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                                                           [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-12538
                            ________________________


In re: OCTAVIOUS WILLIAMS,

                                                   Petitioner.

                            ________________________

               Application for Leave to File a Second or Successive
                  Habeas Corpus Petition, 28 U.S.C. § 2244(b)
                          ________________________


Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.

B Y T H E P A N E L:

       We sua sponte vacate our order in this case dated July 13, 2018 and replace

it with this published order.

       Pursuant to 28 U.S.C. § 2244(b)(3)(A), Octavious Williams has filed an

application seeking an order authorizing the district court to consider a second or

successive petition for a writ of habeas corpus. Such authorization may be granted

only if:



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    (A) the applicant shows that the claim relies on a new rule of constitutional
    law, made retroactive to cases on collateral review by the Supreme Court,
    that was previously unavailable; or
    (B)(i) the factual predicate for the claim could not have been discovered
    previously through the exercise of due diligence; and
    (ii) the facts underlying the claim, if proven and viewed in light of the
    evidence as a whole, would be sufficient to establish by clear and
    convincing evidence that, but for constitutional error, no reasonable
    factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). “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).

      Section 2244(b)(1) of Title 28, however, provides that “a claim presented in

a second or successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). A

“claim” remains the same so long as “[t]he basic thrust or gravamen of [the

applicant’s] legal argument is the same.” In re Hill, 115 F.3d 284, 294 (11th Cir.

2013). For applications requesting authorization to file a second or successive

petition pursuant to § 2254, this Court has consistently applied § 2244(b)(1) to

prohibit the filing of a claim that is the same as a claim presented in a petitioner’s



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initial habeas petition before the district court. See In re Everett, 797 F.3d 1282,

1291 (11th Cir. 2015); In re Mills, 101 F.3d 1369, 1370 (11th Cir. 1996).

      Court records show that Williams was convicted in 2001 following a jury

trial. Following a series of events not relevant to the present application, he filed,

in 2007, his original § 2254 petition, pro se. In it, he raised a number of claims,

including ground two, labeled “ineffective assistance of trial counsel; denial of

right to impartial trial; biase[d] judge,” and ground three, labeled “ineffective

assistance of trial counsel; biase[d] judge.” In support, he argued that his state

court trial judge engaged in “improper acts” reflecting bias, that his trial attorney

knew about those acts but did nothing, and that counsel was therefore ineffective

by not moving for recusal. The district court ultimately found that Williams’s

§ 2254 petition was untimely, and denied it with prejudice.

      In his pro se application, Williams indicates that he wishes to raise one

claim in a successive § 2254 petition. He argues that trial counsel was ineffective

“because the trial court judge was biased against him.” He concedes that he raised

this claim in a prior petition, but contends that it relies on a new rule of

constitutional law. However, he does not provide a citation to support that

contention. And he also concedes that his claim does not rely on newly discovered

evidence.




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          Williams’s application fails for two reasons. First, Williams raised an

“ineffective assistance of counsel - biased judge” claim in his original § 2254

petition. Thus, to the extent that the gravamen of the claims is the same, his current

claim is precluded by section 2244(b)(1) and “shall be dismissed.” 28 U.S.C.

§ 2244(b)(1); In re Mills, 101 F.3d at 1370.

          Second, even if Williams’s current claim is not precluded by § 2244(b)( 1),

he still has not made a prima facie showing that he would be entitled to relief.

Although Williams contends that his claim relies on a new rule of constitutional

law, he has failed to cite or otherwise identify a case that would support his claim.

Thus, he does not satisfy § 2244(b)(2)’s criteria.

          Accordingly, Williams’s application is DISMISSED to the extent that it is

barred by In re Mills and 28 U.S.C. § 2244(b)(1), and DENIED to the extent that it

is not.




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WILSON, Circuit Judge, with whom MARTIN and JILL PRYOR, Circuit Judges,
join, specially concurring:

       I write this special concurrence in light of the rule recently adopted by a

panel of this court in United States v. St. Hubert, 883 F.3d 1319, 1328–29 (11th

Cir. 2018) (“[W]e now hold in this direct appeal 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 are binding

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

appeals and collateral attacks.”).

                                         * * * * *

       On May 5, 2016, federal inmate Markson Saint Fleur used a typewriter at the

Federal Correctional Institution in Bennettsville, South Carolina to complete his

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside,

or Correct a Sentence under 28 U.S.C. § 2255. After briefly reciting his conviction

and procedural history, he typed out his legal argument: forty-three words, with

citations to two Supreme Court cases.1 He signed the form and placed it in the

mail. We received it four days later, on May 9. Although Saint Fleur served the

United States, the government did not file a response. In fact, nothing else was

filed on our docket.


1
 See Emergency Application at 5, In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (per curiam)
(No. 16-12299), ECF No. 1.


