              Case: 16-12626     Date Filed: 06/17/2016   Page: 1 of 9


                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 16-12626-J
                           ________________________

IN RE: JOSEPH ROGERS, 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 JILL PRYOR, Circuit Judges.

B Y T H E P A N E L:

      Joseph Rogers, Jr. 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

             (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); 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.      BACKGROUND

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

which imposes an enhanced mandatory minimum 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 to another.”    The first 9 words of that subsection are called

the “enumerated crimes clause,” and the last 13 are called the “residual clause.”
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      In the instant application, Mr. Rogers asserts 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).

                          II.    THE CLEAR-UNCLEAR TEST

      In evaluating a Johnson-based application, we are bound by § 2255(h)(2) and

our recent decisions in In re Adams,1 In re Hires,2 and In re Thomas3 to grant or

deny the application based on whether, under the record and our precedent, it is

either clear or unclear that the applicant’s § 2255 motion contains a Johnson claim.

We may only deny the application if it is clear that the motion will not contain a

Johnson claim. This is so when: (1) the sentencing court record demonstrates that

the sentencing court specifically identified three prior convictions as qualifying as

ACCA predicates under the elements or enumerated crimes clauses, or based on the

“serious drug offense” provision of the ACCA; and/or (2) under binding precedent,


      1
          No. 16-12519 (11th Cir. June 15, 2015).
      2
          No. 16-12744 (11th Cir. June 15, 2016).
      3
          Nos. 16-12065, 16-12649, __ F.3d __, 2016 WL 3000325 (11th Cir. May 25, 2016)
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it is clear that the prior convictions the sentencing court identified categorically

qualify as ACCA predicates under the elements or enumerated crimes clauses or,

alternatively, the ACCA’s “serious drug offense” provision. When the record does

not make clear that the sentencing court relied solely on the ACCA’s still-valid

provisions to classify each predicate offense and binding precedent does not

otherwise demonstrate that only valid ACCA clauses are implicated, we apply

Descamps v. United States.4 At that point, if it is unclear from binding precedent

that the state statute at issue is divisible under Descamps, then the applicant has

made out a prima facie case that his application contains a Johnson claim under

§ 2255(h).5

       In Adams, we held that, where “the sentencing court may have relied on the

residual clause in imposing [an applicant’s] sentence,” the sentence “may be invalid

under Johnson.” Slip op. at 8. We further held 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

        4 133 S. Ct. 2276 (2013). In Descamps, the Supreme Court held that a conviction
under a nongeneric, indivisible criminal statute categorically cannot qualify as an ACCA
predicate offense. Id. at 2285-86. We would not need to apply Descamps if the sentencing
court relied upon three qualifying serious drug offenses to impose the ACCA enhancement.
       5
         Of course, if binding post-Descamps precedent clearly holds that the state statutes
underlying the relevant prior convictions are divisible and that the facts of those convictions as
found by the district court meet the terms of the elements or enumerated clauses, then the
applicant would not have a viable Johnson claim.

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

§ 2255(h)].”6 Id. Johnson is “implicated” when the record does not refute the

applicant’s assertion that the sentencing court relied on the residual clause, and when

there is no binding precedent categorically classifying the offense or offenses in

question as either falling under the elements clause or enumerated crimes clause.

Under those circumstances, courts must apply Descamps and other binding Supreme

Court precedent in determining whether a prior conviction would still support an

enhanced ACCA sentence.7 Given the unsettled state of the Descamps divisibility

analysis as it applies to many statutes that these Johnson-based applications involve,

Johnson is “implicated” as a new rule of constitutional law, and the application

should be granted, in situations where neither the record nor current binding

precedent makes undeniably clear that, absent the residual clause, an enhanced

sentence validly was entered.
       6
         Although Hires suggested that “Descamps cannot serve as a basis, independent or
otherwise, for authorizing a successive § 2255 motion,” we do not read this statement as applying
even when the application “contain[s]” a Johnson claim as described above. Hires, No.
16-12744, slip op. at 10 (emphasis added). We acknowledge that Hires’s statement is in tension
with our holding in Adams, but because Adams was decided before Hires, its holding established
prior panel precedent that Hires could not overrule. See Morrison v. Amway Corp., 323 F.3d 920,
929 (11th Cir. 2003).
       7
          We cannot simply look directly to an applicant’s PSI to determine whether, under the
facts contained therein, the elements or enumerated crimes clause is applicable. We must
instead follow Descamps and other precedent that guide our analysis of the reach of those
clauses. “[T]he sentencing court,” of course, may rely on the PSI’s undisputed facts. See
Hires, No. 16-12744, slip op. at 9. Aside from this exception, however, the Sixth Amendment
requires that any fact that increases a defendant’s sentence be proven beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000).
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       Adams does not control, however, where binding precedent clearly classifies

an offense that the applicant’s sentencing court found to be an ACCA predicate as

either an elements or enumerated crimes clause offense (or a serious drug offense).

In these cases, the challenges an applicant is asserting do not “contain” the rule

announced in Johnson, so he does not make out a prima facie case. 28 U.S.C.

