              Case: 16-12084     Date Filed: 06/01/2016     Page: 1 of 10


                                                                            [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                            ________________________

                                  No. 16-12084-J
                            ________________________

IN RE: RICARDO PINDER, JR.,

                                                                             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 MARTIN, Circuit Judges.

BY THE COURT:

      Ricardo Pinder, Jr., seeks authorization to file a second or successive

28 U.S.C. § 2255 motion. He can file such a motion only if the motion 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
      (2) a new rule of constitutional law, made retroactive to cases on
      collateral review by the Supreme Court, that was previously
      unavailable.



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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).

      Pinder was sentenced under 18 U.S.C. § 924(c), which requires a higher

prison sentence whenever a defendant uses a firearm during a “crime of violence.”

18 U.S.C. § 924(c)(1)(A). The statute gives more than one definition of “crime of

violence,” including any felony “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)(B). Pinder claims this definition is

unconstitutional in light of Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551

(2015), which held that the phrase “involves conduct that presents a serious

potential risk of physical injury to another” in 18 U.S.C. § 924(e)(2)(B)(ii) is

unconstitutionally vague. The Supreme Court has held that the rule announced in

Johnson applies retroactively on collateral review. See Welch v. United States,

578 U.S. __, __, 136 S. Ct. 1257, 1268 (2016).

      Our Court hasn’t decided if Johnson applies to § 924(c)(3)(B). However,

the language in § 924(c) and § 924(e) is very similar. And both § 924(c) and

§ 924(e) are penal statutes, meaning they both require higher sentences once a

court decides that an offense is a “crime of violence.” Also, for both statutes this


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question is decided “‘categorically’—that is, by reference to the elements of the

offense, and not the actual facts of [the defendant’s] conduct.” United States v.

McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013) (O’Connor, J.). As the Supreme

Court has explained, “[t]he vagueness of [§ 924(e)(2)(B)(ii)] rests in large part on

its operation under the categorical approach.” Welch, 136 S. Ct. at 1262. This

“approach required courts to assess the hypothetical risk posed by an abstract

generic version of the offense.” Id. “It is one thing to apply an imprecise ‘serious

potential risk’ standard to real-world facts; it is quite another to apply it to a judge-

imagined abstraction.” Johnson, 135 S. Ct. at 2558. Though § 924(c) is phrased a

bit differently from § 924(e), the § 924(c) language also requires courts to decide if

the offense in question “naturally involve[s] a person acting in disregard of the risk

that physical force might be used against another in committing an offense.”

Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S. Ct. 377, 383 (2004).

      Given the similarity between § 924(c) and § 924(e), other Courts of Appeals

have authorized successive § 2255 petitions based on Johnson in § 924(c) cases.

See, e.g., Freeman v. United States, No. 15-3687 (2d Cir. Jan. 26, 2016); In re

Chapman, No. 16-246 (4th Cir. May 3, 2016); Ruiz v. United States, No. 16-1193

(7th Cir. Feb. 19, 2016) (rejecting the argument “that § 924(c)(3)(B) differs enough

from [§ 924(e)(2)(B)(ii)]’s residual clause that it was not invalidated by Johnson”).

And though the Sixth Circuit has held that § 924(c)(3)(B) is not unconstitutionally


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vague, see United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016), the Seventh

and Ninth Circuits have held that identically worded language in 18 U.S.C. § 16(b)

is unconstitutionally vague, see United States v. Vivas-Ceja, 808 F.3d 719, 723

(7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015).