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       The motions panel2 reached its decision on this application thirty days later,

on June 8, 2016, as required by statute. Based on these forty-three words of

argument, the panel majority wrote an order denying the application and

designated it for publication in the Federal Reporter. Holding for the first time in

the Eleventh Circuit that Hobbs Act robbery “clearly qualifies as a ‘crime of

violence’ under the use-of-force clause in [18 U.S.C.] § 924(c)(3)(A),” the panel

found that Saint Fleur could not make a prima facie showing under 28 U.S.C.

§ 2255(h). In re Saint Fleur, 824 F.3d at 1340–41. Sixteen days later—in another

published order and under similar circumstances3—the same motions panel,

partially relying upon In re Saint Fleur, found that aiding and abetting Hobbs Act

robbery also “clearly qualifies” as a crime of violence under the use-of-force

clause. In re Colon, 826 F.3d at 1305. Saint Fleur and Colon had no avenues of

review available: Per statute, panel orders of this type cannot be reviewed by the

Supreme Court and may not be the subject of a petition for rehearing en banc.


2
  In this special concurrence, I use “merits panel” to refer to a three-judge panel hearing appeals
from the argument or non-argument calendar. I use “opinion” to refer to an opinion issued by a
merits panel. I use “motions panel” to refer to a panel deciding upon motions, including whether
to grant an application for leave to file a second or successive motion. I use “panel order” to
refer to an order issued by a motions panel.
3
  This time, petitioner-inmate Edgar Amado Colon, Jr. had a Federal Public Defender fill out his
form. Perhaps because she had access to word-processing software (as opposed to Saint Fleur’s
prison typewriter), the attorney was able to fit ninety-eight words of argument and two Supreme
Court citations onto our form. See Emergency Application at 5, In re Colon, 826 F.3d 1301
(11th Cir. 2016) (per curiam) (No. 16-13021), ECF No. 1. Once again, there was nothing else
filed on our docket in Colon’s case, apart from the Federal Defender’s appearance of counsel
form.


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      The St. Hubert panel, in a direct appeal from a criminal conviction—with

full briefing, oral argument by attorneys on both sides, and no thirty-day time

limit—held that In re Saint Fleur and In re Colon bound it as prior panel

precedent. With only panel orders and a generic citation to our prior-panel-

precedent rule for support, the St. Hubert panel explicitly held:

    Lest there be any doubt, we now hold in this direct appeal 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 are binding precedent on all subsequent panels
    of this Court, including those reviewing direct appeals and collateral
    attacks, “unless and until [they are] overruled or undermined to the point of
    abrogation by the Supreme Court or by this court sitting en banc.”

United States v. St. Hubert, 883 F.3d 1319, 1329 (11th Cir. 2018) (alteration in

original) (emphasis added) (citation omitted).

      So after St. Hubert, published panel orders—typically decided on an

emergency thirty-day basis, with under 100 words of argument (often written

by a pro se prisoner), without any adversarial testing whatsoever, and without

any available avenue of review—bind all future panels of this court.

      This is the first time that this court has held as much in a published

merits opinion on direct appeal. Such a holding raises numerous institutional

concerns for our Circuit, and this court should not have adopted it. But,

unfortunately, we have.

                                   * * * * *



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      Congress has delegated to the circuit courts a gatekeeping role when

reviewing second or successive petitions under §§ 2244 and 2255. See 28

U.S.C. §§ 2244(b)(2)–(3), 2255(h). Generally, these sections provide that

before filing a second or successive application, a petitioner must move this

court “for an order authorizing the district court to consider the application.”

28 U.S.C. § 2244(b)(3)(A). We may review such petitions only for whether

they contain:

      (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.

Id. § 2255(h). During this review, “we do not make any factual

determinations.” Jordan v. Sec’y, Dept. of Corr., 485 F.3d 1351, 1357 (11th

Cir. 2007). Rather, the statute permits us only to determine “whether the

petitioner has made out a prima facie case of compliance with [its]

requirements.” Id. at 1358. We have only thirty days to rule, 28 U.S.C.

§ 2244(b)(3)(D), and our resultant panel order “shall not be appealable and

shall not be the subject of a petition for rehearing or for a writ of certiorari.”

Id. § 2244(b)(3)(E).

      In this Circuit, we require non-death second or successive petitioner-

inmates to use a form that we provide. 11th Cir. R. 22-3(a). This form

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prohibits petitioners from additional briefing or attachments, and requires all

argument to take place “concisely in the proper space on the form.” For each

claim, the current version of the form provides a 1” x 5.25” space in which to

state a “ground on which you now claim that you are being held unlawfully.”

It then provides a 7.25” x 5.25” space in which to “summarize briefly the facts

supporting [this] ground.” And for legal arguments, the form provides a 2.5” x

5.25” space in which to assert that a claim “rel[ies] on a ‘new rule of

constitutional law,’” and an 8” x 5.25” space in which to assert that a claim

“rel[ies] on newly discovered evidence.”

