Beeman v. United States

• Decision Date: 14 August 2018
• Docket Number: No. 16-16710,16-16710
• Citation: 899 F.3d 1218 (Mem)
• Parties: Jeffrey Bernard BEEMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

899 F.3d 1218 (Mem)

Jeffrey Bernard BEEMAN, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 16-16710

United States Court of Appeals, Eleventh Circuit.

Filed August 14, 2018

W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Petitioner-Appellant.

Christopher Conrad Bly, John Andrew Horn, Jane Elizabeth McBath, Lawrence R. Sommerfeld, U.S. Attorney's Office, Atlanta, GA, for Respondent-Appellee.

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES^* , JILL PRYOR, NEWSOM and BRANCH, Circuit Judges.

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

JULIE CARNES, Circuit Judge, respecting the denial of rehearing en banc:

A majority of the Court has voted not to rehear en banc our decision in Beeman v. United States , 871 F.3d 1215 (11th Cir. 2017), in which the panel held that Beeman had failed to make the showing necessary to prevail on his 28 U.S.C. § 2255 motion for resentencing based on Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague, meaning that this clause cannot be used as the basis for imposing an enhanced sentence under the ACCA. As the movant, a § 2255 litigant has always been required to shoulder the burden of proving his claim. That being so, Beeman held that a § 2255 litigant who seeks to overturn his sentence on the ground that he was sentenced pursuant to the residual clause must actually prove that his sentence was based on that clause: a requirement that the panel majority thought to be rather obvious and unremarkable.

Dissenting as to the denial of en banc review of Beeman , Judge Martin, however, disagrees that a § 2255 litigant who raises a Johnson claim should be held to such a burden. Instead, our dissenting colleague seeks a new rule that would exempt Johnson § 2255 claimants from the standard that is applied to all other § 2255 litigants. As the author of the Beeman decision, I write in response to our dissenting colleague’s assertion that Beeman was wrongly decided.

I. Background

Following a search of his residence that uncovered, among other things, the presence of illegal drugs, drug paraphernalia, a rifle and pistol, and 31 rounds of ammunition, Jeffrey Beeman was convicted by a jury of cocaine possession with the intent to distribute and of being a felon in possession of a firearm and ammunition. The district court considered whether Beeman’s sentence as to the firearm and ammunition charges should be enhanced pursuant to the ACCA: a statute that calls for a sentence of at least fifteen years for a defendant convicted of an applicable firearms offense who has at least three prior qualifying felony convictions for drug trafficking offenses and/or violent felonies. Beeman potentially had three such convictions: two prior drug trafficking convictions and a prior violent felony conviction. The latter was a conviction for aggravated assault under Georgia law after Beeman, armed with a shotgun, shot a person named Parrish Mitchell. The district court concluded that this aggravated assault conviction constituted a violent felony and that the prior drug trafficking convictions likewise qualified as ACCA-predicate crimes. The court therefore sentenced Beeman pursuant to the ACCA. Beeman offered no objection.

Beeman likewise did not appeal his sentence, which had been imposed in 2009, albeit he unsuccessfully appealed his conviction, which became final in 2010. Nevertheless, almost six years later, in 2016, he filed a § 2255 motion claiming that the district court had erred when it counted the aggravated assault conviction as a violent felony and sentenced him pursuant to the ACCA. Accordingly, he asked that his ACCA-sentence be vacated.

The ACCA provides three ways by which a prior conviction can qualify as a violent felony, only two of which are relevant here: the elements clause and the residual clause. The elements clause defines as a violent felony a crime that has as an element the use, attempted use, or threatened use of physical force against the person of another. 18 U.S.C. § 924(e)(2)(B)(i). The residual clause defines a violent felony as a crime that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B)(ii). The presentence investigation report had recommended that a conviction for Georgia aggravated assault be considered a violent felony under the ACCA, but it did not specify on what clause or clauses that recommendation was based, nor did the district court so specify when it imposed sentence.

