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                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 16-16710
                              ________________________

        D.C. Docket Nos. 4:16-cv-00143-HLM, 4:08-cr-00038-HLM-WEJ-1



JEFFREY BERNARD BEEMAN,

                                                                       Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                   (September 22, 2017)

Before JULIE CARNES and EDMONDSON, Circuit Judges, and WILLIAMS,∗
District Judge.


JULIE CARNES, Circuit Judge:

∗
 The Honorable Kathleen M. Williams, of the Southern District of Florida, sitting by
designation.
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      In 2009 Jeffrey Bernard Beeman was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), being a felon in

possession of ammunition, in violation of 18 U.S.C. § 922(g), and possession with

intent to distribute a mixture or substance containing a detectable amount of

cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Finding that Beeman was

subject to enhanced sentences for his firearm and ammunition offenses under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the district court

imposed three concurrent 210-month sentences. In 2016 Beeman filed a 28 U.S.C.

§ 2255 motion to vacate his sentence, contending that he was entitled to

resentencing because in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551

(2015), the Supreme Court had struck down part of the ACCA as

unconstitutionally vague. The district court denied his motion, and Beeman has

appealed.

I.    BACKGROUND

      In 1990 Beeman was convicted in Georgia of aggravated assault. In 1999 he

was convicted in Georgia of two counts of possession of cocaine with intent to

distribute. Then, in 2009, he was convicted of the federal firearm, ammunition,

and drug offenses giving rise to the 210-month sentences that he is challenging in

his § 2255 motion.


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      Normally a conviction for being a felon in possession of a firearm or

ammunition carries a statutory maximum sentence of ten years. 18 U.S.C.

§§ 922(g), 924(a)(2). But if a defendant who is convicted of one of those offenses

already has three or more convictions for a “violent felony” or a “serious drug

offense,” the ACCA provides that he must be sentenced to at least 15 years of

imprisonment. Id. § 924(e)(1). When Beeman was sentenced in 2009, the ACCA

defined a “violent felony” as follows:

      [A]ny crime punishable by imprisonment for a term exceeding one
      year . . . that—

      (i) has as an element the use, attempted use, or threatened use of
          physical force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or
           otherwise involves conduct that presents a serious potential risk of
           physical injury to another . . . .

Id. § 924(e)(2)(B). The first prong of that definition, § 924(e)(2)(B)(i), is known

as the “elements clause.” Mays v. United States, 817 F.3d 728, 730–31 (11th Cir.

2016). The second prong, § 924(e)(2)(B)(ii), is itself split into two clauses. The

first part, listing burglary, arson, extortion, or an offense involving the use of

explosives, is known as the “enumerated offenses clause,” and the second part is

known as the “residual clause.” Id.

      Beeman’s presentence investigation report (PSR) listed his conviction for

aggravated assault and two convictions for possession of cocaine with intent to


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distribute and concluded that, based on those convictions, he qualified for the

ACCA enhancement. Beeman did not object to that recommendation, and the

district court adopted it without further discussion. The PSR did not recommend

whether the aggravated assault conviction should be found to be a violent felony

for ACCA purposes under the elements clause or the residual clause or both, and

the district court did not specify whether its finding that the conviction qualified

was based on the elements clause or the residual clause or both. Beeman appealed

his convictions but not his sentences, and on July 8, 2010, this Court affirmed.

United States v. Beeman, 386 F. App’x 827, 835 (11th Cir. 2010).

      On June 26, 2015, the United States Supreme Court held that the ACCA’s

residual clause is unconstitutionally vague. Johnson, 135 S. Ct. at 2563. And in

April 2016, the Court held that the Johnson decision is retroactively applicable to

cases on collateral review. Welch v. United States, 578 U.S. __, 136 S. Ct. 1257,

1268 (2016).

      On June 7, 2016, Beeman filed his § 2255 motion, attacking his ACCA-

enhanced sentences for his firearm and ammunition offenses. His argument

proceeded in three parts. First, he contended that the Johnson decision invalidated

his ACCA sentences because when he was sentenced in 2009 his Georgia

conviction for aggravated assault would have qualified as a violent felony under

the residual clause of the ACCA. Second, he pointed out that his aggravated


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assault conviction was not a violent felony under the enumerated offenses clause

because assault is not included in that list of crimes. And third, he argued that a

conviction under the Georgia aggravated assault statute does not now qualify as a

violent felony under the elements clause. In making that argument about the

elements clause he relied heavily on the Supreme Court’s 2013 decision in

Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276 (2013), which is one in a

line of Supreme Court decisions describing how federal courts should determine

whether an offense qualifies as a predicate offense under the ACCA’s enumerated

offenses and elements clauses. See Mathis v. United States, 579 U.S. __, 136

S. Ct. 2243 (2016); Descamps, 133 S. Ct. 2276; Shepard v. United States, 544 U.S.

13, 125 S. Ct. 1254 (2005); Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143

(1990).

      The district court denied Beeman’s § 2255 motion as untimely and,

alternatively, on the merits. It determined that Beeman’s § 2255 motion was

untimely because he filed it more than a year after his judgment of conviction

became final and the motion failed to raise a true Johnson claim, instead “at its

core, rel[ying] on Descamps.” As an alternative ground, the court determined that

even under the Descamps decision, a Georgia conviction for aggravated assault

qualifies as a violent felony under the ACCA’s elements clause.




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II.   DISCUSSION

      A.     The Time Bar

      “We review de novo the district court’s determination that a § 2255 motion

to vacate is time-barred.” Drury v. United States, 507 F.3d 1295, 1296 (11th Cir.