       These applications are often decided without counseled argument from

the petitioner, and are always decided without an opposing brief from the

government, except for death-penalty-related applications. We also rarely

have access to the whole record. See generally Jordan, 485 F.3d at 1357–58

(describing the limitations we face when deciding these applications). When

making these determinations, therefore, the panel typically races to issue an

unappealable order based solely on the arguments of a pro se prisoner

constrained to a little over one page per ground.4

4
 For example, the petitioner in this case, Octavious Williams, did not even have the correct form
or access to a typewriter. See Emergency Application, In re Williams, No. 18-12538 (11th Cir.
Jun. 15, 2018), ECF No. 1. He filled out the form with a pen and wrote thirteen words of
argument. Id. at 5. Nothing else was filed on our docket, and we issued an order twenty-eight
days later. It defies belief that the court would want orders resulting from this process to bind all
merits panels.


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       Conversely, when we decide a merits appeal, we have essentially

unlimited time to decide the case, there are usually attorneys on both sides, we

have extensive briefing, and we have the entire record in front of us (including

an order from the court below). And the large majority of our published merits

opinions come from our oral argument calendar, where attorneys for each party

argue for at least fifteen minutes. Of course, after a merits opinion issues,

aggrieved parties may petition for panel rehearing, for rehearing en banc, or for

a writ of certiorari.

       Despite this stark contrast in process, published panel orders and

published opinions now enjoy the same precedential heft, equally binding

future panels of this court unless and until overruled by the court sitting en

banc. In fact, published panel orders perhaps have greater weight, because

they may not be appealed to the Supreme Court and they may not be the

subject of a petition for rehearing en banc. We should not elevate these

hurriedly-written and uncontested orders in this manner.

                                   * * * * *

       Other circuits do not operate this way. First, and perhaps most

importantly, other circuits simply do not publish panel orders with anywhere

near the frequency that we do. In the last five years, we have published forty-




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five second or successive panel orders, while all of the other circuits combined

have published eighty.

       Second, all of our sister circuits that have definitively spoken on the

matter do not consider themselves constrained by the thirty-day time limit for

deciding a second or successive petition.5 We have once tried to so hold, but—

in what appears to be the only time a panel order has been taken en banc in this

Circuit (via an ad hoc process)—we reversed ourselves. See In re Johnson,

814 F.3d 1259, 1262 (11th Cir. 2016) (per curiam), vacated, 815 F.3d 733

(11th Cir. 2016) (en banc). In line with this, judges in this Circuit consider

themselves bound by the thirty-day limit, and we dispose of “virtually every

one of the thousands” of applications under §§ 2244 and 2255 “(at least 99.9%

of them)” within thirty days.6 See also In re Henry, 757 F.3d 1151, 1157 n.9

(11th Cir. 2014) (“[T]his Court necessarily must apply § 2244(b)(2) under a

tight time limit in all cases, since the statute expressly requires us to resolve

5
  The First, Second, Third, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits have all held that
they are not strictly bound by the thirty-day rule. See Moore v. United States, 871 F.3d 72, 77–
78 (1st Cir. 2017); Johnson v. United States, 623 F.3d 41, 43 n.3 (2d Cir. 2010); In re Hoffner,
870 F.3d 301, 307 n.11 (3d Cir. 2017); In re Williams, 330 F.3d 277, 281 (4th Cir. 2003); In re
Siggers, 132 F.3d 333, 335 (6th Cir. 1997); Gray-Bey v. United States, 201 F.3d 866, 867 (7th
Cir. 2000); Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015); Browning v. United States,
241 F.3d 1262, 1263 (10th Cir. 2001). While the Fifth Circuit has an unpublished order noting
that it is “statutorily required to ‘grant or deny the authorization to file a second or successive
application not later than 30 days after the filing of the motion,’” In re White, 602 F. App’x 954,
956 n.2 (5th Cir. 2015) (citation omitted), it does not appear to have so held in a published
opinion. It does not appear as though the Eighth or D.C. Circuits have opined on the issue.
6
 Eleventh Circuit General Order No. 43, at 2 (2018), http://www.ca11.uscourts.gov/sites/
default/files/courtdocs/clk/GeneralOrder43.pdf.


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this application within 30 days, no matter the case.” (emphasis added)).7 This

extremely compressed timeline can lead to odd results that we would likely not

accept in a merits appeal. See, e.g., In re Sapp, 827 F.3d 1334 (11th Cir. 2016)

(per curiam) (published, unsigned panel order followed by a three-judge

special concurrence); see also, e.g., In re Armstrong, No. 18-10948 (11th Cir.

Apr. 3, 2018) (per curiam) (unsigned panel order followed by three single-

judge special concurrences).

