Douglas Young v. USA, No. 19-14304 (11th Cir. 2021)

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USCA11 Case: 19-14304 Date Filed: 02/16/2021 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14304 Non-Argument Calendar ________________________ D.C. Docket Nos. 1:19-cv-23381-UU; 1:11-cr-20700-UU-2 DOUGLAS YOUNG, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (February 16, 2021) Before WILSON, MARTIN, and BRANCH, Circuit Judges. PER CURIAM: USCA11 Case: 19-14304 Date Filed: 02/16/2021 Page: 2 of 4 Douglas Young, a federal prisoner proceeding pro se, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion for lack of jurisdiction on the ground that it was an impermissibly second or successive motion. In that motion, Young argued that his 18 U.S.C. § 924(c) conviction is invalid in light of United States v. Davis, 139 S. Ct. 2319 (2019). 1 The government moves for summary affirmance, arguing that the district court properly dismissed Young’s § 2255 motion because Young had filed previously an initial § 2255 motion which was denied, and he did not have authorization from this Court to file a second or successive § 2255 motion. Summary disposition is appropriate either where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). “We review de novo the district court’s dismissal of a 28 U.S.C. § 2255 motion as second or successive.” McIver v. United States, 307 F.3d 1327, 1329 In Davis, the Supreme Court extended its holdings in Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) to 18 U.S.C. § 924(c) and held that § 924(c)(3)(B)’s residual clause, like the residual clauses in 18 U.S.C. § 924(e)(2)(B) and 18 U.S.C. § 16(b), is unconstitutionally vague. Davis, 139 S. Ct. at 2324–25, 2336. Thereafter, we held that Davis announced a new rule of constitutional law within the meaning of § 2255(h)(2) and was retroactively applicable. See In re Hammoud, 931 F.3d 1032, 1038–39 (11th Cir. 2019). 1 2 USCA11 Case: 19-14304 Date Filed: 02/16/2021 Page: 3 of 4 (11th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that, before a movant may file a second or successive § 2255 motion, he first must obtain an order from the court of appeals authorizing the district court to consider the motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Absent authorization from this Court, the district court lacks jurisdiction to consider a second or successive motion to vacate sentence. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). Young pleaded guilty in 2011 to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and using or carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Young filed his initial § 2255 motion in April 2019, which was ultimately dismissed as time-barred. Thereafter, Young sought permission in this Court to file a second or successive § 2255 motion, challenging his § 924(c) conviction based on Davis. We denied Young’s application, concluding that he could not make a prima facie showing that his § 924(c) conviction was unconstitutional under Davis because it was independently supported by the substantive offense of Hobbs Act robbery, which remained a qualifying offense under § 924(c)’s elements clause. Meanwhile, Young filed the underlying § 2255 motion in the district court that is the subject of this appeal. Young did not have the required authorization from this Court to file a second or successive § 2255 motion. See 28 U.S.C. 3 USCA11 Case: 19-14304 Date Filed: 02/16/2021 Page: 4 of 4 § 2244(b)(3)(A). Therefore, the district court lacked jurisdiction to consider Young’s motion. See id.; Farris, 333 F.3d at 1216. Accordingly, because there is no substantial question that the district court correctly dismissed Young’s successive § 2255 motion for lack of jurisdiction, we GRANT the government’s motion for summary affirmance. See Groendyke Transp., Inc., 406 F.2d at 1162. 4

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