In re Bradford

• Decision Date: 27 July 2016
• Docket Number: No. 16-14512-J,16-14512-J
• Citation: 830 F.3d 1273
• Parties: In re: Brad Bradley Bradford, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

830 F.3d 1273

In re: Brad Bradley Bradford, Petitioner.

No. 16-14512-J

United States Court of Appeals, Eleventh Circuit.

Date Filed: July 27, 2016

Jessica M. Lee, Christina Lee Hunt, Federal Public Defender's Office, Macon, GA, for Petitioner.

Brad Bradley Bradford, Edgefield, SC, Pro Se. Michael J. Moore, Michelle Lee Schieber, U.S. Attorney's Office, Macon, GA, for Successive Habeas Respondent United States of America.

Before TJOFLAT, HULL, and JULIE CARNES, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Brad Bradford has filed a counseled application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec'y, Dep't of Corr. , 485 F.3d 1351, 1357–58 (11th Cir.2007) (explaining that this Court's determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

In his counseled application, Bradford seeks to raise one claim in a second or successive § 2255 motion. He claims that the district court improperly sentenced him as a career offender under the advisory Sentencing Guidelines, using the residual clause of U.S.S.G. § 4B1.2(a)(2). Bradford asserts that his claim is based on a new rule of constitutional law, citing to Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which has been made retroactively applicable to cases on collateral review. See Welch v. United States, 578 U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). He also cites to the Supreme Court's grant of certiorari in Beckles v. United States , ––– U.S. ––––, 136 S.Ct. 2510, ––– L.Ed.2d ––––, 2016 WL 1029080 (2016), a case that raises the issue of whether Johnson applies to the residual clause in the Sentencing Guidelines. In addition, Bradford also filed a motion requesting that this Court hold his application in abeyance pending the Supreme Court's decision in Beckles.

I. BACKGROUND AND FIRST APPLICATION

Bradford is serving a 180-month sentence for possessing with intent to distribute cocaine. In 2008, the district court sentenced him as a § 4B1.1 career offender. The presentence investigation report, to which Bradford did not object, premised the enhancement on his prior Florida convictions for burglary (1991) and trafficking in cocaine (1995).

Bradford filed a direct appeal, but he challenged only his conviction, not his sentence. This Court affirmed his conviction in 2009. See United States v. Bradford , 341 Fed.Appx. 479 (11th Cir.2009). In 2010, Bradley filed his original § 2255 motion, in which he attacked his career offender designation. The district court denied the § 2255 motion on the merits and Bradley did not appeal.

On June 3, 2016, Bradford filed an application seeking certification to file a successive § 2255 motion that would raise a Johnson -based challenge to his sentence.

On July 1, 2016, we denied the application because Johnson does not apply to the advisory Sentencing Guidelines. See In re Bradford , No. 16-13237 (11th Cir. July 1, 2016) (unpublished) (following binding precedent in United States v. Matchett , 802 F.3d 1185 (11th Cir. 2015) ).

II. SECOND APPLICATION

As an initial matter, we deny Bradford 's counseled motion to hold this counseled application in abeyance due to the grant of certiorari in Beckles. “[G]rants of certiorari do not themselves change the law,” and “must not be used by courts” as a basis to grant relief that would otherwise be denied. See Schwab v. Sec'y, Dep't of Corr. , 507 F.3d 1297, 1298–99, 1302 (11th Cir.2007) (vacating a district court's order granting a stay of execution that was premised exclusively on a recent Supreme Court grant of certiorari ). A grant of certiorari in Beckles does not and cannot serve as a ground for granting an application to file a second or successive § 2255 motion. We explicitly hold that the grant of certiorari in Beckles cannot serve and does not serve to establish a prima facie case under § 2255(h)(2).

In addition, Congress has imposed on the courts of appeal a statutory requirement and obligation to rule no later than 30 days after the filing of the application to file a second or successive § 2255 motion. See 28 U.S.C. §§ 2244(b)(3)(D), 2255(h) ; In re Henry , 757 F.3d 1151, 1157 n. 9 (11th Cir. 2014). Section 2244(b)(3)(D) states, “The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” 28 U.S.C. § 2244(b)(3)(D). We must follow the unambiguous command of Congress and therefore cannot hold such applications in abeyance based on the grant of certiorari in Beckles.

