           Case: 16-15782   Date Filed: 05/03/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15782
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 8:15-cv-02467-JSM-MAP; 8:09-cr-00434-JSM-MAP-1



CHRISTOPHER FRENCH,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

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

                              (May 3, 2018)

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

PER CURIAM:
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      Christopher French, a federal prisoner proceeding pro se, appeals the

dismissal of his motion to vacate, set aside, or correct his sentence, pursuant to 28

U.S.C. § 2255. We granted a certificate of appealability (“COA”) on the issue of

whether the district court erred in dismissing as time-barred French’s claim that he

no longer qualifies as an armed career criminal after the Supreme Court’s decision

in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2251 (2015). French argues

that the district court erred because his Johnson-based motion was timely under 28

U.S.C. § 2255(f)(3). We agree, and we vacate and remand.

                                         I.

      On January 12, 2010, the district court accepted French’s plea of guilty to

one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). A few months later, French was sentenced under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to the mandatory minimum

sentence of fifteen years of imprisonment.

      The ACCA requires a prison sentence of no less than fifteen years when a

defendant who violates § 922(g) has three or more prior convictions for a “violent

felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines

the term “violent felony” to include any crime that “involves conduct that presents

a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). This

part of the violent-felony definition is known as the “residual clause.” See Mays v.


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United States, 817 F.3d 728, 730–31 (11th Cir. 2016). The remaining portions of

the violent-felony definition are known as the “enumerated clause” and the

“elements clause.” Id. at 731.

      French’s ACCA sentence was based on four prior convictions for aggravated

burglary in Tennessee.    See Tenn. Code § 39-14-403.         French’s presentence

investigation report (“PSR”) designated these convictions as “violent felonies” but

did not indicate under which ACCA clause they qualified. Likewise, the district

court at sentencing did not indicate upon which clause the ACCA sentence was

based. French did not pursue a direct appeal.

      On June 26, 2015, the Supreme Court issued the Johnson decision, which

held that the residual clause of the ACCA is unconstitutionally vague. Johnson,

135 S. Ct. at 2563.      The Supreme Court went on to hold that Johnson is

retroactively applicable to cases on collateral review. Welch v. United States, 578

U.S. ___, 136 S. Ct. 1257, 1268 (2016).

      On October 19, 2015, French filed a pro se motion to correct his sentence

under 28 U.S.C. § 2255. He argued that his ACCA sentence was invalid in light of

Johnson and that he “no longer has the qualifying predicates needed to uphold his

sentence.”   He contended that, after Johnson, his convictions for aggravated

burglary no longer qualified as ACCA predicate offenses.            In an attached

memorandum, he argued that his prior convictions could not be used to enhance


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his sentence because they did not qualify under either the enumerated clause or the

elements clause. And he asserted that his § 2255 motion was timely because it was

filed within one year of Johnson.

      The district court dismissed French’s § 2255 motion, finding that it was not

timely because it was not actually based on Johnson. The court determined that

Johnson did not affect French’s sentence because his Tennessee convictions for

aggravated burglary qualified as ACCA predicates under the “enumerated clause,”

citing a Sixth Circuit decision issued after French was sentenced in 2010.

      French appealed, and this Court granted a COA on the question of whether

the district court erred in dismissing French’s § 2255 motion as time-barred.

                                         II.

      A district court’s determination that a § 2255 motion is time-barred is

reviewed de novo. Drury v. United States, 507 F.3d 1295, 1296 (11th Cir. 2007).

We liberally construe the filings of pro se parties. Mederos v. United States, 218

F.3d 1252, 1254 (11th Cir. 2000).

      A § 2255 motion is timely if it is filed within one year of the latest of four

possible triggering dates. 28 U.S.C. § 2255(f). The triggering date relevant to this

case is “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.” Id. § 2255(f)(3). It is


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undisputed that Johnson constituted a newly recognized right that has been made

to apply retroactively on collateral review. See Welch, 136 S. Ct. at 1268. And

French’s § 2255 motion was clearly filed within a year of Johnson.

      After the district court’s decision in this case, and while French’s appeal was

pending, a panel of this Court decided Beeman v. United States, 871 F.3d 1215

(11th Cir. 2017). Beeman involved a § 2255 motion that purported to rely on

Johnson but was dismissed because the district court found it was actually based

on Descamps v. United States, 570 U.S. 254 (2013). Beeman, 871 F.3d at 1218–

19. The Beeman panel clarified that a claim based on Descamps would not trigger

the one-year limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on

Johnson would. Id. at 1220.

