     Case: 16-20815    Document: 00514577582      Page: 1   Date Filed: 07/30/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                  No. 16-20815                           FILED
                                                                     July 30, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

            Plaintiff-Appellee,

v.

KEELAND DURALLE WILLIAMS,

            Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before ELROD, GRAVES, and HO, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Before the court is Defendant Keeland Duralle Williams’s motion for re-
consideration of the denial of his application for a certificate of appealability
(COA). We GRANT the motion, withdraw the prior order of March 9, 2018, and
substitute the following:
      In 2014, Defendant Keeland Duralle Williams, who proceeds before this
court pro se, was convicted of aiding and abetting bank robbery, in violation of
18 U.S.C. §§ 2113(a) & (d) (Count One), and aiding and abetting the carrying
and brandishing of a firearm in relation to a crime of violence, in violation of 18
U.S.C. § 924(c) (Count Two). The district court sentenced him to seventy months
of imprisonment on Count One and a consecutive eighty-four-month term of
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                                  No. 16-20815

imprisonment on Count Two. Williams did not appeal, but he later filed a 28
U.S.C. § 2255 motion, which the district court dismissed as time-barred. He seeks
a COA in this court, arguing that (1) reasonable jurists would debate whether
the district court erred in determining that his § 2255 motion was time-barred
because Welch v. United States, 578 U.S. —, 136 S. Ct. 1257 (2016), made John-
son v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015), in which the Supreme
Court invalidated the residual clause of the Armed Career Criminal Act of 1984,
18 U.S.C. § 924(e)(2)(B)(ii), retroactive to cases on collateral review; (2) his
§ 2255 motion was timely filed under § 2255(f)(3) within one year of Johnson;
and (3) in light of Johnson, the residual clause of 18 U.S.C. § 924(c)(3)(B), the
statute under which he was sentenced, was unconstitutionally vague.
      Federal habeas proceedings are subject to the rules prescribed by the Anti-
terrorism and Effective Death Penalty Act (AEDPA). Matamoros v. Stephens,
783 F.3d 212, 215 (5th Cir. 2015); see 28 U.S.C. § 2254. Under AEDPA, a federal
habeas petitioner may appeal a district court’s dismissal of his § 2255 motion
only if the district court or the court of appeals first issues a certificate of ap-
pealability. 28 U.S.C. §§ 2253(c)(1)(B) & 2253(c)(2); Buck v. Davis, 580 U.S. —,
—, 137 S. Ct. 759, 773 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003).
When a district court has denied relief on procedural grounds, “the petitioner
seeking a COA must show both ‘that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.’” Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
      In the initial review of Williams’s application, this court posited that Wil-
liams could not make the required showing because “Johnson and Welch ad-
dressed 18 U.S.C. § 924(e)(2)(B)(ii) rather than the residual clause of . . .
§ 924(c)(3)(B),” and “[t]his court has declined to extend the holding in Johnson


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                                       No. 16-20815

to invalidate the residual clause of § 924(c)(3)(B).” As support for this position,
we cited two cases—United States v. Jones, 854 F.3d 737, 740 (5th Cir.), cert.
denied, 583 U.S. —, 138 S. Ct. 242 (2017), and United States v. Chapman, 851
F.3d 363, 374–75 & n.7 (5th Cir. 2017)—in which we had ruled that the argu-
ment that § 924(c)(3)(B) is unconstitutionally vague under Johnson was fore-
closed by our en banc decision in United States v. Gonzalez-Longoria, 831 F.3d
670, 675–77 (5th Cir. 2016) (en banc) (holding that the definition of “crime of
violence” found in 18 U.S.C. § 16(b), which is identical to the definition found in
§ 924(c)(3)(B), “remains constitutional in the aftermath of Johnson”), vacated,
585 U.S. — (June 18, 2018).
       But three months ago, in Sessions v. Dimaya, 584 U.S. —, 138 S. Ct. 1204
(2018), the Supreme Court held that § 16(b)’s definition of “crime of violence,” as
used in the Immigration and Nationality Act, is unconstitutionally vague, abro-
gating (and later affirmatively vacating) Gonzalez-Longoria. See id. at 1213–16,
1223 & 1212 n.2.; see also Gonzalez-Longoria, 585 U.S. at — (vacating the judg-
ment and remanding the case “for further consideration in light of” Dimaya). 1
Respecting the Court’s ruling, which vitiated the sole ground upon which we had
ruled that Williams was not entitled to a COA, we requested briefing from the
parties on the effect, if any, of Dimaya’s holding on Williams’s application.
       Section 2255(f)(3), which governs the timeliness of Williams’s § 2255 mo-
tion, provides that a motion must be filed within one year from the latest of “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 retro-
actively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3); see also



       1There will be no further consideration of Gonzalez-Longoria by this court, however. The
Defendant has been released from prison and declined to mount any further challenge on re-
mand. United States v. Gonzalez-Longoria, — F.3d —, —, 2018 WL 3421806 (5th Cir. July 13,
2018) (en banc).


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                                  No. 16-20815

generally Dodd v. United States, 545 U.S. 353 (2005). The Supreme Court held
in Johnson that § 924(e)(2)(B)(ii) is unconstitutionally vague—which commenced
the one-year clock for defendants sentenced under that statute—and held in Di-
maya that § 16(b) is unconstitutionally vague—which commenced the one-year
clock for defendants sentenced under that statute—but it has made no predicate
holding vis-à-vis § 924(c)(3)(B). Though the Court has instructed the courts of
appeals to reconsider § 924(c)(3)(B) cases in light of Dimaya, see, e.g., United
States v. Jackson, 584 U.S. —, 138 S. Ct. 1983 (2018); United States v. Jenkins,
584 U.S. —, 138 S. Ct. 1980 (2018), that instruction does not amount to a deter-
mination that the provision is unconstitutional. There is no “newly recognized”
right for Williams to assert here.
      Section 924(c)(3)(B) remains valid. An assumption that the statute will
eventually be invalidated at some indeterminate point cannot overcome the
timeliness requirement of § 2255(f)(3). For Williams’s motion to even be consid-
ered, the statute must actually have first been invalidated. The one-year clock
on § 924(c)(3)(B) has not yet started. So in that sense, his motion is untimely,
but because it was filed too early, not too late. Cf. United States v. Santistevan,
— F. App’x —, —, 2018 WL 1779331, at *3 (10th Cir. Apr. 13, 2018) (“[A]n initial
§ 2255 motion invoking Johnson [is] not timely under § 2255(f)(3) when the un-
derlying statute of conviction [is] § 924(c), not the ACCA.”).
      If § 924(c)(3)(B) is ultimately held to be unconstitutional, that finding may
open the door to future collateral challenges to sentences rendered under that
statute. But that has not yet come to pass, so we cannot consider such a chal-
lenge at this time. We conclude that jurists of reason would not find it debatable
that the district court was correct in its procedural ruling. See Gonzalez, 565 U.S.
at 140–41.
      The application for a certificate of appealability is DENIED.



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