              Case: 16-17629    Date Filed: 04/25/2019   Page: 1 of 9


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-17629
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:16-cv-02914-ODE,
                          1:15-cr-00136-ODE-LTW-1


JAMES HENRY BANKS,

                                                              Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                                 (April 25, 2019)

Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      James Henry Banks, through counsel, appeals the district court’s denial of

his motion to vacate sentence, 28 U.S.C. § 2255, as untimely. In his underlying
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criminal case, Banks pleaded guilty to carjacking, in violation of 18 U.S.C. § 2119

and using, carrying, and brandishing a firearm during a crime of violence, namely,

the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Judgment was entered

in that case on October 19, 2015, and Banks did not file a direct appeal. On

August 5, 2016, Banks placed his pro se § 2255 motion in the prison mailing

system and it was docketed in the district court on August 8, 2016. In it he argued

that his sentences were unconstitutional in light of Johnson v. United States, 135

S. Ct. 2551 (2015), because, in relevant part, carjacking no longer qualified as a

crime of violence under § 924(c).

      In a proceeding on a motion to vacate, set aside, or correct sentence, the

district court’s factual findings are reviewed for clear error while legal issues are

reviewed de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).

We review de novo the district court’s determination regarding whether a motion

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

Cir. 2007). The scope of our review of an unsuccessful § 2255 motion is

generally limited to the issues enumerated in the certificate of appealability

(“COA”), McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011), although

it will also encompass procedural issues that must be resolved before this Court

can reach the merits of the underlying claim, McCoy v. United States, 266 F.3d

1245, 1248 n.2 (11th Cir. 2001).


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      Under the prior-panel-precedent rule, a prior panel’s holding is binding on

all subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by us sitting en banc. United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008). We recently held that law established “in

published three-judge orders issued pursuant to 28 U.S.C. § 2244(b) in the context

of applications for leave to file second or successive § 2255 motions is binding

precedent on all subsequent panels of this Court, including those reviewing direct

appeals and collateral attacks, ‘unless and until [it is] overruled or undermined to

the point of abrogation by the Supreme Court or by this Court sitting en banc.’”

United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018) (emphasis in

original), cert. denied, No. 18–8025 (2019).

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

imposes a one-year statute of limitations for filing a § 2255 motion. 28 U.S.C.

§ 2255(f). The one-year period of limitations begins to run from the latest of four

possible events:

      (1)    the date on which the judgment of conviction becomes final;

      (2)    the date on which the impediment to making a motion created
             by governmental action in violation of the Constitution or laws
             of the United States is removed, if the movant was prevented
             from making a motion by such governmental action;

      (3)    the date on which the right asserted was initially recognized by
             the Supreme Court, if that right has been newly recognized by


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              the Supreme Court and made retroactively applicable to cases
              on collateral review; or

        (4)   the date on which the facts supporting the claim or claims
              presented could have been discovered through the exercise of
              due diligence.

Id. When a criminal defendant does not pursue a direct appeal, his conviction

becomes final when the time for filing a notice of appeal expires. See Mederos v.

United States, 218 F.3d 1252, 1253 (11th Cir. 2000). On June 26, 2015, the

Supreme Court in Johnson held that the residual clause of the definition of the

phrase “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), was unconstitutionally vague. Johnson, 135 S. Ct. at 2551, 2557-58,

2563.

        Collateral review under § 2255 is not a substitute for a direct appeal. Lynn,

365 F.3d at 1232. A defendant can overcome this procedural bar by establishing

either (1) cause for the default and actual prejudice from the alleged error, or (2)

that he is actually innocent of the crimes for which he was convicted. Id. Cause

for not raising a claim can be shown when a claim “is so novel that its legal basis is

not reasonably available to counsel.” Bousley v. United States, 523 U.S. 614, 622

(1998). To show actual innocence, a movant must present new, reliable evidence

that he is factually innocent of the crime of conviction. Schlup v. Delo, 513 U.S.

298, 324 (1995). Arguments based on legal insufficiency do not satisfy the actual-

innocence standard. Bousley, 523 U.S. at 623.
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      Section 924(c) of Title 18 of the U.S. Code provides for a mandatory

consecutive sentence for any defendant who uses or carries a firearm during a

crime of violence or a drug-trafficking crime. A companion “crime of violence” is

defined in § 924(c) as an offense that is a felony and:

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

      (B)    that by its nature, involves a substantial risk that physical force
             against the person or property of another may be used in the
             course of committing the offense.