       Third, even in non-death cases, many other circuits often consider

briefing from the government before issuing a published order; some also

entertain oral argument from both parties.8 We never grant oral argument in


7
  We recently ignored our now-binding precedent in In re Henry by holding all second or
successive applications in abeyance in the wake of Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
See Eleventh Circuit General Order No. 43, supra note 6; see also, e.g., In re Ratliff, No. 18-
12760 (11th Cir. Jul. 2, 2018), ECF No. 2 (clerk of court holding application in abeyance
pursuant to General Order 43). Setting aside the fact that a General Order decides no case or
controversy and cannot overrule a now-binding published order, it does not change my point: we
almost always decide these applications within thirty days (“at least 99.9%” of the time), while
other circuits do not hold themselves to that rigid deadline. And, remember, we once tried to
dismiss In re Henry as dicta and hold that we are not bound by the deadline, In re Johnson, 814
F.3d at 1268, but the en banc court vacated that order. 815 F.3d at 733.
8
  E.g., Evans-Garcia v. United States, 744 F.3d 235 (1st Cir. 2014) (orally argued); In re
Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam) (noting there was “extensive briefing
and oral argument”); In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (orally argued); In re
Williams, 806 F.3d 322 (5th Cir. 2015) (government brief filed); In re Patrick, 833 F.3d 584 (6th
Cir. 2016) (government brief filed); Dawkins v. United States, 829 F.3d 549 (7th Cir. 2016) (per
curiam) (government brief filed); Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016)
(government brief filed); Ezell v. United States, 778 F.3d 762 (9th Cir. 2015) (government brief
filed). To be sure, there are instances where other circuits have published orders without
government briefing or oral argument. But the fact that our non-death published second or
successive orders always issue without hearing from the government—combined with our
adherence to the thirty-day limit and propensity for publication—stands far outside the norm.


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non-death second or successive petitions. And, having reviewed the thirty-nine

non-death published second or successive orders for which docket information

is readily available, I was unable to locate any docket on which the United

States filed an individualized brief prior to the published order’s issuance.9

       So, procedurally speaking,10 we have the worst of three worlds in this

Circuit. We publish the most orders; we adhere to a tight timeline that the

other circuits have disclaimed; and we, unlike most circuits, do not ever hear

from the government before making our decision.

       But, despite these shortcomings, published panel orders not only now

bind all panels of this court—they are also unreviewable. 28 U.S.C.

§ 2244(b)(3)(E). Litigants may not bring mistakes to the court’s attention

through petitions for rehearing or petitions for rehearing en banc. Id. Even the

Supreme Court is powerless to review our decision on a second or successive

application. Id. Notably, we think that we have the authority to sua sponte

rehear an order en banc, see In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)

9
  The United States filed its so-called “standing brief” regarding Johnson issues on eleven of
these dockets. See, e.g., Memorandum of the United States Regarding Applications for Leave to
File Second or Successive § 2255 Motion Based on Johnson v. United States, In re Starks, 809
F.3d 1211 (11th Cir. 2016) (per curiam) (No. 15-15493), ECF No. 2. This brief does not respond
to the particular arguments made by the petitioner. With respect to three of the dockets, the
government filed briefing particular to the petitioner’s application, but only after the published
order had issued. The government filed nothing in the remaining dockets reviewed.
10
  This special concurrence speaks only to the procedural infirmities abundant in this Circuit’s
second or successive process. There are myriad substantive maladies as well. These are
explained in Judge Martin’s thoughtful special concurrence, which I join in full.


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(per curiam) (published panel order attempting to defend precedential status of

published panel orders), and we have done so once before, see In re Johnson,

815 F.3d 733 (11th Cir. 2016) (en banc) (vacating earlier published panel

order), but we have no Eleventh Circuit procedures or rules codifying some

kind of procedure to do so.

       Thus, if we make a mistake in a published panel order—which seems

quite likely, given the rushed, information-devoid, nonadversarial nature of the

proceeding—the best a petitioner can hope for is that someone on the court

notices and sua sponte requests a poll for rehearing en banc, following an

unknown, rarely-tested procedure to do so. Otherwise, the erroneous order

binds all future litigants in this Circuit.

                                     * * * * *

       Of course, much of the foregoing comes as a necessary result of the

sheer volume of second or successive applications that this Circuit decides.

Between 2000 and 2017, we decided 10,565 applications, disposing of at least

300 each year—3,588 coming in the wake of Johnson between the years of

2015 and 2017. I do not suggest that we have oral argument or even

government briefing in each of these proceedings; such a rule would

overwhelm this court, especially in light of our unique respect for the thirty-

day time limit.



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       But these serious limitations in the decision-making process should

make us reluctant to allow these orders to control the outcome in fully briefed

and argued merits appeals. And at the very least, the decision to let these panel

orders bind us should have been made by the full court by way of Circuit Rule.