2007). The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a

one-year statute of limitations to bring a § 2255 motion. 28 U.S.C. § 2255(f). The

limitations period begins to run on the latest of four possible triggering dates. See

id. Typically, the applicable triggering date is “the date on which the judgment of

conviction becomes final.” Id. § 2255(f)(1). Beeman cannot rely on that

limitations period, however, because he filed his § 2255 motion almost five years

after its expiration. Instead, he asserts that his § 2255 motion is timely because he

filed it within one year of the Supreme Court’s Johnson decision, bringing it within

the limitations period that begins on “the date on which the right asserted was

initially recognized by the Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable to cases on collateral

review.” Id. § 2255(f)(3).

      The § 2255(f) statute of limitations “requires a claim-by-claim approach to

determine timeliness.” See Zack v. Tucker, 704 F.3d 917, 924, 926 (11th Cir.

2013) (en banc); accord Davis v. United States, 817 F.3d 319, 327–28 (7th Cir.

2016) (“But as every other circuit to have considered the question has concluded,


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and we now hold, the timeliness of each claim asserted in either a section 2255

motion or a petition challenging a state-court conviction under 28 U.S.C. § 2254

must be considered independently.”) (footnotes omitted). In other words, if a

§ 2255 movant asserts that his § 2255 motion is timely because he filed it within

one year of the Supreme Court’s issuance of a decision recognizing a new right, we

must determine whether each claim asserted in the motion depends on that new

decision. If a particular claim does not depend on the new decision, that claim is

untimely and must be dismissed.

      In order for a Supreme Court decision to restart the one-year statute of

limitations under § 2255(f)(3), the decision must both (1) recognize a new right

and (2) be made retroactively applicable to cases on collateral review. See 28

U.S.C. § 2255(f)(3). The issuance of the Supreme Court’s Johnson decision meets

both of those requirements. The Supreme Court held in Welch that Johnson

announced a new rule that is retroactively applicable to cases on collateral review.

See Welch, 136 S. Ct. at 1268. Because the Supreme Court issued Johnson on June

26, 2015, Johnson, 135 S. Ct. 2551, a § 2255 movant wishing to raise a Johnson

claim had until June 26, 2016, to file a motion obtaining that claim. See 28 U.S.C.

§ 2255(f)(3).

      On the other hand, the issuance of the Descamps decision cannot qualify as a

triggering date under § 2255(f)(3). It is true that we have held that the Descamps


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decision is retroactively applicable to cases on collateral review. Mays, 817 F.3d

at 733–34. But being retroactively applicable to cases on collateral review is only

part of the test for restarting the statute of limitations. AEDPA also requires that

the right have been “newly recognized by the Supreme Court.” 28 U.S.C.

§ 2255(f)(3).

      In holding that the Descamps decision is retroactively applicable to cases on

collateral review, our Mays decision makes clear that Descamps did not set out a

newly recognized right. In fact, we based our decision on the recognition that

“Descamps did not announce a new rule—its holding merely clarified existing

precedent.” 817 F.3d at 734; see also Descamps, 133 S. Ct. at 2283 (“Our caselaw

explaining the categorical approach and its ‘modified’ counterpart all but resolves

this case.”). And as we have explained, “[i]f the decision merely clarifies an old

rule, . . . . the petitioner will not be able to take advantage of the extended statute of

limitations under § 2255, which requires a newly recognized right by the Supreme

Court.” Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 n.4 (11th Cir.

2012). As a result, a § 2255 movant wishing to raise a Descamps claim cannot rely

on subsection (f)(3) as the starting point for the calculation of the limitations

period. Instead, he must file his motion within one year of one of the other

triggering dates set out in § 2255(f).




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      Beeman’s judgment of conviction became final in October 2010, meaning

that the one-year statute of limitations under § 2255(f)(1) expired in October 2011.

He did not file his § 2255 motion until June 7, 2016, almost five years later. The

extended § 2255(f)(3) limitations period for raising a Johnson claim expired on

June 26, 2016, the one-year anniversary of the Johnson decision. As a result, if his

§ 2255 motion raised a Johnson claim, that claim was timely, but any other claim

the motion raised—including a Descamps claim—was untimely.

      A Johnson claim and a Descamps claim make two very different assertions.

A Johnson claim contends that the defendant was sentenced as an armed career

criminal under the residual clause, while a Descamps claim asserts that the

defendant was incorrectly sentenced as an armed career criminal under the

elements or enumerated offenses clause. Beeman raised both of those claims in his

§ 2255 motion. He focused largely on an argument that the 2013 Descamps

decision meant that his Georgia conviction for aggravated assault could no longer

qualify as a violent felony under the elements clause. That is obviously a

Descamps claim. But he also claimed that when sentencing him in 2009, the

district court relied on the residual clause to find that his aggravated assault

conviction qualified as a violent felony under the ACCA. In support of that

proposition, he asserted that aggravated assault in Georgia was a crime “which

historically qualified as an ACCA predicate under that statute’s residual clause.”


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Therefore, he contended that the Johnson decision required he be resentenced

without the ACCA enhancement. That sounds like a Johnson claim.

      The district court determined that Beeman’s § 2255 motion was untimely

because it raised only a Descamps claim. We agree that the motion raised an

untimely Descamps claim, and that part of the district court’s order is due to be

affirmed on that ground.

      We disagree, however, with the district court’s conclusion that Beeman’s

§ 2255 motion did not also assert a Johnson claim. Given Beeman’s heavy

reliance on Descamps in support of his motion, the district court’s conclusion on

that point is understandable. Nevertheless, Beeman’s motion did allege that,

Georgia aggravated assault, which was one of his three qualifying ACCA

convictions, “historically qualified as an ACCA predicate under [the ACCA]’s

residual clause,” and that “in recent years, the Eleventh Circuit has been using the

residual clause as a default home for many state statutes that might otherwise have

been counted under the elements or enumerated crimes clauses.” He also filed his

motion 19 days before the one-year anniversary of the Johnson decision. See 28

U.S.C. § 2255(f)(3) (“The limitation period shall run from . . . the date on which

the right asserted was initially recognized by the Supreme Court . . . .”). Under the

circumstances, the motion said enough to assert a Johnson claim.




