In Re: Wissam Hammoud, No. 19-12458 (11th Cir. 2019)
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The Eleventh Circuit granted petitioner's application for leave to file a second or successive motion under 28 U.S.C. 2255 as to his Davis claim challenging his 18 U.S.C. 924(c) firearm conviction in Count 5. The court held that United States v. Davis announced a new substantive rule that applies retroactively to successive section 2255 movants like petitioner, and that Davis was not barred under the court's precedent in In re Baptiste.
The court held that neither the Supreme Court nor this court has addressed whether "solicitation" of another to commit murder, in violation of 18 U.S.C. 373, qualifies as a crime of violence under only the residual clause or the elements clause or both clauses of section 924(c)(3). Therefore, petitioner has made a prima facie showing that his section 924(c) conviction in Count 5 may implicate section 924(c)'s residual clause and Davis.
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