United States v. Hubert, 031919 FED11, 16-10874

Docket Nº:16-10874
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL ST. HUBERT, Defendant-Appellant.
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges. TJOFLAT, Circuit Judge, joined by ED CARNES, Chief Judge, and WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges, concurring in the denial of rehearing ...
Case Date:March 19, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL ST. HUBERT, Defendant-Appellant.

No. 16-10874

United States Court of Appeals, Eleventh Circuit

March 19, 2019

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20621-FAM-1

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

BY THE COURT:

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.

TJOFLAT, Circuit Judge, joined by ED CARNES, Chief Judge, and WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges, concurring in the denial of rehearing en banc.

Two dissents-those by Judges Wilson and Martin-have seized upon this direct appeal case as an opportunity to criticize our Court's processing and publishing of orders on federal prisoners' applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.

These two dissents focus on only prisoners' post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners' applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.

Third, to correct the record about our Court's published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn't (nor has there ever been) any crisis about our Court's published orders.

I. INSTANT CASE IS DIRECT CRIMINAL APPEAL

Let's start with what type of proceeding the instant case is and is not. This criminal case is a direct appeal, wherein the appellant-defendant St. Hubert challenges his two federal firearm convictions under 18 U.S.C. § 924(c). St. Hubert has never disputed that he had and brandished a firearm while robbing an AutoZone store on January 21, 2015, and while attempting to rob another AutoZone store on January 27, 2015. United States v. St. Hubert, 909 F.3d 335, 338-40 (11th Cir. 2018).

Rather, St. Hubert contends that his admitted Hobbs Act robbery crimes do not qualify as predicate "crimes of violence" under § 924(c)(3)'s definitions. Id. at 340. After briefing and oral argument, a panel of this Court affirmed St. Hubert's firearm convictions, concluding his predicate armed robbery offenses qualify as crimes of violence under § 924(c)(3)'s residual and elements clauses. See id. at 344-53. In affirming, the St. Hubert panel followed, in part, this Court's binding precedent in In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016), which held that Hobbs Act robbery qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(A)'s elements clause. St. Hubert, 909 F.3d at 345-46.

In doing so, our St. Hubert panel pointed out that five other circuits, like our In re Saint Fleur published order, had held that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A)'s elements clause. United States v. Barrett, 903 F.3d 166, 174 (2d Cir. 2018), petition for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States v. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 139 S.Ct. 494 (2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch, 850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S.Ct. 2230 (2017); United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S.Ct. 2228 (2017). Since that time, two other circuits have held the same. United States v. Bowens, 907 F.3d 347, 353-54 (5th Cir. 2018), petition for cert. filed, No. 18-7612 (U.S. Jan. 28, 2019); United States v. Garcia-Ortiz, 904 F.3d 102, 106-09 (1st Cir. 2018), petition for cert. filed, No. 18-7176 (U.S. Dec. 27, 2018). As to Hobbs Act robbery, our Court is simply not an outlier.

In addition to direct appeals like this case, a federal prisoner has a second post-conviction opportunity to challenge his sentence by timely filing an initial § 2255 motion in the district court. Section 2255(a) provides: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). If the district court denies the initial § 2255 motion, the federal prisoner may directly appeal that ruling to this Court. Id. § 2255(d).

In short, as important factual context, the dissents do not address, or complain about, direct appeals or initial § 2255 motions, whereby a federal prisoner already has had two post-conviction opportunities to challenge his sentence. Rather, the dissents ignore those two avenues of redress and are using this direct-appeal case as a vehicle to write about only a third type of post-conviction proceeding: a federal prisoner's application to file a second or successive § 2255 motion pursuant to § 2255(h). I therefore turn to § 2255(h), which restricts prisoners' applications to file successive § 2255 motions.

II. PRISONERS' APPLICATIONS TO FILE SUCCESSIVE § 2255 MOTIONS

After a federal prisoner has used his two post-conviction opportunities to challenge his sentence (through a direct appeal and an initial § 2255 motion), Congress has narrowly and significantly limited the subsequent or successive times a federal prisoner can challenge his final sentence. 28 U.S.C. § 2255(h). In the § 2255(h) statute, Congress has restricted such successive post-conviction challenges to only two types of highly circumscribed claims: (1) claims based on "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) claims based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id.

Congress imposed these restrictions on successive § 2255 motions in order to achieve finality of federal criminal judgments and to stop an endless flow of post-conviction petitions by federal prisoners in the federal courts. See Gonzalez v. Sec'y for Dep't of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (en banc) ("The central purpose behind the [Antiterrorism and Effective Death Penalty Act ("AEDPA")] was to ensure greater finality of state and federal court judgments in criminal cases, and to that end its provisions greatly restrict the filing of second or successive petitions."); see also Williams v. Warden, 713 F.3d 1332, 1338 (11th Cir. 2013) ("Congress expressed its clear intent to impose a jurisdictional limitation on a federal court's ability to grant a habeas petitioner what is effectively a third bite at the apple after failing to obtain relief on direct appeal or in his first postconviction proceeding."); Gilbert v. United States, 640 F.3d 1293, 1311 (11th Cir. 2011) (en banc) ("The statutory bar against second or successive motions is one of the most important AEDPA safeguards for finality of judgment.").

Significantly here, Congress required all federal prisoners to get advance permission from a federal appellate court in order to even file a successive post-conviction § 2255 motion in a federal district court. 28 U.S.C. § 2255(h) ("A second or successive motion must be certified . . . by a panel of the appropriate court of appeals . . . ."). And Congress has...

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