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       Regardless of the ground stated in the district court’s order or judgment,

“[w]e may affirm on any ground supported by the record.” Castillo v. United

States, 816 F.3d 1300, 1303 (11th Cir. 2016). In this case, the record makes clear

that the district court’s dismissal of the § 2255 motion was the correct result as to

the Johnson claim because—although timely raised—Beeman has not carried his

burden of proving that claim on the merits. He did not request an evidentiary

hearing in the district court, and he has not suggested in this Court that a remand

for an evidentiary hearing would do him any good. Instead, he has chosen to

proceed on the basis of the record as it now exists, and we consider his Johnson

claim on that record.

       B.     The Merits

       To prove a Johnson claim, a movant must establish that his sentence

enhancement “turn[ed] on the validity of the residual clause.” In other words, he

must show that the clause actually adversely affected the sentence he received. In

re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016).1 Only if the movant would not

have been sentenced as an armed career criminal absent the existence of the

residual clause is there a Johnson violation. That will be the case only (1) if the

1
  It makes no difference that Thomas was decided in the context of a prisoner’s application for
certification to file a second or successive § 2255 motion. The Thomas decision held that an
applicant could not make even a prima facie showing of a Johnson claim if the Johnson decision
did not affect his sentence. An applicant who cannot make even a prima facie showing that his
§ 2255 motion contains a Johnson claim will necessarily be unable to shoulder his burden of
proving that he is actually entitled to relief under the Johnson decision.


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sentencing court relied solely on the residual clause, as opposed to also or solely

relying on either the enumerated offenses clause or elements clause (neither of

which were called into question by Johnson) to qualify a prior conviction as a

violent felony, and (2) if there were not at least three other prior convictions that

could have qualified under either of those two clauses as a violent felony, or as a

serious drug offense.

       Critical to our decision on the merits issue in this case is the burden of proof

and persuasion. The Government contends that a § 2255 movant bears the burden

of proving that his sentencing enhancement was imposed because the sentencing

court used the residual clause. Beeman argues that if it is merely possible that the

court relied on that clause to enhance the sentence, then he has met his burden. 2

We conclude, and hold, that, like any other § 2255 movant, a Johnson § 2255

claimant must prove his claim. 3 To prove a Johnson claim, the movant must show

that—more likely than not—it was use of the residual clause that led to the

sentencing court’s enhancement of his sentence. If it is just as likely that the
2
  Actually, Beeman puts it more strongly. He says that unless the record affirmatively shows
that the district court relied on a clause other than the residual clause, we are required to
conclude that it was the residual clause on which the enhancement was based.
3
  Our Court has previously stated in dicta that a Johnson movant does bear the burden of proof,
as argued by the Government. See In re Moore, 830 F.3d 1268, 1272–73 (11th Cir. 2016). In a
subsequent opinion, the Court endorsed in dicta the position now advocated by Beeman that a
movant must merely show the possibility that the court relied on the residual clause to enhance
the sentence. See In re Chance, 831 F.3d 1335, 1338–42 (11th Cir. 2016). As to the case before
us now, we have not deferred to dicta. We have examined this issue afresh in reaching our
conclusion based on what we see as traditional legal principles.


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sentencing court relied on the elements or enumerated offenses clause, solely or as

an alternative basis for the enhancement, then the movant has failed to show that

his enhancement was due to use of the residual clause.

       We rest our conclusion that a § 2255 movant must prove his Johnson claim

on a long line of authority holding that a § 2255 movant “bears the burden to prove

the claims in his § 2255 motion.” Rivers v. United States, 777 F.3d 1306, 1316

(11th Cir. 2015); LeCroy v. United States, 739 F.3d 1297, 1321 (11th Cir. 2014);

Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978) (“Under Section 2255,

[the movant] had the burden of showing that he was entitled to relief.”); Coon v.

United States, 441 F.2d 279, 280 (5th Cir. 1971) (“A movant in a collateral attack

upon a judgment has the burden to allege and prove facts which would entitle him

to relief.”).

       And we are not alone in so holding. See United States v. Pettiford, 612 F.3d

270, 277 (4th Cir. 2010) (“[T]he district court must determine whether the [§ 2255

movant] has met his burden of showing that his sentence is unlawful on one of the

specified grounds.”); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978)

(“In seeking collaterally to attack their convictions under section 2255, [movants]

bear the burden of establishing by a preponderance of the evidence that they are

entitled to relief.”); Zovluck v. United States, 448 F.2d 339, 341 (2d Cir. 1971)

(stating, in the context of an appeal from the denial of a § 2255 motion, that


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“[t]here is no doubt but that appellant had the burden of proof”); United States v.

Trumblay, 234 F.2d 273, 275 (7th Cir. 1956) (“On a motion to vacate, set aside or

correct a sentence, a movant has the burden of proof.”); Taylor v. United States,

229 F.2d 826, 832 (8th Cir. 1956) (“Because the statutory proceeding is a collateral

attack upon the judgment of conviction, the burden is on the [movant] to establish

a basis for relief under some one or more of the grounds set forth in [§ 2255].”).

      As to our own precedent requiring a § 2255 movant to prove his entitlement

to relief, in the Rivers decision, we held that Rivers’s “motion must . . . be denied”

because he “[had] not met his burden of proof” where the only evidence he offered

in support of his claim was testimony that the district court did not credit. 777

F.3d at 1318; see also id. at 1316.