II. Beeman’s Descamps Claim is Untimely

As noted, only two of the three clauses defining a violent felony were potentially applicable to Beeman’s aggravated assault conviction: the elements clause and the residual clause. Accordingly, in his § 2255 motion, Beeman raised two separate claims in an effort to knock out each clause as a viable basis for characterizing the aggravated assault conviction as a violent felony: a Descamps claim challenging use of the elements clause and a Johnsonclaim challenging use of the residual clause. As to the former, he relied on the Supreme Court’s decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), in which the Supreme Court clarified, among other things, that the modified categorical approach cannot be used to classify a conviction as being for a violent felony if the underlying statute is indivisible. Relying on the Descamps decision, which was issued subsequent to his sentencing, Beeman contended that the elements clause can now no longer support the characterization of his aggravated assault conviction as a violent felony. From this proposition, he argued that any use by the district court of that clause when imposing his sentence was illegitimate, and thus his ACCA-sentence should be vacated.

Unfortunately for Beeman, his Descamps claim could not make it out of the starting gate because it was untimely. Holding that Beeman’s claim for relief under § 2255 was time-barred to the extent it sought relief pursuant to Descamps , the panel opinion explained that Beeman had filed his § 2255 motion over five years after his judgment of conviction became final—an event that typically triggers the start date for AEDPA’s one-year limitations period. See Beeman , 871 F.3d at 1220. This default limitations period may, however, be restarted and extended for a one-year period of time when the movant asserts a right that "has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). But Descamps "did not announce a new rule." Mays v. United States , 817 F.3d 728, 734 (11th Cir. 2016) (explaining that Descamps "merely clarified existing precedent"). Moreover, even had it done so, Beeman did not file his § 2255 motion within one year of Descamps ’s issuance in 2013.

In short, Beeman’s Descamps claim being untimely, he cannot challenge in a § 2255 motion the validity of the elements clause as a basis for classifying his aggravated assault conviction as a violent felony.

III. Beeman Failed to Prove His Johnson Claim

Without a timely Descamps claim, the only route to relief for Beeman was a successful Johnson claim. The panel opinion concluded that Beeman had asserted a timely Johnson claim by alleging that the residual clause was an improper basis for determining whether a putative predicate conviction constitutes a violent felony and by filing his § 2255 motion within one year after Johnson ’s issuance. Beeman , 871 F.3d at 1220–21. Unlike Descamps , the Johnson decision meets both requirements necessary to invoke a renewed limitations period under § 2255(f)(3) : (1) Johnson announced a new rule and (2) the Supreme Court made the rule retroactively applicable to cases on collateral review. See Welch v. United States , 578 U.S. ––––, ––––, 136 S.Ct. 1257, 1264–65, 1268, 194 L.Ed.2d 387 (2016).

Although Beeman properly asserted a Johnson claim, the panel opinion concluded that he ultimately failed to prove the central allegation of this claim: that the residual clause adversely impacted his sentence, which is an essential element of this particular § 2255 claim. That lapse was fatal. Beeman , 871 F.3d at 1221. In so holding, the panel began with the unremarkable principle that a § 2255 movant bears the burden of proof and persuasion as to the claims asserted in his § 2255 motion. Id. at 1221–22. Well-established by a long line of precedent cited in the panel’s decision, this principle protects finality interests that are "essential to the operation of our criminal justice system," Teague v. Lane , 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that are at the core of AEDPA. See Jones v. United States , 304 F.3d 1035, 1039 (11th Cir. 2002) ("A fundamental purpose for the AEDPA was to establish finality in post-conviction proceedings.").

In the context of a Johnson claim, meeting the burden of proof necessary to warrant relief under § 2255 means showing, by a preponderance of the evidence, that the residual clause in fact adversely affected the movant’s sentence. See In re Thomas , 823 F.3d 1345, 1348 (11th Cir. 2016). In order to do that, the movant must prove that—more likely than not—he was sentenced based solely on the residual clause. If the movant’s sentence was based also, or instead, on the elements or the enumerated offenses clause (neither of which were called into question by Johnson ), then one must necessarily conclude that the now-invalid residual clause...