However, the St. Hubert panel disagreed, and it promulgated its preferred rule

in a published opinion.

       Now that the St. Hubert panel has imposed its will on the entire court,

however, I hope that we will at least add Circuit Rules to mitigate the damage

to whatever extent possible. Our court needs guidance on when panel orders

can be published, cf. 11th Cir. R. 36 & I.O.P. 2–9 (outlining publication

parameters for opinions, not orders), and on the procedures surrounding calling

for an en banc poll on a published order, cf. Fed. R. App. P. 35; 11th Cir. R. 35

& I.O.P. 1–9 (specifying en banc polling procedures that revolve around the

issuance of a mandate, which does not occur for panel orders in the Eleventh

Circuit). Finally, due to the new paradigm in which any panel order may be

considered for publication, we should require all orders issuing from this court

to clearly state their publication status, just as we do for opinions. This will

eliminate any ambiguity as to the precedential weight to which an order is

entitled.

                                    * * * * *



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       Our country’s legal system “assumes that adversarial testing will

ultimately advance the public interest in truth and fairness.” Polk Cty. v.

Dodson, 454 U.S. 312, 318 (1981). Indeed, in other contexts, we disfavor

nonadversarial ex parte proceedings because they “conflict with a fundamental

precept of our system of justice.” In re Paradyne Corp., 803 F.2d 604, 612

(11th Cir. 1986). The rule that this court adopted in St. Hubert takes the

opposite view: it gives precedential weight to orders resulting from prisoners’

abbreviated applications, decided without a government response, in thirty

days, in an unappealable manner. In doing so, we are running counter to all

other circuits. The St. Hubert panel gave no justification for this, except that

published orders should bind if they are “squarely about [a] legal issue.” St.

Hubert, 883 F.3d at 1328. This is no justification at all, especially in light of

the institutional concerns noted above. This court should not allow these

orders to bind merits panels, and I hope that we will reconsider this ill-advised

rule in the future.




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MARTIN, Circuit Judge, with whom WILSON and JILL PRYOR, Circuit Judges,
join, specially concurring:

      I join Judge Wilson’s special concurrence, which eloquently brings to life

how this court has turned a mere screening duty, assigned to federal courts of

appeals by 28 U.S.C. § 2244(b)(3), into a rich source of precedent-producing

opinions that is depriving inmates of a process that could reveal them to be

wrongfully incarcerated. This is a process our court has debated in recent years,

and it is one I have certainly come to care about. See United States v. Seabrooks,

839 F.3d 1326, 1349–50 (11th Cir. 2016) (Martin, J., concurring); In re McCall,

826 F.3d 1308, 1311–12 (11th Cir. 2016) (Martin, J., concurring). Regrettably,

this court has now made things tougher for inmates who seek to have courts

examine the legitimacy of their incarceration, by holding that published orders on

motions to file second or successive applications are binding on all future appellate

panels. United States v. St. Hubert, 883 F.3d 1319, 1328–29 (11th Cir. 2018).

And as Judge Wilson points out, our court is issuing these precedent setting

opinions without the benefit of adversarial testing, because we are mandated to rule

within thirty days of the inmate’s filing, and we routinely do so based only on a

form filled out by the inmate alone. Our method for conducting this screening

function affects scores of people serving long sentences in Alabama, Florida, and

Georgia. I share Judge Wilson’s hope that our court reconsiders this practice going

forward.

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       In addition to sharing Judge Wilson’s views, I write separately to highlight

how this court’s use of rulings on prisoners’ mere requests to file a second or

successive application to create binding precedent goes far beyond the prima facie

examination called for by the statute.1 The job of courts of appeals in screening

these motions was never meant to include merits decisions about whether an

inmate is properly serving a (sometimes significantly) longer sentence because his

criminal history includes crimes of violence or violent felonies under the elements

clauses of 18 U.S.C. § 924(c)(3)(A) and (e)(2)(B)(i).

                                                  I.

       When an inmate who has already once asked for habeas relief comes to

believe there is a legal flaw in the sentence he is serving, the statute requires him to

get permission from our court before he can go back to District Court to seek

relief. In asking us for that permission, by way of a motion filed in our court, the

prisoner briefly summarizes why he should be allowed to file a second or

successive application. And when his request is based on a new rule of

constitutional law, the statute makes our review of this request quite narrow. Our

role is to “certif[y]” when the inmate makes “a prima facie showing” that the


1
  Although I do not find it the most natural fit, I use the terminology of the statute to distinguish
“motions,” which are requests filed in the courts of appeals for permission to file a second or
successive application seeking relief from a prison sentence. Section 2244 refers to the actual
filing that seeks relief, the § 2254 petitions and § 2255 motions filed in district courts, as the
“applications,” and I will do so as well. See 28 U.S.C. §§ 2244, 2254, 2255.


