              Case: 16-15790    Date Filed: 06/18/2018   Page: 1 of 9


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-15790
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:16-cv-02339-TWT.
                          1:00-cr-00165-TWT-ECS-1


ANTHONY BERNARD HARRIS,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                                 (June 18, 2018)

Before WILSON, NEWSOM, and FAY, Circuit Judges.

PER CURIAM:

      This case is identical to Beeman v. United States, 871 F.3d 1215 (11th Cir.

2017), in every material respect—it presents the same issues and involves the same
              Case: 16-15790     Date Filed: 06/18/2018   Page: 2 of 9


lawyers (on both sides) making the same arguments about the same statutes. It is

thus, not surprisingly, controlled by Beeman. The facts are known the parties and

counsel; we will not repeat them here except as necessary.

      The district court denied as untimely Anthony Bernard Harris’s 28 U.S.C.

§ 2255 motion to vacate his sentence on the ground that Harris had raised a claim

only under Descamps v. United States, 570 U.S. 254 (2013)—which, applying our

precedent, the court concluded did not restart the one-year statute of limitations

that governed Harris’s motion. Previously, Harris was convicted of being a felon

in possession of a firearm under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. §§ 922(g)(1) and 924(e). He was determined to be an armed career

criminal based, in part, on a prior Georgia conviction for aggravated assault. On

appeal, Harris argues that he raised a timely claim not under Descamps, but rather

under Johnson v. United States, 135 S. Ct. 2551 (2015)—which we have held does

restart the one-year clock.

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

time-barred. Drury v. United States, 507 F.3d 1295, 1296 (11th Cir. 2007).

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

affirm on any basis supported by the record. Castillo v. United States, 816 F.3d

1300, 1303 (11th Cir. 2016).




                                          2
               Case: 16-15790       Date Filed: 06/18/2018   Page: 3 of 9


      The Antiterrorism and Effective Death Penalty Act of 1996 establishes a

one-year statute of limitations for filing a § 2255 motion, which runs from the

latest of four triggering 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 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.

28 U.S.C. § 2255(f). It is the movant’s burden to show that he filed his motion

within one of the four one-year limitation periods. See Rivers v. United States, 777

F.3d 1306, 1316 (11th Cir. 2015) (holding that the movant has the burden of

providing entitlement to relief in a habeas proceeding). The § 2255(f) statute of

limitations “requires a claim-by-claim approach to determine timeliness.” Beeman,

871 F.3d at 1219 (quotation omitted). Thus, if a movant asserts that his § 2255

motion is timely because he filed it within one year of a Supreme Court’s issuance

of a decision recognizing a new right made retroactive to cases on collateral




                                            3
              Case: 16-15790    Date Filed: 06/18/2018   Page: 4 of 9


review, “we must determine whether each claim asserted in the motion depends on

that new decision.” Id.

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

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

§§ 922(g), 924(a)(2). If, however, a defendant who is convicted 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). In 2001, when Harris was sentenced, the ACCA

defined “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 the 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 is known as the “elements clause.” Beeman,

871 F.3d at 1218 (quotation omitted). The second prong comprises the

“enumerated offenses clause” and the “residual clause.” Id. (quotation omitted).

      In Johnson, the Supreme Court held that a defendant’s sentence cannot be

increased using the ACCA’s residual clause because it is unconstitutionally vague.

Johnson, 135 S. Ct. at 2563. The Court severed the residual clause from the


                                         4
              Case: 16-15790     Date Filed: 06/18/2018    Page: 5 of 9


remainder of § 924(e), however, clarifying that its decision did “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.” Id. Later the Supreme Court held that

the new right recognized by Johnson applied retroactively to cases on collateral

review. See Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016).

Accordingly, the Johnson decision qualifies as a triggering date under § 2255(f)(3).

      In contrast, Descamps, which held that sentencing courts may not apply the

so-called “modified categorical” approach to determine if a conviction is a “violent

felony” under the ACCA’s elements clause when the crime of conviction has a

“single, indivisible set of elements,” does not qualify as a triggering date under

§ 2255(f)(3). See Descamps, 570 U.S. at 258. Although we have held that the

Descamps decision applies retroactively to cases on collateral review, we

emphasized that Descamps did not establish a new right. See Mays v. United

States, 817 F.3d 728, 733-34 (11th Cir. 2016); see 28 U.S.C § 2255(f)(3).

