In re. Morris Vernell Hires, Jr., No. 16-12744 (11th Cir. 2016)Annotate this Case
Petitioner 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. Petitioner asserts that his claim relies upon a new rule of law, citing Johnson v. United States, and argues that he was denied due process because the district court enhanced his sentence under the now-voided residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), and subjected him to a mandatory minimum 15-year sentence. The court held that it is not enough for a federal prisoner to simply cite Johnson as the basis for the claim or claims he seeks to raise in a second or successive section 2255 motion, but he also must show that he was sentenced, at least in part, under the residual clause and thus that he falls within the new substantive constitutional rule announced in Johnson. In this case, because petitioner's three prior ACCA predicate convictions qualified under the elements clause without regard to the ACCA’s residual clause, petitioner's application does not contain a prima facie claim that his sentence was based on the residual clause, or that his sentence falls within the scope of the substantive ruling in Johnson or that he will benefit from Johnson. Accordingly, the court denied the application.