In re Hammoud, 19-12458-G

• Citation: 931 F.3d 1032
• Decision Date: 23 July 2019
• Docket Number: No. 19-12458-G,19-12458-G
• Parties: IN RE: Wissam T. HAMMOUD, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

931 F.3d 1032

IN RE: Wissam T. HAMMOUD, Petitioner.

No. 19-12458-G

United States Court of Appeals, Eleventh Circuit.

Date Filed: July 23, 2019

931 F.3d 1035

Wissam Taysir Hammoud, Pro Se.

U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, for Successive Habeas Respondent.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

Before: WILLIAM PRYOR, JORDAN and HULL, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Wissam T. Hammoud has filed an 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 one of the following two circumstances:

(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 Corrs. , 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).

931 F.3d 1036

I. BACKGROUND

In 2004, Hammoud was charged by a federal grand jury with various crimes in a 13-count superseding indictment. In 2005, pursuant to a written plea agreement, Hammoud pleaded guilty to these four counts: (1) retaliating against a witness, in violation of 18 U.S.C. § 1513 (Count 1); (2) solicitation to commit murder, in violation of 18 U.S.C. § 373 (Count 3); (3) use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 5); and (4) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 13). As to the § 924(c) firearm charge in Count 5, the plea agreement specified that Hammoud possessed a firearm during the solicitation crime charged in Count 3. The district court dismissed the remaining nine counts and sentenced Hammoud to a total imprisonment term of 240 months, consisting of (1) concurrent 180-month sentences as to Counts 1 (retaliation) and 3 (solicitation); (2) a concurrent 120-month sentence as to Count 13 (felon in possession); and (3) a consecutive 60-month sentence as to Count 5 (the § 924(c) offense).

In 2006, Hammoud filed a direct appeal challenging his guilty pleas as to Counts 1 and 13 and his total sentence. See United States v. Hammoud , 229 F. App'x 869, 871 (11th Cir. 2007). On appeal, this Court affirmed Hammoud’s convictions and dismissed his sentencing claim based on the sentence appeal waiver provision in his plea agreement. Id. at 877. In 2008, Hammoud filed his original § 2255 motion to vacate, set aside, or correct his sentence raising a single ineffective assistance of trial counsel claim, which the district court denied on the merits.

In 2018, Hammoud filed an application for leave to file a second or successive § 2255 motion with this Court, arguing, among other things, that § 924(c)(3)(B) was unconstitutional, in light of the new rule of constitutional law announced in Johnson v. United States , 576 U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , 584 U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), which held, respectively, that the residual clauses in the Armed Career Criminal Act ("ACCA") and 18 U.S.C. § 16(b) were unconstitutionally vague. We denied Hammoud’s 2018 application on the merits because, under our then-binding precedent in Ovalles v. United States ("Ovalles II") , 905 F.3d 1231, 1253 (11th Cir. 2018) (en banc), abrogated by United States v. Davis , 588 U.S. ––––, 139 S. Ct. 2319, ––– L.Ed.2d –––– (2019), and In re Garrett , 908 F.3d 686, 689 (11th Cir. 2018), abrogated in part by Davis , 588 U.S. ––––, 139 S. Ct. 2319, neither Johnson nor Dimaya could support a vagueness-based challenge to § 924(c)(3)(B).

II. DISCUSSION

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid. Specifically, Hammoud asserts that § 924(c)(3)(B) ’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis , Dimaya , and Johnson , and that his companion solicitation conviction in Count 3 could have qualified as a "crime of violence" only under § 924(c) ’s now-defunct residual clause.¹

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced

931 F.3d 1037

a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste , 828 F.3d 1337 (11th Cir. 2016). Only after addressing these issues may we consider the merits of Hammoud’s claim.

A. New Rule of Constitutional Law

Briefly, in Davis , decided on June 24, 2019, the Supreme Court extended its holdings in Johnson and Dimaya to § 924(c) and held that § 924(c)(3)(B) ’s residual clause, like the residual clauses in the ACCA and § 16(b), is unconstitutionally vague. Davis , 588 U.S. at ––––, 139 S. Ct. at 2336. In doing so, the Supreme Court resolved a circuit split, rejecting the position (advocated for by the government in Davis and adopted by this Court and two other federal circuit courts) that § 924(c)(3)(B) ’s residual clause could be saved from unconstitutionality if read to encompass a conduct-specific, rather than a categorical, approach. See id. at ––––, ––––, 139 S. Ct. at 2325 & n.2, 2332-33. The Davis Court emphasized that there was no "material difference" between the language or scope of § 924(c)(3)(B) and the residual clauses invalidated in Johnson and Dimaya , and therefore concluded that § 924(c)(3)(B) ’s residual clause must suffer the same fate. See id. at ––––, ––––, 139 S. Ct. at 2326, 2336.

The first question we must answer here is whether Davis announced a new rule of constitutional law. A "new rule of constitutional law," 28 U.S.C. § 2255(h)(2), applies retroactively to criminal cases that became final before the rule was announced only if that rule falls within one of two narrow exceptions: (1) "[n]ew substantive rules"; or (2) "a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Schriro v. Summerlin , 542 U.S. 348, 351-52, 124 S. Ct. 2519, 2522-23, 159 L.Ed.2d 442 (2004) (internal quotations and emphasis omitted); see also Teague v. Lane , 489 U.S. 288, 307-10, 109 S. Ct. 1060, 1073-75, 103 L.Ed.2d 334 (1989) (plurality opinion). The first exception, new substantive rules, includes "decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish." Schriro , 542 U.S. at 351-52, 124 S. Ct. at 2522 (internal citations omitted). The first exception limits the application of new substantive constitutional rules to those that "necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him." Id. at 352, 124 S. Ct. at 2522-23 (internal quotations omitted); see also Teague , 489 U.S. at 311, 109 S. Ct. at 1075 (explaining that a new substantive rule applies retroactively if it "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" (internal quotations and citation omitted)).

...