In re: Anthony Johnson

Case: 16-10011 Date Filed: 01/20/2016 Page: 1 of 12

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-10011
________________________

IN RE: ANTHONY JOHNSON,
Petitioner.

__________________________

Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
_________________________

(January 20, 2016)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

MARTIN, Circuit Judge:

Anthony Johnson has filed a pro se application for authorization to file a

second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

federal sentence. We can authorize such a filing only if we certify that the second

or successive motion is based on either:

(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases
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on collateral review by the Supreme Court, that was previously
unavailable.

28 U.S.C. § 2255(h). It is Mr. Johnson’s duty to “make[] a prima facie showing

that the application satisfies the requirements of this subsection.” 28 U.S.C.

§ 2244(b)(3)(C).

Mr. Johnson’s application relies in part on Johnson v. United States, __ U.S.

__, 135 S. Ct. 2551 (2015). The Supreme Court recently granted certiorari in

Welch v. United States, No. 15-6418, 2016 WL 90594 (U.S. Jan. 8, 2016), to

decide “[w]hether Johnson v. United States, 135 S. Ct. 2551 (2015), announced a

new substantive rule of constitutional law that applies retroactively to cases that

are on collateral review.” Pet. for Writ of Cert. at i, Welch v. United States, No.

15-6418, 2015 WL 9666637 (U.S. Sept. 2, 2015). Because Mr. Johnson’s petition

raises the question that will be decided in Welch, we hold his case in abeyance

until the Supreme Court decides Welch.

We recognize that it will likely take the Supreme Court longer than 30 days

from now to decide Welch. This means that we may not rule on Mr. Johnson’s

application within the 30-day timeframe specified by 28 U.S.C. § 2244(b)(3)(D)

(“The court of appeals shall grant or deny the authorization to file a second or

successive application not later than 30 days after the filing of the motion.”). This

Court has never decided if this 30-day timeframe is mandatory. All eight of the
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Courts of Appeals that have decided this question in a published opinion have said

it is not. 1 We agree with those courts.

I.

We do not read the language of § 2244(b)(3)(D) to make the 30-day

timeframe mandatory. It’s true that the statute says a court “shall grant or deny”

applications like Mr. Johnson’s “not later than 30 days” after filing. But the statute

makes no provision for what happens when compliance with this timeline isn’t

practical. The law is well-established that “[a] statutory time period is not

mandatory unless it both expressly requires an agency or public official to act

within a particular time period and specifies a consequence for failure to comply

1
See Rodriguez v. Bay State Corr. Ctr., 139 F.3d 270, 272 (1st Cir. 1998); Word v. Lord,
648 F.3d 129, 129 n.1 (2d Cir. 2011) (per curiam) (“[W]here an issue requires a published
opinion that cannot reasonably be prepared in [] time [] we may exceed the thirty-day time
limit.” (quotation omitted)); In re Vial, 115 F.3d 1192, 1194 n.3 (4th Cir. 1997) (en banc) (noting
that “the importance of the issue presented justified” exceeding “the 30–day time limitation
established by 28 U.S.C.A. § 2244(b)(3)(D)”); In re Siggers, 132 F.3d 333, 334–35 (6th Cir.
1997) (“[F]ailure to comply with the thirty-day provision does not deprive this Court of the
power to grant or deny a motion under § 2244(b)(3)(A),” “[b]ecause the provision is hortatory or
advisory rather than mandatory.”); Gray-Bey v. United States, 201 F.3d 866, 867 (7th Cir. 2000)
(“We agree with our sister circuits . . . that the 30–day period may be extended for those few
cases which require reasoned adjudication and cannot be resolved within the statutory period.”);
Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) (“We agree with the majority of our
sister circuits and hold that when a § 2255(h) motion presents a complex issue, we may exceed
§ 2244(b)(3)(D)’s thirty-day time limit.”); Browning v. United States, 241 F.3d 1262, 1263 (10th
Cir. 2001) (“[W]e agree with other circuits that the time limit in section 2244(b)(3)(D) is
hortatory or advisory rather than mandatory.” (quotation omitted)).