      Similarly, in the LeCroy case, the petitioner asserted that counsel was

ineffective for failing to call an expert witness who could have presented

mitigation evidence about his childhood. 739 F.3d at 1313–14. His attorneys had

decided not to present the expert witness because they feared that if they did, the

Government would conduct its own evaluation of him and present a rebuttal expert

whose evidence could be damaging. Id. at 1321. LeCroy argued that his

attorneys’ “fear of a Government evaluation” was irrational and that they could

have allowed the Government to conduct the evaluation, seen what it said, and then




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decided whether to present the defense expert. Id. This Court explained that

LeCroy’s argument:

      inverts the burden of proof, which on a § 2255 petition belongs to the
      petitioner. If LeCroy’s claim is that a Government evaluation would
      have been less damaging than [his expert]’s evaluation—and that,
      accordingly, the defense team ought to have been more willing to roll
      the dice and see what the Government would come up with—then to
      carry that argument LeCroy would actually need to show that the
      Government evaluation would be favorable. Otherwise, LeCroy is
      asking us to disregard the burden of proof and speculate about what
      might have been, drawing an inference in his favor that the record
      simply does not support. Here, where LeCroy is either unwilling or
      unable to demonstrate that the Government’s evaluation would in fact
      have been favorable—as opposed to conceivably being favorable—he
      has failed to carry his burden in showing prejudice.

Id. at 1321–22 (underlined emphasis added).

      Our long line of decisions holding that a § 2255 movant must bear the

burden of proving his entitlement to relief makes sense. “[O]ne of the principal

functions of AEDPA was to ensure a greater degree of finality for convictions.”

Johnson v. United States, 340 F.3d 1219, 1224 (11th Cir. 2003); see also Jones v.

United States, 304 F.3d 1035, 1039 (11th Cir. 2002) (“A fundamental purpose for

the AEDPA was to establish finality in post-conviction proceedings.”). Even

before AEDPA, the Supreme Court had instructed us that “direct appeal is the

primary avenue for review of a conviction or sentence . . . . When the process of

direct review . . . comes to an end, a presumption of finality and legality attaches to

the conviction and sentence.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct.


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3383, 3391–92 (1983). Finality “is essential to the operation of our criminal

justice system. Without finality, the criminal law is deprived of much of its

deterrent effect.” Teague v. Lane, 489 U.S. 288, 309, 109 S. Ct. 1060, 1074

(1989). Putting the burden of proof and persuasion on the Government in a § 2255

proceeding to show the absence of a constitutional violation or that an error had no

effect on the judgment would undermine the presumption of finality that attaches

at the end of the direct appeal process. It would go a long way toward creating a

presumption of non-finality and undermine the important interests that finality

protects.

      In spite of all the above caselaw, Beeman contends that “[t]he rule must be

this: A Johnson movant has met his burden to show that he has a right to § 2255

relief . . . unless the record affirmatively shows that the district court relied upon

the ACCA’s elements clause.” He would, to borrow the language of our LeCroy

decision, have us invert the burden of proof and persuasion by taking well-

established principles developed in numerous decisions over the years and turning

them entirely upside down. We have to do this, he urges, because district courts

have never been required to say, and as a result have not always expressly stated,

which of the ACCA’s clauses they are relying on when finding that a conviction

qualifies as a violent felony. As a result, Beeman argues, if we treat Johnson

movants like every other § 2255 movant, and require them to shoulder their burden


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of proof and persuasion, it is unlikely that many of these prisoners will succeed in

showing they are due relief.

       Even if we accept Beeman’s factual premise about what sentencing records

typically show or don’t show, we reject his legal premise that the burden of proof

and persuasion should be overhauled for the purpose of increasing the number of

cases in which the movant prevails. The burden of proof and persuasion reflects

longstanding and fundamental interests in finality. It is by application of the

appropriate burden that the outcome of a case is supposed to be determined, not the

other way around. This approach is as true with Johnson claims as with any other

type of claim.

       Nor are we persuaded by Beeman’s argument that requiring a § 2255

movant raising a Johnson claim to carry his burden of proof and persuasion would

make the outcome depend on the “fluke” of a district court having expressly stated

which clause it was relying on. If true, that would be equally true whichever side

bears the burden. It is no more arbitrary to have the movant lose in a § 2255

proceeding because of a silent record than to have the Government lose because of

one. What would be arbitrary is to treat Johnson claimants differently than all

other § 2255 movants claiming a constitutional violation.4


4
  We do not mean to imply that every sentencing record will lack sufficient evidence about
whether the district court relied on the residual clause in finding that the defendant was an armed
career criminal. Some sentencing records may contain direct evidence: comments or findings
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       Beeman concedes that there is nothing in the record suggesting that the

district court relied on only the residual clause in sentencing him. In his § 2255

motion, he stated in conclusory terms that the district court must have relied on the

residual clause, but nothing in the record supports this argument; and Beeman has

pointed to no precedent in 2009 holding, or otherwise making obvious, that a

violation of Georgia’s aggravated assault statute qualified as a violent felony only

under the residual clause.5 Instead, citing to no authority, his motion merely

asserts in general terms that “a Georgia conviction for aggravated assault . . . [has]

historically qualified as an ACCA predicate under [the ACCA]’s residual clause.”




by the sentencing judge indicating that the residual clause was relied on and was essential to
application of the ACCA in that case. Nor do we mean to suggest that there will not sometimes
be sufficient circumstantial evidence to show the specific basis of the enhancement. For
example, there could be statements in the PSR, which were not objected to, recommending that
the enumerated clause and the elements clause did not apply to the prior conviction in question
and did not apply to other prior convictions that could have served to justify application of the
ACCA. Or the sentencing record may contain concessions by the prosecutor that those two other
clauses do not apply to the conviction in question or others. And there could be other
circumstances on which a movant can rely; the above are but a few examples. Each case must be
judged on its own facts.
5
   We note that Beeman has likewise pointed to no precedent since 2009 so holding. But even if
such precedent had been announced since Beeman’s sentencing hearing, it would not answer the
question before us. What we must determine is a historical fact: was Beeman in 2009 sentenced
solely per the residual clause? And as noted, Beeman bears the burden of proving that historical
fact. Certainly, if the law was clear at the time of sentencing that only the residual clause would
authorize a finding that the prior conviction was a violent felony, that circumstance would
strongly point to a sentencing per the residual clause. However, a sentencing court’s decision
today that Georgia aggravated assault no longer qualifies under present law as a violent felony
under the elements clause (and thus could now qualify only under the defunct residual clause)
would be a decision that casts very little light, if any, on the key question of historical fact here:
whether in 2009 Beeman was, in fact, sentenced under the residual clause only.


