. But Mr. Adams specifically lodged an objection, which the

district court overruled, to the classification of the burglary conviction as a residual

clause offense. Mr. Adams’s acknowledgement that burglary was an enumerated

ACCA offense does not appear to have been intended as a concession that his

Florida burglary conviction qualified as such; indeed, the probation office

specifically stated that the issue of whether it qualified was unresolved. The record

we have available to us is limited at this stage, but there is at least some suggestion

that the district court considered Mr. Adams’s burglary conviction a residual clause

offense.

      Moreover, at the time Mr. Adams was sentenced, a conviction under

Florida’s burglary statute was deemed an ACCA predicate under the residual

clause, rather than the elements clause or the enumerated crimes clause. The

statute contains no element of “attempted use, or threatened use of physical force

against the person of another.”       18 U.S.C. § 924(e)(2)(B)(i).         And, prior to

Johnson, the Supreme Court had suggested that a burglary as defined by Florida

law is not a violent felony under the ACCA’s enumerated crimes clause. See

James v. United States, 550 U.S. 192, 212 (2007). For a burglary statute to qualify

under that clause, “the least of the acts criminalized” under the statute must be


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“encompassed by the generic federal offense” of burglary. Moncrieffe v. Holder,

133 S. Ct. 1678, 1684 (2013). Generic burglary as delineated in the enumerated

crimes clause is defined as an offense “having the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). In James,

the Supreme Court “agree[d] that the inclusion of curtilage takes Florida’s

underlying offense of burglary outside the definition of generic burglary set forth

in Taylor, which requires an unlawful entry into, or remaining in, a building or

other structure.” 550 U.S. at 212.

      The Supreme Court also concluded in James that a Florida burglary

conviction was a violent felony under the ACCA’s residual clause. Id.; accord

United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006) (holding that a

Florida conviction for burglary of the curtilage constituted a violent felony under

the ACCA’s residual clause). In Matthews, we, like the Supreme Court in James,

determined that the Florida burglary statute was broader than generic burglary

because an individual could violate it without ever entering a structure, an element

the generic crime required. See id. at 1275. Further, the statute does not appear to

be divisible such that it still could be violated in a way that comports with the

generic definition of burglary. Rather than setting out the critical place-of-entry

element in the alternative—i.e., “a building or its curtilage”—the place-of-entry


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element encompasses a “building of any kind, either temporary or permanent,

which has a roof over it, together with the curtilage thereof.”           Fla. Stat.

§ 810.011(a)(1).

      This line of cases was the only binding legal basis for applying the ACCA to

Mr. Adams based on his burglary conviction.         In the absence of any record

evidence to the contrary, the status of the law at the time Mr. Adams was

sentenced—in addition to the nature of his objection at sentencing—suggests that

his sentence may have been enhanced under the residual clause. Under Johnson,

Mr. Adams’s residual clause enhanced sentence is void.           And his burglary

conviction likely cannot serve as a predicate offense under the enumerated crimes

clause as an alternative. See Descamps v. United States, 133 S. Ct. 2276 (2013).

      We recognize that, in In re Griffin, No. 16-12012, __ F.3d __, 2016 WL

3002293 (11th Cir. May 25, 2016), this Court concluded that Descamps did not

itself announce a new rule of constitutional law sufficient to satisfy § 2255(h)(2).

And, in In re Thomas, Nos. 16-12065, 16-12649, __ F.3d __, 2016 WL 3000325

(11th Cir. May 25, 2016), this Court concluded that Johnson did not invalidate the

use of a burglary conviction for ACCA purposes when the district court expressly

relied on the enumerated offenses clause, not the residual clause, in imposing the

enhancement, and the applicant asserted a standalone Descamps claim.




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      However, Griffin and Thomas do not preclude our consideration of

Descamps here. In this case, the sentencing court may have relied on the residual

clause in imposing Mr. Adams’s sentence based on his prior Florida burglary

conviction. Thus, his sentence may be invalid under Johnson. In Griffin, Johnson

was inapplicable because the petitioner was sentenced under the Guidelines, and in

Thomas, Johnson was inapplicable because the district court clearly did not rely on

the residual clause. Accordingly, the petitioners were forced to rely on Descamps

as a standalone claim. In contrast, Mr. Adams’s claim implicates Johnson, and the

ambiguity surrounding the sentencing court’s decision requires us to look to the

text of the relevant statutes, including the ACCA, to determine which, if any,

ACCA clauses Mr. Adams’s prior convictions fall under. In fulfilling this duty, we

should look to guiding precedent, such as Descamps, to ensure we apply the

correct meaning of the ACCA’s words. See Rivers v. Roadway Express, Inc., 511

U.S. 298, 313 n.12 (1994) (“[W]hen this Court construes a statute, it is explaining

its understanding of what the statute has meant continuously since the date when it

became law.”). Although Descamps bears on this case, it is not an independent

claim that is itself subject to the gatekeeping requirements.

      Mr. Adams, therefore, has made a “sufficient showing of possible merit” to

warrant fuller exploration by the district court of his Johnson claim.       In re

Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (internal quotation marks


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omitted). Our record, of course, is incomplete at this stage. Moreover, “[w]e do

not hear from the government,” the applicant lacks a meaningful opportunity to

brief the merits of his case, and we “do not have the time necessary to decide

anything beyond the prima facie question” because § 2244(b)(3)(D) instructs us to

render a decision on Mr. Adams’s application within 30 days. Jordan, 485 F.3d at

1358. Rather, we are exercising a screening function in adjudicating Mr. Adams’s

application. Our “limited determination” does not bind the district court, which is

to decide the “issues fresh, or in the legal vernacular, de novo.” In re Moss, 703

F.3d 1301, 1302 (11th Cir. 2013).

      APPLICATION GRANTED.




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