§ 2255(h); See Hires, slip op. at 7-9.8 And when the sentencing court affirmatively

made a finding that an applicant’s ACCA predicate offenses qualified under either

enumerated crimes clause or elements clause, Johnson does not invalidate the

applicant’s sentence. Thomas, 2016 WL 3000325, at *3.

       Read together, Adams, Hires, and Thomas establish a “clear or unclear” test

that turns on the sentencing court’s findings and on-point binding precedent

regarding whether a particular crime categorically qualifies under a still-valid

ACCA clause offense (precedent that includes Descamps).                       When neither the

sentencing court’s finding on which ACCA clause or clauses applied nor binding

on-point precedent forecloses an applicant’s assertion that his sentence arose under

the ACCA’s residual clause, we look to Descamps “to ensure we apply the correct


       8
          At the same time, we have an obligation to evaluate whether our binding precedent
clearly has been abrogated by intervening caselaw. Similarly, to the extent an applicant’s own
previous proceedings, either on direct appeal or in a first § 2255, resulted in a decision that has
been abrogated by intervening law, we may not apply it. See In re Lambrix, 776 F.3d 789, 793
(11th Cir. 2015) (explaining that law-of-the-case doctrine does not apply when “controlling
authority has since made a contrary decision of law” (internal quotation marks omitted)).
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meaning of the ACCA’s words.” Adams, slip op. at 8. And at this point, unless

post-Descamps binding precedent clearly resolves the residual clause ambiguity the

applicant has demonstrated, his application “contain[s]” a Johnson claim such that

his application is due to be granted. See 28 U.S.C. § 2255(h).

      When, conversely, it is clear based on the sentencing court’s finding in

sentencing the defendant that each predicate conviction qualified under the ACCA’s

elements or enumerated crimes clause, or as a serious drug offense, or binding

on-point precedent dictated that the predicate offenses categorically qualified under

one of these other clauses, then his application does not “contain” a Johnson claim.

In these limited circumstances, his application is due to be denied.

      This analysis is all our “gatekeeping” function contemplates. Adams, slip op.

at 8. To decide complex issues of first impression, such as whether a particular

state criminal conviction obtained on a certain date categorically qualifies under the

elements clause or the enumerated crimes clause, or even whether the state statute

under which that conviction was obtained is divisible, would be impracticable given

our time limitation and lack of merits briefing in the successive § 2255 motion

context. See 28 U.S.C. § 2244(b)(3)(D); Jordan v. Sec’y, Dep’t of Corr., 485 F.3d

1351, 1357-58 (11th Cir. 2007) (“When we make that prima facie decision we do so

based only on the petitioner’s submission. We do not hear from the government.

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We usually do not have access to the whole record. And we often do not have the

time necessary to decide anything beyond the prima facie question because we must

comply with the statutory deadline.”); see also id. (concluding that “the statute does

not allow us” to reach the decision on the merits at the application stage but rather

“restricts us to deciding whether the petitioner has made out a prima facie case of

compliance with the [28 U.S.C.] § 2244(b) requirements”).          Nor would it be

prudential, considering nothing we pronounce in orders on applications to file

successive § 2255 motions binds the district court. See In re Moss, 703 F.3d 1301,

1302 (11th Cir. 2013) (noting that our “limited determination” does not bind the

district court, which is to decide the “issues fresh, or in the legal vernacular, de

novo.”).

      With this clarification, we proceed to address Mr. Rogers’s application.

                          III.   MR. ROGERS’S CLAIM

      Although our limited access to the record prevents us from knowing

precisely what Mr. Rogers’s presentence investigation report (“PSI”) and

sentencing transcript would reveal about his ACCA enhancement, we know from

his first § 2255 motion that the enhancement was based on: (1) a conviction for

aggravated battery, pursuant to Fla. Stat. § 784.045; (2) a conviction for aggravated

assault, pursuant to Fla. Stat. § 784.021; and (3) a conviction for conspiracy to

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distribute methamphetamine, pursuant to Fla. Stat. § 893.13(1)(a). Mr. Rogers

contends that his prior convictions under Florida law for aggravated battery and

aggravated assault cannot serve as predicate offenses for the ACCA enhancement

in light of Johnson.9

       We previously have held that a conviction under Florida’s aggravated assault

statute categorically qualifies as a violent felony under the ACCA’s still-valid

elements clause. See Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328,

1338 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S. Ct. 2551; see

also Hires, No. 16-12744, slip op. at 7 (relying on Turner to conclude that Mr.

Hires’s aggravated battery conviction qualified as an elements clause predicate

offense). Likewise, we have held that a conviction under Florida’s aggravated

battery statute categorically qualifies under the elements clause. Turner, 709 F.3d

at 1341.

       Thus, because binding precedent clearly classifies as elements clause offenses

the convictions Mr. Rogers’s sentencing court relied upon as ACCA predicates, his

application does not make out a prima facie case under Johnson. His application

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




       9
         Mr. Rogers does not challenge the use of his prior drug conviction as an ACCA
predicate offense.
                                               9