       In short, the law is unsettled on whether the rule announced in Johnson

invalidates Pinder’s sentence. What’s clear however is that Pinder has made a

prima facie showing that his motion “contain[s] . . . a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court.” 28

U.S.C. § 2255(h); see also In re Joshua, 224 F.3d 1281, 1282 n.2 (11th Cir. 2000)

(per curiam) (noting that “the merits of this case . . . are not relevant to whether

Joshua can obtain permission to bring a second or successive § 2255 motion to

vacate”). Whether that new rule of constitutional law invalidates Pinder’s sentence

must be decided in the first instance by the District Court. 1 Nothing in our order

binds that court, which must decide every aspect of Pinder’s claim “fresh, or in the

       1
          Pinder’s § 924(c) sentence appears to have been based on a conviction for conspiracy to
commit Hobbs Act robbery. “To convict on a Hobbs Act conspiracy, the government must show
that (1) two or more people agreed to commit a Hobbs Act robbery; (2) that the defendant knew
of the conspiratorial goal; and (3) that the defendant voluntarily participated in furthering that
goal.” United States v. Ransfer, 749 F.3d 914, 930 (11th Cir. 2014). This Court “has not
decided that a Hobbs Act robbery categorically qualifies as a ‘crime of violence’ for the purposes
of § 924(c)” after Johnson. United States v. Collins, No. 1:14-CR-302, 2016 WL 1639960, at
*26 (N.D. Ga. Feb. 9, 2016), report and recommendation adopted, No. 1:14-CR-302, 2016 WL
1623910 (N.D. Ga. Apr. 25, 2016). We also haven’t decided this question for conspiracy to
commit Hobbs Act robbery. At least two district courts have held that conspiracy to commit
Hobbs Act robbery is not a “crime of violence” after Johnson. See United States v. Luong, No.
2:99-00433, 2016 WL 1588495, at *3 (E.D. Cal. Apr. 20, 2016); United States v. Edmundson,
No. PWG-13-15, 2015 WL 9311983, at *6 (D. Md. Dec. 23, 2015). We leave the merits of
Pinder’s claim to the District Court to decide in the first instance.
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legal vernacular, de novo.” Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1358

(11th Cir. 2007). Also, whatever

      determination that the district court makes about whether [Pinder] has
      satisfied the requirements for filing a second or successive motion,
      and any determination it makes on the merits, if it reaches the merits,
      is subject to review on appeal from a final judgment or order if an
      appeal is filed. Should an appeal be filed from the district court[’]s
      determination, nothing in this order shall bind the merits panel in that
      appeal.

In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013).

      APPLICATION GRANTED.




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TJOFLAT, Circuit Judge, dissenting:

      In enacting the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2241 et seq., Congress transferred from the District

Courts to the Circuit Courts the power to decide whether a second or successive

petition or motion may be brought under §§ 2254 and 2255. The Circuit Courts

now perform a gatekeeping function. A Circuit Court may authorize a federal

prisoner to file a second or successive § 2255 motion if a panel of the court

certifies the motion “to contain . . . a new rule of constitutional law, made

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

unavailable.” Id. § 2255(h)(2).

      Pinder requests our authorization to file a second or successive motion on

the theory that Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551, 192 L. Ed.

2d 569 (2015), applies retroactively through Welch v. United States, 578 U.S. __,

136 S. Ct. 1257, __ L. Ed. 2d. __ (2016), to the “crime of violence” language of 18

U.S.C. § 924(c) in the way it applies to the “violent felony” language of 18 U.S.C.

§ 924(e). We grant Pinder’s request on the sole ground that he “has made a prima

facie showing that his motion ‘contain[s] . . . a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court.’” Ante at 4

(quoting 28 U.S.C. § 2255(h)(2)) (alteration in the original).




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       Whether Johnson applies to § 924(c) as it does to § 924(e) presents a pure

question of law, which we could readily decide. We do not decide it, though,

because, as the majority implies, doing so would be beyond the gatekeeping task

Congress has assigned us under AEDPA. Our task is simply to determine whether

the movant’s motion contains “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). Pinder’s motion contains one; hence, authorization is

mandatory. The majority makes this abundantly clear. “Whether th[e] new rule of

constitutional law invalidates Pinder’s sentence must be decided in the first

instance by the District Court.” Ante at 4. Our order authorizing the filing “in no

way binds” the District Court, which “must decide even the § 2255(h) question

‘fresh, or in the legal vernacular, de novo.’” Id. In short, the District Court is on

its own in deciding the retroactivity question.