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Beeman—relying only on cases involving Florida burglary convictions—also

contends that this Court has “been using the residual clause as a default home for

many state statutes that might otherwise have been counted under the elements or

enumerated crimes clauses.” These general observations, however, are not enough

to carry his burden of establishing that he, in fact, was sentenced as an armed

career criminal here solely because of the residual clause.

       In his reply to the Government’s answer to his § 2255 motion, Beeman

conceded that it is unclear6 from the record whether the sentencing court had relied

on the residual clause or the elements clause, or both, in finding that his aggravated

assault conviction qualified as a violent felony. “Where, as here, the evidence does

not clearly explain what happened . . . the party with the burden loses.” Romine v.

Head, 253 F.3d 1349, 1357 (11th Cir. 2001); see also Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 56, 126 S. Ct. 528, 533–34 (2005) (explaining that the term

“burden of persuasion” means that the party with the burden “loses if the evidence

is closely balanced”); Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d

1375, 1378–79 (Fed. Cir. 2015) (“Failure to prove the matter as required by the

6
  The “clear/unclear test” discussed in In re Rogers, 825 F.3d 1335 (11th Cir. 2016) is
inapplicable here. That test was established expressly as a means of making a preliminary
determination about whether a habeas petitioner had made out a prima facie showing sufficient
to warrant leave to file a second or successive section 2255 motion. The “clear/unclear test”
merely allows a defendant to bring a Johnson claim and the opportunity—at the merits stage—to
produce evidence establishing that he was actually sentenced solely under the residual clause.
Here, Beeman has been permitted to raise his claim; but his lack of evidence has failed to satisfy
his ultimate burden of proof.


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applicable standard means that the party with the burden of persuasion loses on

that point—thus, if the fact trier of the issue is left uncertain, the party with the

burden loses.”) (quotation marks omitted); Lovell ex rel. Lovell v. Poway Unified

Sch. Dist., 90 F.3d 367, 373 (9th Cir. 1996) (“In general, if the evidence is evenly

balanced, such that a decision on the point cannot be made one way or the other,

then the party with the burden of persuasion loses.”); Cuppett v. Duckworth, 8 F.3d

1132, 1140 n.5 (7th Cir. 1993) (“A party with the burden of persuasion loses if he

fails to meet that burden.”).

      Given this record, Beeman’s Johnson claim was therefore due to be

dismissed because he failed to carry his burden of proof. Specifically, he failed to

prove—that it was more likely than not—he in fact was sentenced as an armed

career criminal under the residual clause. Having failed to prove that but for the

residual clause he would have received a different sentence, he cannot prevail.

For that reason, we AFFIRM.




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WILLIAMS, District Judge, Dissenting:

         I agree with the majority that Beeman’s Johnson claim is timely, 1 and that

he unequivocally bears the burden of establishing his right to relief. I cannot

agree, however, that he has failed to adequately demonstrate that he was sentenced

under the residual clause of the Armed Career Criminal Act (“ACCA”), or that his

claim is substantively without merit. Specifically, I do not believe that the merits

of Beeman’s timely Johnson claim can be properly assessed without reaching the

question of whether his conviction for aggravated assault in Georgia qualifies as a

proper predicate offense under the elements clause of the ACCA, an issue that was

fully briefed and ripe for adjudication on this record.

         Since the Supreme Court’s decision in Johnson—or more specifically the

pronouncement in Welch that Johnson would be retroactively applicable on

collateral review—courts have reviewed a torrent of habeas petitions challenging

sentences that relied on the mandatory minimums meted out pursuant to the

ACCA. In each case, the same standard has been applied: First, the movant must

show that he was sentenced under the now-invalidated residual clause of the


1
    I also agree with the majority’s implicit rejection of the Government’s arguments regarding
    procedural default or untimeliness under AEDPA, which would result in eligible defendants
    “remain[ing] imprisoned solely because [they] did not raise an argument on appeal that was
    foreclosed by Supreme Court precedent at the time—and would have been deemed frivolous.”
    Duhart v. United States, No. 16-cv-61499- MARRA, 2016 WL 4720424, at *3 (S.D. Fla. Sept.
    9, 2016); see also West v. United States, No. 16-cv-22459-KMW (S.D. Fla. Mar. 22, 2017);
    Vasquez v. United States, No. 16-cv-14247-JEM (S.D. Fla. Dec. 6, 2016), report and
    recommendation adopted, No. 16-cv-14247-JEM (S.D. Fla. Feb. 14, 2017).
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ACCA. Second, the movant must show that he could not have been sentenced

under any other portion of the statute, namely the elements clause and the

enumerated clause. See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015)

(clarifying that “[the] decision does not call into question application of the Act to

the four enumerated offenses, or the remainder of the Act’s definition of a violent

felony.”). I agree that the burden of making this showing and demonstrating a

right to relief rests squarely with the movant—here, Beeman. Upon a review of his

motion and the record, however, I believe that Beeman has met that burden.

      As an initial matter, the majority conflates Beeman’s argument that he could

not have been sentenced under the elements clause—made in the context of

establishing his Johnson claim—with the argument that he was improperly

sentenced under the elements clause—which would constitute an untimely

Descamps claim.      Specifically, the majority observes that Beeman’s petition

“focused largely on an argument that the 2013 Descamps decision meant that his

Georgia conviction for aggravated assault could no longer qualify as a violent

felony under the elements clause” and concludes that this “is obviously a

Descamps claim.”

