Christopher French v. USA, No. 16-15782 (11th Cir. 2018)

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Case: 16-15782 Date Filed: 05/03/2018 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-15782 Non-Argument Calendar ________________________ D.C. Docket Nos. 8:15-cv-02467-JSM-MAP; 8:09-cr-00434-JSM-MAP-1 CHRISTOPHER FRENCH, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (May 3, 2018) Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges. PER CURIAM: Case: 16-15782 Date Filed: 05/03/2018 Page: 2 of 9 Christopher French, a federal prisoner proceeding pro se, appeals the dismissal of his motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. We granted a certificate of appealability (“COA”) on the issue of whether the district court erred in dismissing as time-barred French’s claim that he no longer qualifies as an armed career criminal after the Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2251 (2015). French argues that the district court erred because his Johnson-based motion was timely under 28 U.S.C. § 2255(f)(3). We agree, and we vacate and remand. I. On January 12, 2010, the district court accepted French’s plea of guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A few months later, French was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to the mandatory minimum sentence of fifteen years of imprisonment. The ACCA requires a prison sentence of no less than fifteen years when a defendant who violates § 922(g) has three or more prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” to include any crime that “involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). This part of the violent-felony definition is known as the “residual clause.” See Mays v. 2 Case: 16-15782 Date Filed: 05/03/2018 Page: 3 of 9 United States, 817 F.3d 728, 730–31 (11th Cir. 2016). The remaining portions of the violent-felony definition are known as the “enumerated clause” and the “elements clause.” Id. at 731. French’s ACCA sentence was based on four prior convictions for aggravated burglary in Tennessee. See Tenn. Code § 39-14-403. French’s presentence investigation report (“PSR”) designated these convictions as “violent felonies” but did not indicate under which ACCA clause they qualified. Likewise, the district court at sentencing did not indicate upon which clause the ACCA sentence was based. French did not pursue a direct appeal. On June 26, 2015, the Supreme Court issued the Johnson decision, which held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The Supreme Court went on to hold that Johnson is retroactively applicable to cases on collateral review. Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016). On October 19, 2015, French filed a pro se motion to correct his sentence under 28 U.S.C. § 2255. He argued that his ACCA sentence was invalid in light of Johnson and that he “no longer has the qualifying predicates needed to uphold his sentence.” He contended that, after Johnson, his convictions for aggravated burglary no longer qualified as ACCA predicate offenses. In an attached memorandum, he argued that his prior convictions could not be used to enhance 3 Case: 16-15782 Date Filed: 05/03/2018 Page: 4 of 9 his sentence because they did not qualify under either the enumerated clause or the elements clause. And he asserted that his § 2255 motion was timely because it was filed within one year of Johnson. The district court dismissed French’s § 2255 motion, finding that it was not timely because it was not actually based on Johnson. The court determined that Johnson did not affect French’s sentence because his Tennessee convictions for aggravated burglary qualified as ACCA predicates under the “enumerated clause,” citing a Sixth Circuit decision issued after French was sentenced in 2010. French appealed, and this Court granted a COA on the question of whether the district court erred in dismissing French’s § 2255 motion as time-barred. II. A district court’s determination that a § 2255 motion is time-barred is reviewed de novo. Drury v. United States, 507 F.3d 1295, 1296 (11th Cir. 2007). We liberally construe the filings of pro se parties. Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000). A § 2255 motion is timely if it is filed within one year of the latest of four possible triggering dates. 28 U.S.C. § 2255(f). The triggering date relevant to this case is “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3). It is 4 Case: 16-15782 Date Filed: 05/03/2018 Page: 5 of 9 undisputed that Johnson constituted a newly recognized right that has been made to apply retroactively on collateral review. See Welch, 136 S. Ct. at 1268. And French’s § 2255 motion was clearly filed within a year of Johnson. After the district court’s decision in this case, and while French’s appeal was pending, a panel of this Court decided Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). Beeman involved a § 2255 motion that purported to rely on Johnson but was dismissed because the district court found it was actually based on Descamps v. United States, 570 U.S. 254 (2013). Beeman, 871 F.3d at 1218– 19. The Beeman panel clarified that a claim based on Descamps would not trigger the one-year limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on Johnson would. Id. at 1220. To distinguish between the two types of claims, the panel explained that “[a] Johnson claim contends that the defendant was sentenced as an armed career criminal under the residual clause, while a Descamps claim asserts that the defendant was incorrectly sentenced . . . under [the other] clause[s].” Id. The panel found that Beeman had raised a timely Johnson claim because he argued that his offense “historically qualified as an ACCA predicate under the ACCA’s residual clause,” and because he filed his motion just before the one-year anniversary of the Johnson decision. Id. at 1220–21 (alteration adopted). The panel then proceeded to consider the merits of the Johnson claim. Id. at 1221. 