In re Chance

• Decision Date: 02 August 2016
• Docket Number: Nos. 16-13918-J,16-14643-J,s. 16-13918-J
• Citation: 831 F.3d 1335
• Parties: In re: Devon Chance, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

831 F.3d 1335

In re: Devon Chance, Petitioner.

Nos. 16-13918-J

16-14643-J

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 2, 2016

Devon Chance, Bruceton Mills, WV, Pro Se.

Michael G. Smith, The Law Offices of Michael G. Smith, Fort Lauderdale, FL, for Petitioner.

Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Successive Habeas Respondent.

Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.

JILL PRYOR, Circuit Judge:

Devon Chance seeks authorization to file a 28 U.S.C. § 2255 motion based on Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Because Mr. Chance already filed one § 2255 motion, his new motion must be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”¹

28 U.S.C. § 2255(h)(2). “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).

Mr. Chance was sentenced under 18 U.S.C. § 924(c), which requires a longer prison sentence whenever a defendant uses a firearm during a “crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The statute provides more than one definition of “crime of violence,” including a felony “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.” Id. § 924(c)(3)(B). Mr. Chance contends this definition, the so-called “residual clause” of § 924(c),² is unconstitutional in light of Johnson, which held that the phrase “involves conduct that presents a serious potential risk of physical injury to another”—the “residual clause” in 18 U.S.C. § 924(e)(2)(B)(ii) —is unconstitutionally vague.

Recently, we ruled that Johnson 's holding may invalidate the “very similar” § 924(c)(3)(B) residual clause. See In re Pinder , 824 F.3d 977, 978 (11th Cir.2016). At the same time, we recognized that the “law is unsettled” on this question and left it to the district court to decide in the first instance what effect Johnson had on § 924(c)'s residual clause. Id. Pinder involved a § 924(c) sentence that was based on the companion conviction of conspiracy to commit Hobbs Act robbery.

I.

Mr. Chance was, like Mr. Pinder, convicted of conspiracy to commit Hobbs Act robbery (Count 1). This conviction served as a companion to a conviction for conspiracy to possess a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(o) (Count 2). Mr. Chance was also convicted of six counts of substantive Hobbs Act robbery (Counts 26, 28, 30, 32, 34, and 36), accompanied by six counts of possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Counts 25, 27, 29, 31, 33, and 35). The sentencing court imposed a total sentence of 1,794 months' imprisonment.

After we decided that conspiracy to commit Hobbs Act robbery might not qualify as a valid companion conviction to a § 924(c) conviction after Johnson, we held that the substantive offense of Hobbs Act robbery still qualifies as a valid companion conviction notwithstanding Johnson. See In re Saint Fleur , 824 F.3d 1337, 1340–42, 2016 WL 3190539, at *3–4 (11th Cir.2016). The Saint Fleur panel noted the indictment charged that Mr. Saint Fleur committed Hobbs Act robbery as defined in 18 U.S.C. § 1951(b)(1) and did so “by means of actual and threatened force, violence, and fear of injury,” which satisfied § 924(c)'s elements clause. Id. at 1340. As to the Hobbs Act robberies and corresponding § 924(c) convictions in Counts 25 through 36, here, as in Saint Fleur, Mr. Chance's indictment stated that he committed robbery as defined in 18 U.S.C. § 1951(b)(1), “by means of actual and threatened force, violence, and fear of injury.” Thus, as in Saint Fleur, Mr. Chance's companion convictions for Hobbs Act robbery still qualify as crimes of violence and support his § 924(c) convictions in Counts 25, 27, 29, 31, 33, and 35. See In re Gordon , 827 F.3d 1289, 1294, 2016 WL 3648472, at *4 (11th Cir.2016) (concluding that this Court's decision in Saint Fleur did not conflict with its decision in Pinder ).

Pinder, however, governs Mr. Chance's § 924(o) conspiracy to possess a firearm during and in relation to a crime of violence conviction because its companion conviction was conspiracy to commit Hobbs Act robbery. Under Pinder, Mr. Chance's Count 1 conviction for conspiracy to commit Hobbs Act robbery may no longer be a valid companion to his Count 2 conviction in light of Johnson. He therefore has made a prima facie showing that his request to file a § 2255 motion satisfies § 2255(h) as to his Count 2 conviction.