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proposed application will “contain . . . 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. §§ 2244(b)(3)(C), 2255(h).2

       Although our inquiry is narrow, there are a couple of things required of us.

First, we look to identify whether the prisoner is seeking relief based on a “new

rule of constitutional law.” 28 U.S.C. § 2255(h)(2). Second, we look to see if that

new rule has been “made retroactive to cases on collateral review by the Supreme

Court.” Id. Our court has referred to these two requirements as the “minimum

showing” necessary to file a second or successive application. In re Holladay, 331

F.3d 1169, 1173 (11th Cir. 2003).3

       A second or successive § 2255 motion must also identify, or “contain,” this

new constitutional rule. 28 U.S.C. § 2255(h). The exact meaning of this

requirement is unsettled across the circuits. In Holladay, this court held that a

“requisite showing” was “a sufficient showing of possible merit to warrant a fuller

2
  Motions for leave to file a second or successive § 2254 application must make a similar
showing that the application “relies on 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.
§ 2244(b)(2)(A) (emphasis added); see also In re Arnick, 826 F.3d 787, 789 n.2 (5th Cir. 2016)
(Elrod, J., dissenting) (discussing the Fifth Circuit’s holding that the provisions establish
identical legal standards).
3
  Most of the published decisions from other circuits applying the gatekeeping function in the
context of new rules of constitutional law address these two questions. See, e.g., Ezell v. United
States, 778 F.3d 762, 767 (9th Cir. 2015) (holding Descamps v. United States, 570 U.S. 254, 133
S. Ct. 2276 (2013), did not announce a new rule of constitutional law); In re Payne, 733 F.3d
1027, 1029 (10th Cir. 2013) (holding Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151
(2013), announced a new rule of constitutional law but had not been made retroactive on
collateral review by the Supreme Court).


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exploration by the district court.” 331 F.3d at 1173–74 (adopting the standard set

in Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). We elaborated that

“if in light of the documents submitted with the application it appears reasonably

likely that the application satisfies the stringent requirements for the filing of a

second or successive petition, we shall grant the application.” Id. at 1173

(quotations omitted and alterations adopted).

      Very few opinions from our circuit or others grapple with the meaning of

“prima facie showing” or what it means to “contain” a new rule of constitutional

law. The few that do agree that the statute establishes a permissive standard that

does not require any analysis of a claim’s merits. See Ochoa v. Sirmons, 485 F.3d

538, 541–42 (10th Cir. 2007) (per curiam) (“This statutory mandate does not direct

the appellate court to engage in a preliminary merits assessment. Rather, it focuses

our inquiry solely on the conditions specified in § 2244(b) that justify raising a

new habeas claim . . . .”). In this vein, the Third Circuit stated that whether an

application “relies on” a new rule cannot be based on “whether the claim has merit,

because [the Third Circuit does] not address the merits at all in [its] gatekeeping

function.” In re Hoffner, 870 F.3d 301, 308 (3d Cir. 2017). And in the Fifth

Circuit, Judge Elrod, writing in dissent, observed that “where the movant seeks a

non-frivolous extension of a new rule of constitutional law that the Supreme Court




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has made retroactive, our review should be complete.” In re Arnick, 826 F.3d 787,

791 (5th Cir. 2016) (Elrod, J., dissenting) (emphasis omitted).

      The plain language of the statute shows that it sets a less demanding

standard for allowing a second or successive application than for allowing appeals

from rulings of District Courts in habeas corpus proceedings. I have pointed to the

different standards set by the statute in the past. In re Saint Fleur, 824 F.3d 1337,

1343 (11th Cir. 2016) (Martin, J., concurring). In order to appeal District Court

rulings on a habeas corpus proceeding, the statute requires either a District or

Circuit judge to certify that the inmate has “made a substantial showing of the

denial of a constitutional right” and indicate which “issue or issues satisfy” this

requirement. 28 U.S.C. § 2253(c)(2)–(3). This certification, which an inmate must

have for a habeas appeal, is designated by the statute as a Certificate of

Appealability. 28 U.S.C. § 2253(c)(1). And this certification contrasts with the

motion seeking “[p]ermission to file a second or successive § 2255 petition

[which] merely requires a ‘prima facie showing’ that [the] petition will ‘contain a

new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court.’” Saint Fleur, 824 F.3d at 1343 (Martin, J., concurring)

(alterations adopted) (quoting 28 U.S.C. §§ 2244(b)(3)(C), 2255(h)(2)). The plain

meaning of the text of the statute “invites even less of an inquiry into the merits of

the proposed claim than the standard for a” Certificate of Appealability. Id.