5 Case: 16-15782 Date Filed: 05/03/2018 Page: 6 of 9 III. Under § 2255(f)(3), French’s § 2255 motion was timely if he “assert[ed] a Johnson claim.” Id. at 1220. And he asserted a Johnson claim if he “contend[ed] that [he] was sentenced as an armed career criminal under the residual clause.” Id. We conclude that he did. In his § 2255 motion and a supporting memorandum, French made repeated references to Johnson and claimed that Johnson invalidated his ACCA sentence. He contended that, in light of Johnson, he “no longer has the qualifying predicates needed to uphold his sentence.” And he asserted that his ACCA sentence could not stand because his prior convictions for aggravated battery did not qualify under either the enumerated clause or the elements clause. Thus, French clearly asserted that Johnson affected whether or not he qualified as an armed career criminal, which, when liberally construed, we read as an assertion that he was sentenced based on the residual clause. See Mederos, 218 F.3d at 1254. Plus, French specifically asserted that his § 2255 motion was timely because it was filed within one year of Johnson, which demonstrates his desire to raise a Johnson claim. See Beeman, 871 F.3d at 1221. We disagree with the government that French’s motion failed to raise a Johnson claim because he did not explicitly assert that his sentence was based on the residual clause. The government essentially faults French for failing to 6 Case: 16-15782 Date Filed: 05/03/2018 Page: 7 of 9 conform his § 2255 motion to Beeman. But Beeman was not decided until well after he filed for collateral relief. And, before Beeman, the showing required for a Johnson claim in a § 2255 motion was in dispute. Compare In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016), with In re Chance, 831 F.3d 1335, 1339 (11th Cir. 2016). More broadly, French’s failure to expressly invoke the residual clause as the basis for his sentence is not fatal because his motion considered as a whole, with its repeated references to Johnson, is reasonably read to advocate that he was sentenced under the residual clause. We therefore conclude that French’s motion was timely because he raised a Johnson claim. That does not end our inquiry, however. In Beeman, after the panel held that the district court erred in finding the motion untimely, it evaluated the merits of the Johnson claim because Beeman said the factual record was sufficient to decide his claim. See Beeman, 871 F.3d at 1221. French makes no similar assertion here. Instead, he asks that we reverse the district court’s untimeliness ruling and remand for the court to address the merits of his claim. The district court did make a finding that French’s prior offenses still qualify as ACCA predicate offenses after Johnson. However, the Sixth Circuit decision the court relied on, United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015), has since been abrogated by the court sitting en banc. United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (holding that the Tennessee aggravated burglary 7 Case: 16-15782 Date Filed: 05/03/2018 Page: 8 of 9 statute is broader than the definition of generic burglary and does not qualify as an ACCA predicate offense). More importantly, the district court did not have an opportunity to apply the new standard articulated by Beeman, which requires a petitioner to show it is more likely than not that he was sentenced solely under the residual clause, Beeman, 871 F.3d at 1221–22, which the panel explained is “a historical fact.” Id. at 1224 n.5. If French cannot make this showing, he is not entitled to relief even though his predicate convictions no longer qualify as violent felonies under current precedent. See id. at 1224–25 & n.5. Because Beeman was decided after the district court ruled on French’s petition, the parties had no occasion to address its impact and the court did not make the finding of “historical fact” on which French’s Johnson claim depends. See id. We therefore find that a remand is appropriate, notwithstanding the government’s claim that French cannot carry his burden under Beeman. See Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1203 (11th Cir. 2015) (remanding after this Court adopted a new legal test “[t]o allow the district court to apply this test in the first instance and, if the district court desires, to give the parties an opportunity to further develop the record to address the components of the test”); see also Whatley v. Warden, Ware State Prison, 802 F.2d 1205, 1213 (11th Cir. 2015) (“[W]e are a court of appeals. We do not make fact findings. We 8 Case: 16-15782 Date Filed: 05/03/2018 Page: 9 of 9 review them for clear error.”). On remand, the district court should consider in the first instance whether French can show, as a historical fact, that he was more likely than not sentenced under the residual clause. See Beeman, 871 F.3d at 1221–22. VACATED AND REMANDED. 9

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