The Third, Eighth, and D.C. Circuits do not appear to have ruled on this question. And
though the Fifth Circuit has said it is “statutorily required” to rule within 30 days, In re White,
602 F. App'x 954, 956 (5th Cir. 2015) (unpublished), it does not appear to have published an
opinion addressing the question.
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with the provision.” Fort Worth Nat. Corp. v. Fed. Sav. & Loan Ins. Corp., 469

F.2d 47, 58 (5th Cir. 1972)2 (emphasis added). See also Gray-Bey, 201 F.3d at

868 (noting that interpreting the 30-day timeframe as hortatory rather than

mandatory “reflects a reconciliation between the commands of legislation and the

exigencies of judicial decisionmaking that is well grounded in the law”).

The principle is especially compelling when a statutory timeframe is

directed at the judiciary. This kind of timeframe implicates a court’s power to hold

proceedings in abeyance, and “[a]n appellate court’s power to hold an order in

abeyance . . . has been described as ‘inherent,’ preserved in the grant of authority

to federal courts to ‘issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and principles of law,’ All

Writs Act, 28 U.S.C. § 1651(a).” Nken v. Holder, 556 U.S. 418, 426–27, 129 S.

Ct. 1749, 1756–57 (2009). “A reviewing court must bring considered judgment to

bear on the matter before it, but that cannot always be done quickly enough to

afford relief to the party aggrieved by the order under review. The choice for a

reviewing court should not be between justice on the fly or participation in what

may be an ‘idle ceremony.’” Id. at 427, 129 S. Ct. 1257. Here too, we see no

reason to perform the idle ceremony of answering a question that the Supreme

2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding all decisions of the Fifth Circuit handed down before October 1, 1981.
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Court plans to answer soon.

The rule that Congress must be explicit when it tries to restrict jurisdiction

based on a deadline is additionally important here because this is a habeas case. In

habeas cases, this rule finds further support in “the fact that equitable principles

have traditionally governed the substantive law of habeas corpus.” Holland v.

Florida, 560 U.S. 631, 646, 130 S. Ct. 2549, 2560, (2010) (quotation omitted).

That being the case, “we will not construe a statute to displace courts’ traditional

equitable authority absent the clearest command.” Id. (quotation omitted). See

also Schlup v. Delo, 513 U.S. 298, 319, 115 S. Ct. 851 (1995) (“[H]abeas corpus

is, at its core, an equitable remedy.”); Jones v. Cunningham, 371 U.S. 236, 243, 83

S. Ct. 373 (1963) (“[Habeas corpus] never has been a static, narrow, formalistic

remedy; its scope has grown to achieve its grand purpose”). Our traditional

equitable authority includes the power to make adjustments “that will avoid the

waste of a tentative decision as well as the friction of a premature constitutional

adjudication.” R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S. Ct.

643, 645 (1941).

Although the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) established certain procedural limits on the scope of habeas review

(including the gatekeeping procedure at issue in this case), it did so “without

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undermining basic habeas corpus principles and while seeking to harmonize the

new statute with prior law.” Holland, 560 U.S. at 649, 130 S. Ct. at 2562. See also

Slack v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1603 (“AEDPA’s present

provisions [] incorporate earlier habeas corpus principles.”). The Supreme Court

has told us that AEDPA’s “purposes, and the practical effects of our holdings,

should be considered when interpreting AEDPA. This is particularly so when

petitioners ‘run the risk’ under the proposed interpretation of ‘forever losing their

opportunity for any federal review.’” Panetti v. Quarterman, 551 U.S. 930, 945–

46, 127 S. Ct. 2842, 2854 (2007) (quoting Rhines v. Weber, 544 U.S. 269, 275,

125 S. Ct. 1528, 1533 (2005)).

There is another reason to join the view of the other Courts of Appeals on

this question: “when deciding which of two plausible statutory constructions to

adopt, a court must consider the necessary consequences of its choice. If one of

them would raise a multitude of constitutional problems, the other should prevail—

whether or not those constitutional problems pertain to the particular litigant before

the Court.” Clark v. Martinez, 543 U.S. 371, 380–81, 125 S. Ct. 716, 724 (2005).