      This conclusion, however, ignores both the unambiguous statements

presented in Beeman’s habeas petition and the established standards of the courts

for demonstrating a defendant’s right to relief under Johnson. With regard to the


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former, Beeman’s motion in the district court opened with the following statement:

“Mr. Beeman challenges his sentence on one ground: In light of Johnson v. United

States, the 210-month prison sentences on Counts One and Four, each imposed

under [the ACCA], are unlawful.” The motion goes on to argue that “the ACCA’s

residual clause, the basis for Mr. Beeman’s harsh, ACCA-enhanced sentence . . . is

now extinct,” and that Beeman is entitled to relief because, in light of that change

in the law, he no longer has three qualifying predicate crimes under the remaining

language of the ACCA.

      As to existing precedent on this issue, it has been established in the context

of second or successive habeas petitions that “when an applicant’s ‘claim

implicates Johnson,’ we must apply binding Supreme Court precedent such as

Descamps, even if this precedent does not on its own establish ‘an independent

claim that is itself subject to the gatekeeping requirements [of 28 U.S.C. §

2255(h)]’ . . . in determining whether a prior conviction would still support an

enhanced ACCA sentence.” In re Rogers, 825 F.3d 1335, 1339 (11th Cir. 2016);

see also In re Adams, 825 F.3d 1283, 1286 (11th Cir. 2016) (distinguishing cases

where “petitioners were forced to rely on Descamps as a standalone claim” from

cases where Johnson is implicated because “the sentencing court may have relied

on the residual clause,” and finding in the latter situation that “the ambiguity

surrounding the sentencing court's decision requires us to look to the text of the


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relevant statutes, [and] . . . guiding precedent, such as Descamps, to ensure we

apply the correct meaning of the ACCA's words.”). Similarly, establishing that a

predicate offense could not qualify under the elements clause by applying the

Descamps framework has been part and parcel of many district court

determinations that a movant is entitled to relief under Johnson.       See, e.g.,

Wojcieszak v. United States, 196 F. Supp. 3d 1319 (S.D. Fla. 2016); Cochran v.

United States, No. 16-22506-CIV, 2017 WL 3084582 (S.D. Fla. June 16, 2017),

report and recommendation adopted, No. 16-22506-CIV, 2017 WL 3085336 (S.D.

Fla. July 19, 2017); Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL

7242162 (E.D. Mo. Dec. 15, 2016), appeal dismissed, No. 17-1199, 2017 WL

3273416 (8th Cir. Feb. 8, 2017); Nichols v. United States, No. 1:04-CR-68-TRM-

CHS-1, 2016 WL 5921780 (E.D. Tenn. Oct. 11, 2016); United States v. Wilson,

No. CR 96-0157 (ESH), 2017 WL 1383644 (D.D.C. Apr. 18, 2017); Shabazz v.

United States, No. 3:16-CV-1083 (SRU), 2017 WL 27394 (D. Conn. Jan. 3, 2017);

Memoli v. United States, No. 04CR140 (JSR), 2017 WL 3559190 (S.D.N.Y. July

11, 2017), report and recommendation adopted in part, No. 16-CV-4097 (JSR),

2017 WL 3504918 (S.D.N.Y. Aug. 15, 2017).

      Though presented as a distinct “timeliness” holding, the majority’s

misapprehension of Beeman’s Descamps arguments directly impacts the Court’s

analysis on the merits of his Johnson claim. As set out above, in order to prevail


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on a Johnson claim, a movant must first establish that he was sentenced under the

residual clause, and then must show that his predicate crimes could not qualify

under any other portion of the ACCA. But precluding discussion of Descamps in

support of a Johnson motion contrives an issue with regard to both of these

required showings. As to the first prong, it forecloses an avenue of evidentiary

support that, in many instances, could conclusively demonstrate a sentencing

court’s reliance on the now-defunct residual clause. As to the second, it creates a

standard under which the movant must establish that his predicate crimes could not

qualify under any remaining clause of the ACCA, without allowing him to argue

that his predicate crimes do not qualify under the elements clause based on binding

Supreme Court precedent.2

         The case at hand is illustrative of this conflict, particularly with regard to the

first prong of Johnson. By artificially delineating what constitutes a Johnson

argument—and by disposing of Beeman’s petition without reaching the second

required showing for success on a Johnson claim—the majority elides all of

Beeman’s elements-clause arguments from their Johnson analysis, leaving Beeman

with “insufficient” assertions regarding the sentencing court’s reliance on the

residual clause, which the majority peremptorily rejects. In so doing, the majority

2
    As the majority correctly points out, Descamps did not articulate a new rule of constitutional
    law, but rather “merely clarified existing precedent.” Mays v. United States, 817 F.3d 728, 734
    (11th Cir. 2016). If that is the case, not only is Beeman permitted to rely on Descamps in
    arguing that he is entitled to Johnson relief, but he is, in fact, required to do so.
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has set up a straw man regarding Beeman’s Johnson arguments that they then

proceed to knock down.

      The majority opinion’s discussion of the merits of Beeman’s Johnson claim

starts off on the right track. It accurately explains that, in order to obtain relief,

Beeman must show that “(1) [] the sentencing court relied solely on the residual

clause” and “(2) [] there were not at least three other prior convictions that could

have qualified under [the elements or the enumerated] clauses as a violent felony,

or as a serious drug offense.” It goes on to discuss the appropriate burden of proof,

and states that a movant must first demonstrate that it is “more likely than not” that

he was sentenced under the residual clause in order to obtain relief under Johnson.

Our paths diverge, however, on the question of how that standard may be met.