Id. § 924(c)(3). We have referred to the first clause of § 924(c)(3) as the “elements

clause,” while the second clause is referred to as the “residual clause.” Ovalles v.

United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc).

      In Ovalles, we recently held en banc that 18 U.S.C. § 924(c)(3)(B)’s

“residual clause”—which defines a “crime of violence,” in part, as any felony

offense “that by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the

offense”—is not unconstitutionally vague because interpretation of that provision

requires a conduct-based approach instead of a categorical approach. Id. at 1253.

We explained at length that this feature of § 924(c)(3)(B) distinguished it from the

reasoning that had led the Supreme Court to strike down as unconstitutionally

vague similarly worded residual clauses in the Armed Career Criminal Act and 18



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U.S.C. § 16(b) in Johnson, and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),

respectively. Id. at 1237-52.

      Further, we have held that carjacking, under 18 U.S.C. § 2119, categorically

qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause. See In re

Smith, 829 F.3d at 1280. In In re Smith, we denied a successive application

seeking leave to raise a Johnson-based challenge to a § 924(c) conviction that was

based on a companion carjacking offense. Id. at 1277–78, 1281. We determined

that a conviction for carjacking under § 2119 required that a defendant “take or

attempt to take [the vehicle] by force and violence or by intimidation,” which

satisfied § 924(c)(3)(A)’s elements clause. Id. at 1280–81.

      Banks’s judgment became final on November 3, 2015, because he did not

file a direct criminal appeal from his judgment entered on October 19, 2015. See

Mederos, 218 F.3d at 1253. Accordingly, because Banks placed his § 2255 motion

in the prison mailing system on August 5, 2016, and it was docketed in the district

court on August 8, 2016, it is within the one-year limitations period under the

AEDPA and, thus, is timely. See 28 U.S.C. § 2255(f)(1).

      Nevertheless, although Banks’s COA was limited to the issue of timeliness,

his claim is procedurally defaulted. Banks could have raised his claim on direct

appeal—but did not file one—and he failed to establish cause and prejudice or

actual innocence to excuse not raising his claim on direct appeal. See Lynn, 365


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F.3d at 1232; McCoy, 266 F.3d at 1248 n. 2. Finally, his claim is foreclosed by our

precedent in Ovalles and In re Smith. See Ovalles, 905 F.3d at 1253; In re Smith,

829 F.3d at 1280. Accordingly, although the district court erred by denying

Banks’s § 2255 as time-barred, the denial is affirmed based on other grounds in the

record.

      AFFIRMED.




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JILL PRYOR, Circuit Judge, concurring in judgment:

      In the absence of binding prior panel precedent, I would vote to vacate the

district court’s denial of James Banks’s 28 U.S.C. § 2255 motion. Mr. Banks was

convicted of carjacking, in violation of 18 U.S.C. § 2119, and using, carrying, and

brandishing a firearm during a “crime of violence”—the carjacking—in violation

of 18 U.S.C. § 924(c). Section 924(c) contains two “crime of violence”

definitions, an “elements clause” and a “residual clause.” See Ovalles v. United

States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc), petition for cert. filed, No.

18-8393. In my view, the latter definition is void for vagueness under the Due

Process Clause. See id. at 1277 (Jill Pryor, J., dissenting). And, as I previously

have explained, I do not think that carjacking qualifies as a “crime of violence”

under the former definition. See In re Smith, 829 F.3d 1276, 1281-85 (11th Cir.

2016) (Jill Pryor, J., dissenting).

      I therefore believe that Mr. Banks’s carjacking conviction is not a valid

predicate offense to support his § 924(c) conviction and sentence. Further,

considering that challenges to the constitutionality of § 924(c)’s residual clause and

to most § 924(c) predicates, carjacking included, were not given serious

consideration until the Supreme Court decided Johnson v. United States, 135 S. Ct.

2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), I would not apply

a procedural default to bar Mr. Banks’s claim. Nevertheless, Ovalles and Smith


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bind me, so I must concur in the majority’s decision to affirm the denial of Mr.

Banks’s request for relief.




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