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Congress was well aware of the effect of the standard for getting a Certificate of

Appealability, when in the same Act, it chose to adopt a textually less demanding

standard for motions for leave to file second or successive applications. See Slack

v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1603 (2000) (explaining that

AEDPA largely codified the standard for granting certificates of probable cause

announced in Barefoot v. Estelle, 463 U.S. 880, 894, 103 S. Ct. 3383, 3395

(1983)); Bennett, 119 F.3d at 469 (referring to the lack of guidance from “statutory

language or history or case law” on the prima facie showing standard adopted in

AEDPA).

      Consistent with the statute’s command, our sister circuits have largely

refrained from deciding the merits of a particular applicant’s claim at the motion

stage. See, e.g., Morris v. United States, 827 F.3d 696, 699 (7th Cir. 2016)

(Hamilton, J., concurring in the grant of an application) (“I think the best course

for now, in this and similar cases where application of ACCA depends on an

attempt conviction, is to grant the application to allow further development of the

attempt issue in the district courts.”); In re Williams, 759 F.3d 66, 70–71 (D.C.

Cir. 2014) (“The government’s argument concerning the application of the new

rule in Graham [v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010)] to this case, i.e.,

how Graham applies to a case concerning a crime that straddled the age of

majority, is a question for the district court in the first instance, not the court of



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appeals.”). So although the exact meaning of “contain” as used in § 2255(h) is not

settled law, it is clear that “the merits” of a proposed claim “are not relevant to

whether [the applicant] can obtain permission to bring a second or successive

§ 2255 motion.” In re Joshua, 224 F.3d 1281, 1282 n.2 (11th Cir. 2000) (per

curiam). It is hard to measure the harm done in recent years to inmates sentenced

in this circuit by this court’s failure to heed this prohibition.

                                            II.

      After Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), over

two thousand inmates filed motions with this court seeking relief because the

residual clause of the Armed Career Criminal Act was invalidated in Johnson v.

United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). In most all of these

thousands of post-Welch motions, inmates asserted they were serving sentences,

made longer due to their criminal history, including prior convictions which had

been deemed “violent” by the sentencing judge. Our job was to decide whether

each of these inmates made the prima facie showing that their application

“contain[ed]” the new rule of constitutional law announced in Johnson. It seemed

clear that any given application failed to “contain” a Johnson claim when it did

nothing more than cite Johnson. In re Thomas, 823 F.3d 1345, 1348 (11th Cir.

2016) (per curiam). But see Ochoa, 485 F.3d at 545 (referencing “efforts to inject

a merits-related element” into the § 2244(b)(2) review, but recognizing this would



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require an “amendment of the statute, which is the province of Congress, not the

courts.”). But because Johnson was so recently decided, we had little precedent

about whether the criminal history of these inmates still qualified them as violent

offenders after the demise of the residual clause. So in ruling on this mass of

motions, our court had to decide whether to allow an inmate to proceed to District

Court for evaluation (i.e., grant his motion) where no binding precedent dictated

whether his predicate crime should have resulted in a longer sentence. Also, we

had to decide the extent to which we ourselves should try and reimagine an

inmate’s original sentencing, now with the punitive statute rewritten as per

Johnson.

      In answering these questions, our guiding star should have been the “text

and context” of §§ 2244(b)(C)(3) and 2255(h) as well as “equity.” Hoffner, 870

F.3d at 308–09. But despite the narrow role given us by those statutes, when our

court receives Johnson motions, I’ve observed that we “comb[] through sealed

records from the prisoner’s original sentence hearing and go[] ahead to make a

decision about whether the prisoner will win if we let him file his § 2255 motion in

district court.” In re Clayton, 829 F.3d 1254, 1257 (11th Cir. 2016) (Martin, J.,

concurring). Ultimately our court ruled to require us to decide the merits of

whether the inmate had been more harshly sentenced based on the surviving parts

of the Armed Career Criminal Act, as opposed to the portion that was invalidated



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by the Supreme Court in Johnson. See, e.g., Thomas, 823 F.3d at 1349 (denying a

motion for a second or successive § 2255 motion after looking back to the

sentencing record to say that the District Court did not rely on the portion of the

Armed Career Criminal Act invalidated by the Supreme Court in Johnson). This

test is simply more demanding than the prima facie showing called for under the

statute. See Saint Fleur, 824 F.3d at 1343 (Martin, J., concurring); Ochoa, 485

F.3d at 546 (holding that the only relevant question is “the satisfaction of the

conditions specified in § 2244(b)(2)(A)”). By adopting this practice, this court

routinely rejects motions from inmates who believe they are serving sentences

unlawfully prolonged based on a statute that has now been declared

unconstitutional.

      Our court entered hundreds of orders denying motions based on this merits

inquiry, thus touching many lives. Most perniciously, by my count, this court has

published eight opinions going beyond the prima facie showing standard to hold

(for the first time, and now thanks to St. Hubert, in a binding and precedential

decision) that a particular crime was a “crime of violence” or a “violent felony”

under the elements clauses in § 924(c)(3)(A), (e)(2)(B)(i), or United States

Sentencing Guideline § 4B1.2(a). See In re Hines, 824 F.3d 1334, 1337 (11th Cir.