Here, interpreting § 2244(b)(3)(D) as precluding a Court of Appeals from holding

a second or successive application in abeyance raises substantial constitutional

questions. Specifically, it may interfere with the judiciary’s ability to grant

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effective habeas relief, implicating both the Due Process Clause and the

Suspension Clause.

“Congress knows the difference between encouraging and mandating

specific conduct, and knows how to impose binding obligations on courts when it

wishes to do so.” Siggers, 132 F.3d at 336. Congress chose not to include

language in AEDPA that would have made the 30-day timeframe mandatory. And

“we resist[] an interpretation of the statute that would ‘produce troublesome

results,’ ‘create procedural anomalies,’ and ‘close our doors to a class of habeas

petitioners seeking review without any clear indication that such was Congress’

intent.’” Panetti, 551 U.S. at 946, 127 S. Ct. at 2854. We are thus convinced that

we have jurisdiction over Mr. Johnson’s application beyond § 2244(b)(3)(D)’s 30-

day timeframe. 3

II.

Our ruling today follows how we have long treated § 2244(b). This isn’t the

first time we have recognized that the § 2244(b)(3)(D) timeframe can be exceeded

3
The exact mechanism used to ensure time for proper consideration of a case can vary.
In Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), the Second Circuit dealt with the 30-
day timeframe “by denying the motion within thirty days’ and “then stay[ing] [the] mandate and
order[ing] briefing on the question of whether or not it was appropriate to reconsider that
decision.” Id. at 367. Of course, whether a court proceeds through the steps taken in Triestman
or the more straightforward one of simply holding a case in abeyance beyond the time limit, the
outcome is the same. Although we see no problem with the Triestman approach, we also don’t
believe that the statute requires it.
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when proper handling of a case requires more than 30 days. In the past, we have

scheduled briefing and oral argument beyond the 30-day timeframe. See In re

Davis, 565 F.3d 810 (11th Cir. 2009) (per curiam). Mr. Davis filed an application

to file a second or successive habeas petition on October 22, 2008. See CMS

Docket, In re Davis, No. 08-16009. The panel ordered briefing, entered a

conditional stay, allowed the filing of amicus briefs, and heard oral argument. Id.

The panel then denied the application six months after the original application had

been filed. Id. We expect that Mr. Johnson’s application will take less time than

that. All we need to know to rule here is whether the Supreme Court has made

Johnson retroactive to cases on collateral review. This is a yes-or-no question, and

Welch is unlikely to leave any doubt about the answer.

Our Court has also recognized our power to sua sponte order rehearing of an

application to file a second or successive § 2255 motion. See In re Lambrix, 776

F.3d 789, 794 (11th Cir. 2015) (per curiam). Rehearing under these circumstances

is likely to extend the resolution of an application well beyond the 30-day

timeframe. Also, rehearing could implicate the same question raised in another

pending application, especially when the retroactivity of a recent Supreme Court

case is at stake. When this circumstance arises, it makes no sense to treat the

timeframe as mandatory for one application but not another. That would result in

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two applications which are identical on the merits having opposite outcomes based

on the date each application was filed. And the same would be true when a Court

of Appeals certifies to the Supreme Court a question that would decide an

application to file a second or successive motion. See Felker v. Turpin, 518 U.S.

651, 667 116 S. Ct. 2333, 2341–42 (1996) (Souter, J., concurring). In these cases,

the unique procedural posture of an application might make it impractical to

properly decide an issue in 30 days. In the same way, it makes no sense here to

dispose of Mr. Johnson’s case when the Supreme Court is about to answer the very

question he has raised.