Mr. Chance's 1,794-month sentence consisted of concurrent 210-month sentences on Counts 1 and 2, as well as the other substantive Hobbs Act robbery convictions; an 84-month sentence on one of the § 924(c) convictions (Count 26), to be served consecutively; and 300-month sentences on Counts 28, 30, 32, 34, and 36 (the other § 924(c) convictions), to be served consecutively to each other and to all other sentences. But “the sentences on [Counts 1, 2, 25, 27, 29, 31, 33, and 35] were not in fact fully concurrent.” Pinkus v. United States , 436 U.S. 293, 304, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978). That is because, although the terms of imprisonment were concurrent, “the $[1]00 fines on each of the counts were cumulative, totaling $[800], so that a separate fine of $[1]00 was imposed on” both Count 1 and Count 2. Id. at 304–05, 98 S.Ct. 1808. With an additional $100 fine for the other counts (with consecutive terms of imprisonment), Mr. Chance's total fine was $1400. “Petitioner thus had at least a pecuniary interest in securing review of his conviction on each of the counts.” Id. Thus, this case is unlike In re Williams , 826 F.3d 1351, 2016 WL 3460899 (11th Cir.2016), in which this Court recently relied on a “'rule of judicial convenience,”' the concurrent sentence doctrine, Benton v. Maryland , 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), to deny a request to file a § 2255 motion based on Johnson even though the applicant had made the requisite prima facie showing under § 2255(h).³ Accordingly, we grant Mr. Chance's request for authorization.

As usual, nothing about our ruling here binds the district court, which must decide every aspect of the case “fresh, or in the legal vernacular, de novo. ” Jordan v. Sec'y, Dep't of Corr. , 485 F.3d 1351, 1358 (11th Cir.2007). “And when we say every aspect, we mean every aspect.” In re Jackson , 826 F3d. 1343, 1351, 2016 WL 3457659, at *6 (11th Cir.2016). This includes the merits of Mr. Chance's motion, along with any other issues that may arise.

II.

Although our published opinions repeatedly have emphasized that the district court is to consider Mr. Chance's § 2255 motion de novo , in the whirl of orders addressing Johnson, a recent published order from this Court discussed in dicta what districts courts purportedly “must” do in adjudicating Johnson claims in § 2255(h) motions. In re Moore , 830 F.3d 1268, 1271–73, 2016 WL 4010433, at *3–4 (11th Cir.2016). Like we have here, the Moore panel acknowledged that “the district court is to decide the § 2255(h) issues fresh, or in the legal vernacular, de novo. ” Id. at *3 (internal quotation marks omitted and alteration adopted). But in the very next sentence, the Moore panel seemed to contradict that instruction by telling the district court that it “must decide whether or not Moore was sentenced under the residual clause in 2000.”⁴ Id. The panel then added “one further thought,” also in the form of a command about what the district court can and cannot do: that “the district court cannot grant relief in a § 2255 proceeding unless the movant ... proves that he was sentenced using the residual clause.” Id. at *4.

The Moore panel phrased its commentary in terms of what courts “must” and “cannot” do, but that commentary undoubtedly is dicta. The Moore panel acknowledged as much with its preceding quote from Jordan. See id. at 1273. Critically, when an inmate asks a court of appeals to certify a second or successive § 2255 motion, § 2255(h) is our sole source of authority to do or say anything in the case. That means any discussion of topics beyond “the § 2255(h) issues” is irrelevant to a case and therefore dicta. Id. (internal quotation marks omitted); see Edwards v. Prime, Inc. , 602 F.3d 1276, 1298 (11th Cir.2010) ; see also United States v. Hunter , 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) (“The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.”).

Indeed, Moore 's discussion of what the district court must do followed its case-dispositive conclusion that Mr. Moore made a prima facie showing. That subsequent dicta does not bind either the district court, see Jordan , 485 F.3d at 1358, or a merits panel if an appeal is filed. As our Chief Judge recently said about another order certifying a Johnson motion: “[s]hould an appeal be filed from the district court's determination, nothing in this order shall bind the merits panel in the appeal. Nothing.” In re Gomez , 830 F.3d 1225, 1229, 2016 WL 3971720, at *4 (11th Cir.2016) (Carnes, C.J., concurring) (internal quotation marks and citation omitted).

Not only is Moore' s dicta just that—dicta—but it also seems quite wrong. Of course, we recognize that what we are about to say has no more legal force than the Moore panel's commentary (that is: none). But we also appreciate the challenging task that district courts in our circuit face in dealing with Johnson issues, with...