2016) (per curiam) (bank robbery in violation of 18 U.S.C. § 2113(a), (d)); Saint

Fleur, 824 F.3d at 1341 (Hobbs Act robbery); In re Colon, 826 F.3d 1301, 1305



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(11th Cir. 2016) (per curiam) (aiding-and-abetting Hobbs Act robbery); In re

Smith, 829 F.3d 1276, 1280 (11th Cir. 2016) (per curiam) (carjacking in violation

of 18 U.S.C. § 2119); In re Watt, 829 F.3d 1287, 1290 (11th Cir. 2016) (per

curiam) (aiding-and-abetting assaulting a postal employee); In re Sams, 830 F.3d

1234, 1239 (11th Cir. 2016) (per curiam) (bank robbery in violation of 18 U.S.C. §

2113(a)); In re Burgest, 829 F.3d 1285, 1287 (11th Cir. 2016) (per curiam)

(Florida manslaughter and kidnapping).4 This practice has continued as recently as

this past March. In In re Welch, 884 F.3d 1319 (11th Cir. 2018), a panel held, as a

matter of first impression, that Alabama first degree robbery and Alabama first

degree assault categorically qualify as violent crimes under the elements clause of

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Id. at 1324. This led

to the panel’s holding that Mr. Welch “has three prior qualifying ACCA

convictions that survive Johnson’s invalidation of the residual clause, which means

that his application fails to make a prima facie showing that he is entitled to relief

under Johnson.” Id. at 1325. The court that sentenced Mr. Welch had no

opportunity to consider his claim that Johnson entitled him to relief.

4
  Some of these decisions were issued over a dissent, which would ordinarily require oral
argument under this circuit’s rules. See 11th Cir. R. 34-3(b)(3); see also Colon, 826 F.3d at 1308
(Martin, J., dissenting) (“Deciding the merits of not-yet-filed § 2255 motions in this way is
especially dangerous in cases like Mr. Colon’s that turn on a complex question of first
impression.”); Smith, 829 F.3d at 1285 (Jill Pryor, J., dissenting) (“We certainly have never held
that the [carjacking] statute would qualify categorically even setting aside the residual clause in
§ 924(c). It would be impractical and imprudent to decide this complex question in the first
instance here.”).


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       This circuit’s practice of ruling on motions in such a way as to create

binding precedent that a given conviction must count as a “crime of violence” or a

“violent felony” for federal sentencing purposes is an outlier from the practice of

other circuits.5 This practice also reflects a split among circuits about how to

perform the gatekeeping function of §§ 2244(b)(3)(C) and 2255(h).

Compare Ochoa, 485 F.3d at 543, with In re Williams, 826 F.3d 1351, 1357 (11th

Cir. 2016) (declining to grant a motion where the applicant “made a prima facie

showing under Johnson as to Count 3” but could not show “that he would ‘benefit’

from Johnson, since he received a concurrent mandatory life sentence on Count 1

that . . . is unaffected by Johnson”). And this circuit’s outlier status is particularly

worrisome in this context, where the statute denies prisoners the ability to seek

review by way of an appeal or a writ of certiorari to the Supreme Court. See 28

U.S.C. § 2244(b)(3)(E). In light of this limitation and the lack of uniformity

among federal appeals courts, this issue may be the proper subject for certifying a

question to the Supreme Court about the correct application of the prima facie

showing standard. See 28 U.S.C. § 1254(2) (permitting certified questions from

courts of appeals); Felker v. Turpin, 518 U.S. 651, 667, 116 S. Ct. 2333, 2342


       5
         I’ve found only two published decisions from other circuits that made similar decisions
on second or successive applications. In re Irby, 858 F.3d 231, 234 (4th Cir. 2017); Dawkins v.
United States, 809 F.3d 953, 954, 956 (7th Cir. 2016). In Dawkins, Judge Ripple dissented,
arguing that the application “raise[d] an important question” that should be “address[ed] more
carefully than the time constraints statutorily imposed on [] consideration of motions under 28
U.S.C. § 2244(b)(3)(B) permit.” Id. at 956 (Ripple, J., dissenting).


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(1996) (Souter, J., concurring) (suggesting a certified question would be

appropriate “if the courts of appeals adopted divergent interpretations of the

gatekeeper standard” of § 2244(b)).

      In the meantime, we compound these problems by making decisions on

motions for leave to file second or successive applications binding precedent

outside of that context. Already now, as a result of St. Hubert’s holding and the

eight erroneous decisions I’ve identified above, all judges of this court are

prohibited from giving inmates the type of merits review of their sentences that

inmates routinely receive in other circuit courts of appeal.




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