           Case: 16-17294   Date Filed: 03/18/2020   Page: 1 of 7



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17294
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 8:16-cv-01659-SCB-TBM; 8:06-cr-00353-SCB-TBM-1



DEANTE BLACKMAN,

                                                         Petitioner-Appellant,

                                versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 18, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Deante Blackman appeals the district court’s dismissal of his 28 U.S.C.

§ 2255 motion to vacate, in which he argued that his 18 U.S.C. § 924(c) conviction

should be vacated in light of Johnson v. United States, 135 S. Ct. 2551 (2015). We

granted a certificate of appealability (COA) on one issue: whether the district court

erred in determining that Blackman’s § 2255 motion was time-barred under

§ 2255(f)(3) in light of Johnson. We held Blackman’s appeal in abeyance pending

the issuance of the mandate in Ovalles v. United States 1 and continued the stay

until the Supreme Court decided United States v. Davis, 588 U.S. ___, 139 S. Ct.

2319 (2019).

       A prisoner in federal custody may file a motion to vacate, set aside, or

correct his sentence by asserting “that the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C.

§ 2255(a). There is a one-year statute of limitations for filing a § 2255 motion to

vacate, which begins to run following, as relevant here, the date the right asserted

was initially recognized by the Supreme Court, if that right has been newly




1
 Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017), reh’g en banc granted, opinion
vacated, 889 F.3d 1259 (11th Cir. 2018), and on reh’g en banc, 905 F.3d 1231 (11th Cir. 2018),
opinion reinstated in part, 905 F.3d 1300 (11th Cir. 2018), abrogated by United States v. Davis,
139 S. Ct. 2319 (2019).
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recognized by the Supreme Court and made retroactively applicable to cases on

collateral review. 28 U.S.C. § 2255(f)(3). This limit is not jurisdictional. Sandvik

v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam).

      We review de novo the district court’s dismissal of a § 2255 motion as

untimely. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). When

reviewing a district court’s denial of a § 2255 motion, we review questions of law

de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225,

1232 (11th Cir. 2004) (per curiam). Under our prior-panel-precedent rule, “a prior

panel’s holding is binding on all subsequent panels unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (2008).

      Section 924(c) of Title 18 of the United States Code criminalizes the use or

carrying of a firearm in furtherance of a crime of violence or drug-trafficking

crime. “Crime of violence” is defined as a felony offense that either

      (A) has as an element the use, attempted use, or threatened use of
      physical force against the person or property of another, or
      (B) 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.

18 U.S.C. § 924(c)(3). We often refer to § 924(c)(3)(A) as the “elements clause”

and § 924(c)(3)(B) as the “residual clause.” Thompson v. United States, 924 F.3d

1153, 1155 (11th Cir. 2019).


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      Recently, in Davis, the Supreme Court extended its holdings in Johnson and

Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018) to § 924(c), holding that

that § 924(c)(3)(B)’s residual clause, like the residual clauses in the Armed Career

Criminal Act (“ACCA”) and 18 U.S.C. § 16(b), is unconstitutionally vague.

Davis, 139 S. Ct. at 2336. In so holding, the Court emphasized that there was no

“material difference” between the language or scope of § 924(c)(3)(B) and the

residual clauses struck down in Johnson and Dimaya, and, therefore, it concluded

that § 924(c)(3)(B) was unconstitutional for the same reasons. Id. at 2326, 2336.

      In In re Hammoud, we held that Davis announced “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 931 F.3d 1032, 1038–39 (11th Cir. 2019);

see 28 U.S.C. § 2255(h)(2). In doing so, we explained that Davis extended

Johnson’s and Dimaya’s holdings to a new statutory context, while noting that

Davis’s result was not necessarily dictated by precedent. In re Hammoud, 931

F.3d at 1038–40 (stating that Davis was a new constitutional rule “in its own right,

separate and apart from (albeit primarily based on) Johnson and Dimaya”). We

also held that the district court, having never previously considered the Davis

issue, should review the merits of such a claim in the first instance. Id. at 1040–41.

We noted that “in the district court, Hammoud will bear the burden of showing that

he is actually entitled to relief on his Davis claim, meaning he will have to show


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that his § 924(c) conviction resulted from application of solely the residual clause.”

Id. at 1041 (citing Beeman v. United States, 871 F.3d 1215, 1222–25 (11th Cir.

2017)). Additionally, we recently addressed the merits of an appellant’s Davis

claim where the claim was originally raised under Johnson but recast as a Davis

claim, as Davis was decided while the appeal was pending. United States v.

Steiner, 940 F.3d 1282, 1288, 1292–93 (11th Cir. 2019) (per curiam).

       As an initial matter, the COA is sufficiently broad to encompass Blackman’s

Davis claim.2 See Davis, 139 S. Ct. 2325–26 (stating that there was no “material

difference” between the language and scope of the residual clauses struck down in

Johnson and Dimaya and § 924(c)(3)(B)’s residual clause); Steiner, 940 F.3d at

1288, 1292–93 (addressing the merits of a Johnson claim “recast” as a Davis claim

on appeal). Specifically, we view the COA as broad enough to encompass whether

Blackman’s § 2255 motion is timely as to his Davis claim and, additionally,

whether his Davis claim can be properly considered within the present § 2255

proceedings.

       Here, it is clear that Davis announced the new rule of constitutional law

applicable to Blackman’s challenge to his § 924(c) conviction, rather than Johnson.



2
  Even if the COA did not encompass Blackman’s Davis claim, we could sua sponte expand the
COA to address this claim. Mays v. United States, 817 F.3d 728, 733 (11th Cir. 2016) (per
curiam) (“On exceptional occasions, we may expand a COA sua sponte to include issues that
reasonable jurists would find . . . debatable.” (internal quotation mark omitted)).
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See In re Hammoud, 931 F.3d at 1038–39.3 And, because Davis represented an

extension of the Supreme Court’s decisions in Johnson and Dimaya, we conclude

that the district court’s conclusions that Johnson did not apply to § 924(c) and,

therefore, that Blackman’s § 2255 motion was untimely, were erroneous. See

Davis, 139 S. Ct. at 2325–27; In re Hammoud, 931 F.3d at 1038–40 (explaining

that the rule announced in Davis was primarily based on Johnson and Dimaya).

However, because Davis was decided while Blackman’s appeal was pending, the

district court necessarily never considered it. Regardless, because Blackman raised

his Davis claim within one year of the Davis decision, we conclude that his § 2255

motion was timely filed. See 28 U.S.C. § 2255(f)(3).

       Moreover, the district court never considered whether Blackman had shown

that his § 924(c) conviction relied solely on the residual clause. See In re

Hammoud, 931 F.3d at 1040–41; Beeman, 871 F.3d at 1222–25. It also did not

address the merits of Blackman’s arguments that his predicate convictions do not

categorically qualify as crimes of violence under § 924(c)(3)(A)’s elements clause.

The district court is in a better position to review Blackman’s Davis claim in the

first instance. In re Hammoud, 931 F.3d at 1040–41. Accordingly, we vacate the




3
 Blackman’s claim that In re Hammoud was wrongly decided is foreclosed by our prior precedent
rule. See Archer, 531 F.3d at 1352.
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dismissal of Blackman’s § 2255 motion and remand to the district court to

consider, in light of Davis and In re Hammoud, whether he is entitled to relief.

      VACATED AND REMANDED.




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