III.

We are aware of this Court’s recent suggestion that “this Court necessarily

must apply § 2244(b)(2) under a tight time limit in all cases, since the statute

expressly requires us to resolve this application within 30 days, no matter the

case.” In re Henry, 757 F.3d 1151, 1157 n.9 (11th Cir. 2014). Anything Henry

said about § 2244(b)(3)(D) is dicta because it was not necessary to decide the

issues then before the Court. See United States v. Kaley, 579 F.3d 1246, 1253 n.10

(11th Cir. 2009) (“As our cases frequently have observed, dicta is defined as those

portions of an opinion that are not necessary to deciding the case then before us.”

(quotation omitted)).

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Mr. Henry was a death row inmate who filed a request for stay of execution

just four days before his scheduled execution, along with an emergency application

for leave to file a second or successive federal habeas petition under 28 U.S.C.

§ 2244(b). Henry, 757 F.3d at 1152–53. Mr. Henry expressly requested

“expedited consideration of” his application to file a second or successive motion

based on the then-recent decision in Hall v. Florida, ___ U.S. ___, 134 S. Ct. 1986

(2014). He emphasized that his application would be “moot if not ruled on” before

his scheduled execution. Notably, Mr. Henry’s application did not ask for full

briefing or oral argument. Rather, he requested a prompt ruling and an “order

authorizing the United States District Court for the Middle District of Florida to

consider a second or successive petition for writ of habeas corpus raising a claim

of intellectual disability under Atkins v. Virginia,” as well as a stay of execution

pending the outcome of the second or successive habeas proceedings in the District

Court.

Three days after Mr. Henry filed his emergency application, our Court

denied it “for two independent reasons: first, the rule enunciated in Hall v. Florida

ha[d] not been made retroactive by the United States Supreme Court; moreover,

even if it had been, [Mr. Henry] ha[d] not shown a reasonable likelihood that he

would benefit from the rule in Hall.” 757 F.3d at 1153. This Court also denied

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Mr. Henry a stay because he had not established any likelihood of success on the

merits. Id. at 1163. Given that the Court denied Mr. Henry’s emergency motion

on the merits three days after it was filed, that Mr. Henry had requested expedited

consideration, and that the 30-day timeframe was not at issue in the case, it is safe

to say that anything Henry said about the 30-day timeframe was dicta, not holding.

See Kaley, 579 F. 3d at 1253 n.10.

IV.

The federal courts have already failed Mr. Johnson once. We know from

Johnson that the statute that required Mr. Johnson’s mandatory minimum 15-year

sentence violates the Due Process Clause. We also know that the government has

long conceded that the Supreme Court made Johnson retroactive to cases on

collateral review. And we know that the Supreme Court has granted certiorari in

Welch to resolve the circuit conflict on whether Johnson applies retroactively to

cases like this one. We will soon know from Welch whether Mr. Johnson’s § 2255

motion can proceed. It’s simply a matter of time.

Unfortunately, time is the one thing Mr. Johnson (and every other prisoner

in the Eleventh Circuit who is in his position) does not have. The Supreme Court

decided Johnson on June 26, 2015. That means (as far as we can tell now, and

without deciding the question) that the deadline for Johnson-based applications is

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June 26, 2016, regardless of when Welch is decided. See Dodd v. United States,

545 U.S. 353, 358–59, 125 S. Ct. 2478, 2482–83 (2005) (holding that the one-year

statute of limitations for both “initial [§ 2255] motions as well as second or

successive ones” begins to run on the date the Supreme Court initially recognizes a

new rule, not the date it makes the rule retroactive). In order to ensure that Mr.

Johnson isn’t condemned to an unlawful prison sentence solely based on our

mistake of law, we hold his application in abeyance until the Supreme Court

decides Welch.

APPLICATION HELD IN ABEYANCE.

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