In Re: Wayne Anderson, No. 16-14125 (11th Cir. 2016)Annotate this Case
Petitioner filed an application seeking an order authorizing the district court to consider a 28 U.S.C. 2255 second or successive motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. 2255(h) and 2244(b)(3)(A). Petitioner claims that the district court improperly sentenced him, in 1995, as a career offender under the then-mandatory Sentencing Guidelines, using the residual clause of U.S.S.G. 4B1.2. He argues that because the residual clauses in section 4B1.2 and the Armed Career Criminal Act (ACCA) are “identical,” Johnson v. United States also invalidated the Guidelines clause. The court concluded that petitioner's argument is foreclosed by the court's post-Johnson decisions in United States v. Matchett and In re Griffin. Because petitioner has failed to make a prima facie showing of the existence of either the grounds set forth in section 2255(h), the court denied the application. The court agreed that if the Supreme Court holds in Beckles v. United States that the section 4B1.2(a)(2) residual clause is unconstitutional, that decision will establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” If that happens, petitioner will be able to file a new application seeking certification to file a second or successive section 2255 motion based not on Johnson but on Beckles.