       But our gatekeeping function under § 2255(h)(2) is more robust than the

majority recognizes. When faced with a straightforward, pure question of law that

is dispositive, it is an abdication of our judicial mantle not to decide it.1 This

becomes obvious when one considers what we would have done had the Supreme




       1
         To the extent that additional briefing from the parties might be necessary to resolve a
motion for a second or successive petition presenting a pure question of law, we could order
targeted supplemental briefing on an expedited basis.
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Court decided Johnson while Pinder’s case was pending on direct appeal.2 We

would have had two choices, as least in theory. First, even though further

development of the record would not have been necessary to decide whether

Johnson affected the validity of Pinder’s conviction, we could have held the appeal

in abeyance and remanded the case to the District Court with the instruction that

the District Court decide the retroactivity question in the first instance for

sentencing purposes—the same instruction today’s authorization implies—and

then certify its decision to us. The District Court would have decided the

retroactivity question, a pure question of law, and made the certification. On

receipt of its decision, we would then engage in the same task we gave the District

Court. Why? Because we would have been faced with the exact same retroactivity

question we sent to the District Court. If we affirmed the District Court’s decision,

all would have been well and good—the District Court would have gotten it right.

If we reversed, the District Court would have wondered in total astonishment why

we didn’t decide the retroactivity issue in the first place—why we wasted its time

and effort and, what’s worse, made it appear incompetent.3




       2
           Johnson would apply to 18 U.S.C. § 924(e)(2)(B)(ii) convictions like Pinder’s in
pending cases on direct appeal. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 320–26 107 S. Ct.
708, 711–15, 93 L. Ed. 2d 649 (1987).
         3
           If we affirmed, the District Court would still wonder why we didn’t resolve the issue
initially and avoid wasting that court’s time and effort.
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       We would not have opted to remand Pinder’s case to the District Court had

it still been pending when Johnson was decided. We would have instead decided

the retroactivity issue ourselves. We would have done so for obvious reasons.

Considerations of efficiency, our institutional respect for the District Court, the

legal profession’s respect for our court, and the public’s interest in avoiding a

judicial game of musical chairs would have required that we decide the

retroactivity question straightway.

       Now, consider the case at hand and imagine that we were a court of only

three judges. As in the direct appeal I posit above, we would have two choices.

We could decide the question of law or we could palm it off to the District Court.

If we opted to palm it off, the District Court would resolve the retroactivity issue,

and the losing side would appeal.4 And we would be faced once again with the

question of whether Johnson applied to Pinder’s conviction. If we reversed, the

District Court would be just as astonished as the District Court in the direct-appeal

scenario would have been had we remanded the retroactivity issue instead of

deciding it ourselves and then reversed its decision.5 In the end, however the

District Court resolved the retroactivity issue, we would have faced the issue twice,



       4
          If Pinder lost, he would then seek a certificate of appealability under 28 U.S.C.
§ 2553(c) based on Johnson.
       5
          As in the direct-appeal scenario described above, if we affirmed, the District Court
would still wonder why we didn’t resolve the issue initially and avoid wasting that court’s time
and effort.
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and depending on our decision, the District Court could have been taxed with the

case twice.

       But we aren’t a three-judge court. Today’s authorization will result in an

appeal to another three-judge panel, and that panel will pass judgment on today’s

decision. The authorization will yield the same inefficiencies, potential for

institutional disrespect, and public concern that that would result if, during the

direct appeal of a criminal conviction, we palmed off to the District Court a pure

question of law that we should have decided in the first instance.

       Is it possible that Congress, in drafting AEDPA, envisioned such a waste of

judicial time and resources and further delay in the finality of criminal

convictions? Cf. Day v. McDonough, 547 U.S. 198, 205, 126 S. Ct. 1675, 1681,

164 L. Ed. 2d 376 (2006) (recognizing that “‘judicial efficiency and conservation

of judicial resources’” promotes AEDPA’s interest in finality (quoting Acosta v.

Artuz, 221 F.3d 117, 123 (2d Cir. 2000))). 6 I hardly think so.




       6
         These efficiency concerns, which likewise implicate AEDPA’s interest in comity and
federalism, are only heightened in the context of 28 U.S.C. § 2254.
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