      When approaching this question, I do not write on a blank slate. Previous

decisions of this Court have posited a “clear/unclear” test that has been

consistently applied when answering this precise question in the Johnson context

on applications for leave to file a second or successive habeas petition. Under that

test, Johnson is “implicated” when the sentencing court did not specify the

statutory basis for the qualifying predicates and there is no precedent establishing

that the predicates would qualify under one of the remaining ACCA clauses. In re

Rogers, 825 F.3d 1335, 1339 (11th Cir. 2016) (citing, among others, In re Adams,

825 F.3d at 1284). In such circumstances, “courts must apply Descamps and other


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binding Supreme Court precedent in determining whether a prior conviction would

still support an enhanced ACCA sentence.” Id. There is no logically sound

justification—and none is offered by the majority—for discarding the clear/unclear

paradigm and approaching a Johnson claim differently in the context of an initial

habeas petition.3 Indeed, many district courts across the country have adopted this

approach in evaluating Johnson claims on initial habeas petitions with an unclear

sentencing record. See, e.g., United States v. Booker, No. 16-cv-1107, 2017 WL

829094, at *3 (D.D.C. Mar. 2, 2017) (noting that “[f]irst, judges are not required

by law to state at sentencing whether they are relying on the residual clause or the

elements clause. . . . [and] [s]econd, there was no practical reason for judges to

make this distinction at sentencing prior to June 26, 2015, when the Supreme Court

decided that the residual clause was void for vagueness.”); Burgess v. United

States, No. CR493-205, 2017 WL 1943988, at *3 n.9 (S.D. Ga. Apr. 27, 2017),

report and recommendation adopted, No. CR493-205, 2017 WL 2834492 (S.D.

Ga. June 29, 2017) (“Movant’s burden is only to show that—absent a clear

3
    As applied in the “gatekeeping” context of a second or successive habeas petition, the purpose
    of the clear/unclear test is to permit a petitioner to prove a constitutional right to relief in a
    circumstance where “it necessarily is unclear whether the court relied on a constitutionally
    valid or a constitutionally invalid legal theory.” United States v. Geozos, No. 17-35018, 2017
    WL 3712155, at *4 (9th Cir. Aug. 29, 2017). That same inquiry is precisely the question that
    must be answered when ruling on the merits of a Johnson claim, given that a petitioner is only
    entitled to relief under that decision if he is able to prove that he was sentenced under a
    constitutionally infirm provision of the ACCA. As such, the previous reasoning of this Court
    in cases such as In re Chance, In re Rogers, In re Adams, and many others—as well as the
    decisions of the other courts cited infra—is both instructive and highly persuasive in deciding
    the issue before us.
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record—the sentencing judge may have used the residual clause.”); United States

v. James, No. 06-20172-JWL, 2016 WL 3936495 (D. Kan. July 21, 2016); United

States v. Hamilton, 235 F. Supp. 3d 1229 (N.D. Okla. 2017); Williams v. United

States, No. 4:16CV00993 ERW, 2017 WL 895910 (E.D. Mo. Mar. 7, 2017);

Thrower v. United States, 234 F. Supp. 3d 372 (E.D.N.Y. 2017); United States v.

Wolf, No. 1:04-CR-347-1, 2016 WL 6433151 (M.D. Pa. Oct. 31, 2016); United

States v. Ballard, No. CR 03-810, 2017 WL 2935725 (E.D. Pa. July 10, 2017);

Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162 (E.D. Mo.

Dec. 15, 2016), appeal dismissed, No. 17-1199, 2017 WL 3273416 (8th Cir. Feb.

8, 2017).

      Even absent these decisions, however, it is clear that any alternative to this

test—in other words, any standard under which an unclear sentencing record

precludes relief under Johnson—would lead to unwarranted and inequitable

results. In his briefs, and again at oral argument, Beeman offered the example

from In Re: Chance, 831 F.3d 1335 (11th Cir. 2016), involving two defendants,

sentenced on the same day, for the same offense, by the same judge, with the same

ACCA predicates. Under the majority’s rationale, one of the defendants could

bring a Johnson claim because the judge specified that he was sentenced under the

residual clause, but the other defendant could not, because the judge used no such

language and made no specific reference to any ACCA sub-clause. Adopting the


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approach of the majority and permitting this scenario to play out in our courts not

only would be unfair, but also would nullify the retroactive effect of a change in

the law pronounced by the Supreme Court. 4 I can see no basis for predicating a

defendant’s right to relief on the precision of the verbiage employed by a judge, an

attorney, or even a defendant himself at the time of sentencing, when the highest

court has announced that “[t]he residual clause is invalid under Johnson, so it can

no longer mandate or authorize any sentence.” Welch v. United States, 136 S. Ct.

1257, 1265 (2016).5             As such, it should “make[] no difference whether the

sentencing judge used the words ‘residual clause’ or ‘elements clause,’ or some

similar phrase”; courts should not “penalize a movant for a [sentencing] court’s

discretionary choice not to specify under which clause of Section 924(e)(2)(B) an

offense qualified as a violent felony.” United States v. Winston, 850 F.3d 677, 682

(4th Cir. 2017) (citing with approval In re Chance, 831 F.3d 1335); see also United

States v. Geozos, No. 17-35018, 2017 WL 3712155 (9th Cir. Aug. 29, 2017)

4
    See also United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (acknowledging that such
    an approach “would result in ‘selective application’ of the new rule of constitutional law
    announced in Johnson [], violating ‘the principle of treating similarly situated defendants the
    same.’) (internal citations omitted).
5
    As this Court has recently observed, “[i]t is a safe operating assumption that when the Supreme
    Court articulates a standard, it actually means the words it has used to set out that standard. . ..”
    United States v. Eddy Wilmer Vail-Bailon, No. 15-10351, 2017 WL 3667647 (11th Cir. Aug.
    25, 2017). In the case of Johnson, the plain language of the decision makes clear that relief
    under the holding is not predicated upon a specific finding at sentencing, but rather the absence
    of a constitutional basis for the sentence imposed. Welch, 136 S. Ct. at 1265 (“Johnson
    establishes, in other words, that ‘even the use of impeccable factfinding procedures could not
    legitimate’ a sentence based on that clause.”).