      In Beeman, we explained that whereas a “Johnson claim contends that the

defendant was sentenced as an armed career criminal under the residual clause,” a

“Descamps claim asserts that the defendant was incorrectly sentenced as an armed

career criminal under the elements or enumerated offenses clause.” Beeman, 871

F.3d at 1220. We held that the defendant there, who (like Harris here) challenged

his conviction for Georgia aggravated assault as an ACCA predicate offense,


                                          5
               Case: 16-15790     Date Filed: 06/18/2018     Page: 6 of 9


raised both a Descamps claim and a Johnson claim. Id. Specifically, we held that,

although the defendant there (like Harris) focused heavily on his argument that the

Descamps decision meant that his Georgia conviction for aggravated assault could

no longer qualify as a violent felony under the elements clause, he also argued (as

does Harris) that the district court relied on the residual clause to find that his

aggravated-assault conviction qualified as an ACCA violent felony. Id. We thus

affirmed the district court’s determination that, to the extent the defendant raised a

Descamps claim, that claim was untimely. Id. We held, however, that the

defendant had also raised a Johnson claim that was timely under § 2255(f)(3). Id.

at 1220-21.

      As to the merits of the Johnson claim, we concluded that the defendant had

failed to carry his burden of proving that the residual clause “actually adversely

affected the sentence he received.” Id. at 1221. We held that “[t]o 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.”

Id. at 1221-22. We explained that, “[i]f it is just as likely that the 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.” Id. at 1222. In so holding,

we rejected the defendant’s premise that a Johnson movant meets his burden


                                            6
              Case: 16-15790       Date Filed: 06/18/2018   Page: 7 of 9


unless the record affirmatively shows that the district court relied on the ACCA’s

elements clause. Id. at 1223. Because the defendant there had conceded that there

was nothing in the record demonstrating that the district court relied only on the

residual clause, and because our own review confirmed as much, we held that the

defendant’s Johnson claim was due to be denied because he had failed to carry his

burden of proof. Id. at 1224-25.

      Here, as an initial matter, the government correctly concedes that Harris

(like Beeman before him) raised both a Descamps claim and a Johnson claim in his

§ 2255 motion. In his § 2255 motion, Harris argued that, under Descamps, the

applicable portion of the Georgia aggravated-assault statute was non-generic and

indivisible because it provided that to commit aggravated assault, a person must

commit assault with a “deadly weapon or with any object, device, or instrument”

that, when used against a victim, is likely to or actually does result in serious

bodily injury. As to his Descamps claim, the district court properly denied Harris’s

§ 2255 motion as untimely, because Harris was convicted in 2000 and first raised

the Descamps claim in 2016, and because, as already explained, Descamps does

not qualify as a triggering date under § 2255(f). See 28 U.S.C. § 2255(f)(1), (3);

Beeman, 871 F.3d at 1220.

      But Harris (again, like Beeman) also raised a Johnson claim; he argued that

his Georgia aggravated-assault conviction no longer qualified as a violent felony


                                           7
                Case: 16-15790    Date Filed: 06/18/2018    Page: 8 of 9


under the ACCA because the residual clause is unconstitutionally vague, 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.”         Harris’s Johnson claim was timely

because he filed his § 2255 motion two days before the one-year anniversary of the

Johnson decision, which (unlike Descamps) does qualify as a triggering date under

§ 2255(f). See 28 U.S.C. § 2255(f)(3); Johnson, 135 S. Ct. at 2551; Beeman, 871

F.3d at 1220.

      Nevertheless, as in Beeman, Harris failed to prove that it was more likely

than not that it was use of the residual clause that led to the sentencing court’s

enhancement of his sentence. See Beeman, 871 F.3d at 1221-22. In his appellate

brief, Harris concedes (as did Beeman) that the sentencing court was silent as to

whether it found the Georgia aggravated-assault conviction to be an ACCA

predicate offense under the residual clause or the elements clause. And as was the

case in Beeman, the record is similarly silent as to that issue; neither the PSI nor

the district court at sentencing explained or indicated in any way whether the

ACCA enhancement applied because Georgia aggravated assault was a violent

felony under the ACCA’s elements clause or residual clause. See Beeman, 871

F.3d at 1224-25. In Beeman, we squarely rejected the argument that Harris now

makes—namely, that a Johnson movant meets his burden of showing a right to


                                           8
                 Case: 16-15790      Date Filed: 06/18/2018      Page: 9 of 9


seek a merits ruling on his § 2255 “unless the record affirmatively shows that the

district court relied upon the ACCA’s elements clause.” Beeman, 871 F.3d at

1223. Accordingly, given the record here, Harris’s Johnson claim is due to be

denied because he failed to carry his burden of proving that it was more likely than

not that he was sentenced as an armed career criminal under the ACCA’s residual

clause. We may affirm on any ground supported by the record. See Castillo, 816

F.3d at 1303.1

       AFFIRMED.




1
  Given our holdings that Harris’s Descamps claim was properly denied as untimely and that his
Johnson claim fails on the merits, we need not address his separate argument that his Georgia
aggravated-assault convictions do not qualify as violent felonies under the ACCA’s elements
clause.
                                               9