      To distinguish between the two types of claims, the panel explained that “[a]

Johnson claim contends that the defendant was sentenced as an armed career

criminal under the residual clause, while a Descamps claim asserts that the

defendant was incorrectly sentenced . . . under [the other] clause[s].” Id. The

panel found that Beeman had raised a timely Johnson claim because he argued that

his offense “historically qualified as an ACCA predicate under the ACCA’s

residual clause,” and because he filed his motion just before the one-year

anniversary of the Johnson decision. Id. at 1220–21 (alteration adopted). The

panel then proceeded to consider the merits of the Johnson claim. Id. at 1221.


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                                        III.

      Under § 2255(f)(3), French’s § 2255 motion was timely if he “assert[ed] a

Johnson claim.” Id. at 1220. And he asserted a Johnson claim if he “contend[ed]

that [he] was sentenced as an armed career criminal under the residual clause.” Id.

We conclude that he did.

      In his § 2255 motion and a supporting memorandum, French made repeated

references to Johnson and claimed that Johnson invalidated his ACCA sentence.

He contended that, in light of Johnson, he “no longer has the qualifying predicates

needed to uphold his sentence.” And he asserted that his ACCA sentence could

not stand because his prior convictions for aggravated battery did not qualify under

either the enumerated clause or the elements clause. Thus, French clearly asserted

that Johnson affected whether or not he qualified as an armed career criminal,

which, when liberally construed, we read as an assertion that he was sentenced

based on the residual clause. See Mederos, 218 F.3d at 1254. Plus, French

specifically asserted that his § 2255 motion was timely because it was filed within

one year of Johnson, which demonstrates his desire to raise a Johnson claim. See

Beeman, 871 F.3d at 1221.

      We disagree with the government that French’s motion failed to raise a

Johnson claim because he did not explicitly assert that his sentence was based on

the residual clause.   The government essentially faults French for failing to


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conform his § 2255 motion to Beeman. But Beeman was not decided until well

after he filed for collateral relief. And, before Beeman, the showing required for a

Johnson claim in a § 2255 motion was in dispute. Compare In re Moore, 830 F.3d

1268, 1273 (11th Cir. 2016), with In re Chance, 831 F.3d 1335, 1339 (11th Cir.

2016). More broadly, French’s failure to expressly invoke the residual clause as

the basis for his sentence is not fatal because his motion considered as a whole,

with its repeated references to Johnson, is reasonably read to advocate that he was

sentenced under the residual clause.

      We therefore conclude that French’s motion was timely because he raised a

Johnson claim. That does not end our inquiry, however. In Beeman, after the

panel held that the district court erred in finding the motion untimely, it evaluated

the merits of the Johnson claim because Beeman said the factual record was

sufficient to decide his claim. See Beeman, 871 F.3d at 1221. French makes no

similar assertion here.    Instead, he asks that we reverse the district court’s

untimeliness ruling and remand for the court to address the merits of his claim.

      The district court did make a finding that French’s prior offenses still qualify

as ACCA predicate offenses after Johnson. However, the Sixth Circuit decision

the court relied on, United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015), has

since been abrogated by the court sitting en banc. United States v. Stitt, 860 F.3d

854 (6th Cir. 2017) (en banc) (holding that the Tennessee aggravated burglary


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statute is broader than the definition of generic burglary and does not qualify as an

ACCA predicate offense).

      More importantly, the district court did not have an opportunity to apply the

new standard articulated by Beeman, which requires a petitioner to show it is more

likely than not that he was sentenced solely under the residual clause, Beeman, 871

F.3d at 1221–22, which the panel explained is “a historical fact.” Id. at 1224 n.5.

If French cannot make this showing, he is not entitled to relief even though his

predicate convictions no longer qualify as violent felonies under current precedent.

See id. at 1224–25 & n.5.

      Because Beeman was decided after the district court ruled on French’s

petition, the parties had no occasion to address its impact and the court did not

make the finding of “historical fact” on which French’s Johnson claim depends.

See id.   We therefore find that a remand is appropriate, notwithstanding the

government’s claim that French cannot carry his burden under Beeman.              See

Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1203 (11th Cir. 2015)

(remanding after this Court adopted a new legal test “[t]o allow the district court to

apply this test in the first instance and, if the district court desires, to give the

parties an opportunity to further develop the record to address the components of

the test”); see also Whatley v. Warden, Ware State Prison, 802 F.2d 1205, 1213

(11th Cir. 2015) (“[W]e are a court of appeals. We do not make fact findings. We


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review them for clear error.”). On remand, the district court should consider in the

first instance whether French can show, as a historical fact, that he was more likely

than not sentenced under the residual clause. See Beeman, 871 F.3d at 1221–22.

      VACATED AND REMANDED.




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