We may also not consider Bradford's present Johnson claim for the simple reason that he raised that claim in his first application for certification, and § 2244(b) bars us from considering claims that were raised in prior applications. As we held in In re Baptiste , 828 F.3d 1337, 1339–40, 2016 WL 3752118, at *2 (11th Cir.2016), § 2244(b)(1) bars an applicant from filing applications “seek[ing] leave to file a second or successive habeas motion based on a claim we rejected in a previous application seeking such leave,” and § 2244(b)(3)(E) “bar[s] us from ... permitting a prisoner to file what amounts to a motion for reconsideration under the guise of a separate and purportedly ‘new’ application when the new application is the same as the old one.”

Some decisions from our Court following Baptiste as binding precedent have also included special concurrences or dissents suggesting that Baptiste may have been wrongly decided. The central theme of these separate opinions is their contention that § 2244(b)(1)'s prohibition of a repeat filing based on a claim previously rejected applies only to § 2254 petitions, not to § 2255 motions. Further, as this argument goes, even if § 2244(b)(1) does apply to § 2255 motions, it applies only to claims actually raised in a § 2255 motion in the district court, not claims repeatedly raised in applications for certification by this Court to file a successive § 2255 motion. See In re Anderson , 829 F.3d 1290, 1294–97, 2016 WL 3947746, at *4–5 (11th Cir.2016) ; see also In re Clayton , 829 F.3d 1254, 1266, 2016 WL 3878156, at *9 (11th Cir.2016). Yet, as cogently and persuasively explained in Baptiste, the above argument fails on both counts. See Baptiste , 2016 WL 3752118, at *2.

All we can add to that explanation is to point out that Baptiste 's holding that § 2244(b) bars repetitious § 2255 motions is entirely consistent with the text of the habeas statute, which expressly tells us to incorporate the certification provisions of § 2244 that are contained in § 2244(b). See 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals....”) (emphasis added); see also id. § 2244(b) (laying out the certification provisions in order to obtain permission to file a second or successive § 2254 petition or § 2255 motion).

In fact, our pre-Baptiste published decisions have consistently reflected the principle that § 2255(h) incorporates the whole range of procedures and limitations set out in § 2244(b)(1), (b)(3), and (b)(4).¹ We have repeatedly held that § 2255(h) incorporates the requirement in § 2244(b)(3)(A) that an applicant must obtain authorization from this Court in order to file a successive § 2255 motion. See, e.g. , Boyd v. United States , 754 F.3d 1298, 1301 (11th Cir.2014) ; Farris v. United States , 333 F.3d 1211, 1216 (11th Cir.2003) ; United States v. Garcia , 181 F.3d 1274, 1275 (11th Cir.1999). We have also held that § 2255(h) incorporates the requirement in § 2244(b)(3)(B) that a three-judge panel of the court must consider applications for such certification. In re Blackshire , 98 F.3d 1293, 1293 (11th Cir.1996). Likewise incorporated is § 2244(b)(3)(C), which requires the applicant to make a prima facie showing that the application satisfies the other requirements contained in § 2244(b). In re Pinder , 824 F.3d 977, 978, 2016 WL 3081954, at *1 (11th Cir.2016) ; In re Starks , 809 F.3d 1211, 1212 (11th Cir.2016) ; In re Morgan , 713 F.3d 1365, 1366 (11th Cir.2013) ; In re Dean , 375 F.3d 1287, 1288 (11th Cir.2004). As to § 2244(b)(3)(D), we have repeatedly held that this Court must, when possible, comply with that sub-section's 30-day time limit. In re Adams , 825 F.3d 1283, 1285–86, 2016 WL 3269704, at *3 (11th Cir.2016) ; In re Henry , 757 F.3d 1151, 1157 n. 9 (11th Cir.2014). Further, in the context of applications to file successive § 2255 motions, we have adopted Jordan , 485 F.3d at 1358, which held that § 2244(b)(4) requires a district court to dismiss a claim that this Court has authorized him to file if that claim fails to satisfy the requirements of § 2244. In re Davis , Nos. 16-13779 & 16-14615, mem. op. at 5; In re Moss , 703 F.3d 1301, 1303 (11th Cir.2013).

Finally, this Court has repeatedly (and correctly) read § 2255(h) to incorporate the § 2244(b)(3)(E) bar on petitions for rehearing. See, e.g. , In re McCall , 826 F.3d 1308,...