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(citing with approval In re Chance, 831 F.3d 1335). If Johnson means that an

inmate’s [] companion conviction should not have served as [a predicate offense

under the statute] . . . then the text of [the statute] no longer authorizes his sentence

and his imprisonment is unlawful.” In re Chance, 831 F.3d at 1341; see also

Geozos, 2017 WL 3712155 at *4 (“[W]hen it is unclear from the record whether

the sentencing court relied on the residual clause, it necessarily is unclear whether

the court relied on a constitutionally valid or a constitutionally invalid legal

theory.”).

         To be sure, the inquiry does not end there. When the sentencing record is

inconclusive, a movant must still bear the burden of showing—either through

direct or circumstantial evidence—that he was, in fact, sentenced under the

residual clause.6 Indeed, Beeman has attempted to do just that by demonstrating

that he could not possibly have been sentenced under any other clause of the

ACCA.         The majority does not reach the question of whether this type of

circumstantial evidence of reliance on the residual clause should be permitted

because, as noted above, they improperly categorize these arguments as an




6
    I do not agree that “[a] Johnson movant has met his burden to show that he has a right to §
    2255 relief . . . unless the record affirmatively shows that the district court relied upon the
    ACCA’s elements clause.” App. Br. at 22. Instead, I simply take the view that an “unclear”
    sentencing record is neither a bar to, nor sufficient for, success on the merits of a Johnson
    claim.


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“untimely Descamps claim” and exclude them from the discussion of Beeman’s

Johnson claims. 7

         The majority characterizes this framework as implicating some order of

“burden shifting” that would break from long-standing precedent regarding a

movant’s obligation to establish his entitlement to constitutional relief and allow

unmeritorious claims to succeed. This is not the case. Under the clear/unclear

rubric, an unclear record does not entitle a movant to relief. Instead, it permits a

defendant to bring a Johnson claim and to adduce evidence that establishes,

conclusively, that he was sentenced under the residual clause. Far from opening

the jailhouse doors based on ambiguities in the record, this analysis simply gives

potentially eligible defendants the opportunity to prove that they are entitled to

relief where, as here, the sentencing documents and record transcripts are silent.

Though it is true that the courts may have to address some unmeritorious petitions

because of this rule, this cannot be the basis for precluding access to the courts and

“permitting the criminal process to rest at a point where it ought properly never to

repose.” Mackey v. United States, 401 U.S. 667, 693 (opinion of Harlan, J.).

         In a case like this, where a movant attempts to satisfy the first prong of the

Johnson inquiry through circumstantial evidence by demonstrating that he could

not have been properly sentenced under any other portion of the statute, the first

7
    They do, however, clarify that either direct or circumstantial evidence could be used for this
    purpose. See Maj. Op. n.4.
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and second prongs for success on the merits coalesce into a single inquiry. The

fact that a single showing satisfies both requirements for Johnson relief, however,

in no way diminishes the evidentiary burden of a movant or otherwise shifts that

burden to the Government. Again, Beeman must prove that it was more likely than

not that he was sentenced under the residual clause in order to succeed on his

Johnson claim. I believe that Beeman has done so by demonstrating that he could

not have been sentenced under any other clause of the ACCA. Because it is

uncontested that Beeman does not qualify under the enumerated clause, and

because there are only two other ways to qualify as a career offender under the

ACCA, disproving one is necessarily proof of the other. See In Re Chance, 831

F.3d at 1340. Beeman’s showing that he could not have been convicted under the

elements clause of the ACCA 8 is therefore proof of both requirements for success

on the merits of a Johnson claim: first, that he was sentenced under the residual

clause, and second, that his predicate offenses could not qualify under the ACCA

absent that provision. I can ascertain no basis upon which to exclude this type of

circumstantial evidence in evaluating a movant’s habeas petition, and, as noted



8
    Since the majority finds that Beeman has not adequately established that he was sentenced
    under the residual clause, they do not address the question of whether his predicate offense of
    aggravated assault in Georgia could qualify him for an ACCA sentence under the language of
    the elements clause. As noted at the outset, this question was fully briefed by both Parties,
    who agree that the modified categorical approach is the proper standard here. Applying that
    standard to the Georgia statute, Beeman’s aggravated assault predicate likely would not qualify
    as a crime of violence under the elements clause.
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above, believe that doing so would create an unjustifiable procedural bar based

solely on the manner in which a movant’s sentence was pronounced.

      I do not take issue with the importance of finality of judgments in our legal

system or the importance of efficiency in the apportionment of judicial resources

wherever possible.      But the vindication of constitutional rights must be of

paramount importance in any decisions that impact access to the courts.          In

deciding to make Johnson retroactively applicable, the Supreme Court considered

these conflicting interests, and concluded that “where the conviction or sentence in

fact is not authorized by substantive law, then finality interests are at their

weakest.”    Welch, 136 S. Ct. at 1266.      Accordingly, while I understand the

majority’s desire to identify a bright-line rule through which unmeritorious

Johnson claims can be culled without engaging in a predicate-by-predicate

determination of what crimes still qualify under the ACCA, I cannot agree to a

standard that excludes petitioners because the process of evaluation is particularly

laborious. I fear that the practical effect of today’s opinion is that many criminal

defendants like Beeman who were, in fact, sentenced under a constitutionally

infirm statute will be denied their right to seek the relief to which they may very

well be entitled by the holdings of the Supreme Court.          For that reason, I

respectfully dissent.




                                        33
