In Re: James Howard Sams

Case: 16-14515 Date Filed: 07/26/2016 Page: 1 of 13

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-14515-J
________________________

IN RE: JAMES HOWARD SAMS,

Petitioner.

__________________________

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

Before: ED CARNES, Chief Judge, HULL, and WILLIAM PRYOR, Circuit Judges.

B Y T H E P A N E L:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), James Howard Sams has filed an

application seeking an order authorizing the district court to consider a second or successive

motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization

may be granted only if we certify that the second or successive motion contains a claim involving:

(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 on collateral
review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the
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application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan

v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s

determination that an applicant has made a prima facie showing that the statutory criteria have

been met is simply a threshold determination).

In his application, Sams indicates that he wishes to raise the following claims in a second

or successive § 2255 motion: (1) his counsel was ineffective for not objecting to his sentence

pursuant to 18 U.S.C. § 924(c) because no weapon was ever recovered or presented as evidence;

(2) his sentence pursuant to 18 U.S.C. § 2113(a) exceeded the statutory maximum sentence;

(3) the sentencing court erred by not making Sams aware of the mandatory minimum sentence

under §§ 2113(a) and 924(c); (4) his sentence was in violation of United States v. Booker, 543 U.S.

220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) because his guideline sentence was treated as

mandatory rather than advisory; (5) his jury was tainted by extraneous influences and juror

misconduct; (6) the prosecutor engaged in misconduct by charging him under § 2113(a) instead of

§ 2113(a) and (d); (7) his indictment was defective for “lack of substance on gun possession”;

(8) his counsel was ineffective for not requesting a change of venue after the mistrial; (9) his

career-offender enhancement violates due process because his prior offenses are not “crimes of

violence”; and (10) his conviction pursuant to § 924(c) violates due process because he was not

convicted of a “crime of violence.” He states that his claims rely upon a new rule of constitutional

law, citing Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and

Welch v. United States 578 U.S. ___, 136 S. Ct. 1257, 194 L. Ed. 2d 387 (2016). He also

indicates that his claims rely on newly discovered evidence, based on the decisions in Brown v.

United States, Nos. CV415-199, CR 412-278, 2016 U.S. Dist. LEXIS 46588 (S.D. Ga. Apr. 6,

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2016), and Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). He

argues that his newly discovered evidence establishes his innocence because he never possessed a

firearm and no weapon was recovered, and, therefore, his § 924(c) conviction was unlawful.

I. THE ACCA

The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), defines the term “violent

felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the

“elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is

commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir.

2012).

On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA

is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by

a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at ___, ___,

135 S. Ct. at 2557-58, 2563. The Court clarified that, in holding that the residual clause is void, it

did not call into question the application of the elements clause and the enumerated crimes of the

ACCA’s definition of a violent felony. Id. at ___, 135 S. Ct. at 2563. In Welch, the Supreme

Court thereafter held that Johnson announced a new substantive rule that applies retroactively to

cases on collateral review. Welch, 578 U.S. at ___, ___, 136 S. Ct. at 1264-65, 1268.

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In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can

make a prima facie showing that they previously were sentenced, at least in part, in reliance on the

ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in

the district court. See In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016). However, merely

alleging a basis that meets § 2255(h)’s requirements in the abstract only “represent[s] the

minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C),

the applicant also must make “a prima facie showing that the application satisfies the requirements

of this subsection.” In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). Accordingly, it

appears that it is not enough for a federal prisoner to simply identify Johnson as the basis for the

claim or claims he seeks to raise in a second or successive § 2255 motion, as he also must show

that he falls within the scope of the new substantive rule announced in Johnson. See, e.g., id.;

28 U.S.C. § 2244(b)(3)(C).

II. SECTION 924(c) CLAIM

Distinct from the provision in § 924(e), § 924(c) provides for a mandatory consecutive

sentence for any defendant who uses a firearm during a crime of violence or a drug-trafficking

crime. 18 U.S.C. § 924(c)(1). For the purposes of § 924(c), “crime of violence” means an

offense that is a felony and:

(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.

Id. § 924(c)(3)(A), (B). The former clause is referred to herein as the “use-of-force” clause and

that later clause as the “§ 924(c)(3)(B) residual clause.” Notably, the ACCA’s elements clause

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only involves the use of force “against the person of another,” while the use-of-force clause

involves the use of force “against the person or property of another.” Compare 18 U.S.C.

§ 924(e)(2)(B)(i), with 18 U.S.C. § 924(c)(3)(A) (emphasis added). Further, the physical force

used can be an “attempted use” or even a “threatened use” of force. See 18 U.S.C. § 924(c)(1)(A).

We recently recognized that it is an open question whether Johnson applies to the residual

clause set out in 18 U.S.C. § 924(c)(3)(B). In re Pinder, ___ F.3d ___, ___, No. 16-12299, 2016

WL 3081954, at *2 (11th Cir. June 1, 2016). In Pinder, this Court considered whether a

companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of

violence under § 924(c). Id. at *2 n.1. Because it was not clear whether conspiracy to commit

Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the

applicant had made a prima facie case that Johnson impacted the validity of his § 924(c)

conviction. Id.

In other cases, it has been clear that the § 924(c) companion conviction qualifies as a crime

of violence under § 924(c). See, e.g., In re Saint Fleur, ___ F.3d ___, ___, No. 16-12299-J, 2016

WL 3190539, at *3 (11th Cir. June 8, 2016) (11th Cir. June 8, 2016) (concluding that a companion

conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the

use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re

Hines, ___ F.3d ___, ___, No. 16-12454-F, 2016 WL 3189822, at *3 (11th Cir. June 8, 2016)

(concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C.

§ 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A)

use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, ___ F.3d

___, ___, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3-4 (11th Cir. June 24, 2016)

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(same for a companion conviction for aiding and abetting a Hobbs Act robbery); In re Smith, ___

F.3d ___, ___, Nos. 16-13661-J, 16-14000-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016)

(same for a companion conviction for carjacking, in violation of 18 U.S.C. § 2119); see also In re

Gordon, ___ F.3d ___, ___, Nos. 16-13681-J, 16-13803-J, 2016 WL 3648472, at *4 (11th Cir. July

8, 2016) (concluding that Saint Fleur and Hines do not conflict with Pinder and rejecting the claim

that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control the outcome of

an applicant’s Johnson-based § 924(c) claim).

Here, Sams was indicted on one count of bank robbery, in violation of § 2113(a) (“Count

1”), and one count of possessing, carrying, using, and brandishing of a firearm during the

commission of a crime of violence, in violation of § 924(c)(1)(A)(ii) (“Count 3”).1 Count 1 of the

indictment charged that Sams, “by force and violence and intimidation, took United States

Currency from the person of another which was in the care, custody, control, management and

possession of Northwest Georgia Bank, a bank insured by the Federal Deposit Insurance

Corporation.” Count 3 of the indictment charged that Sams “possessed, carried, used, and

brandished a firearm during the commission of a crime of violence, that is, the bank robbery

alleged in Count One.” A jury convicted Sams of Counts 1 and 3. Sams was sentenced to a term

of imprisonment of 240 months as to the § 2113(a) conviction in Count 1 and a consecutive term of

84 months as to the § 924(c) conviction in Count 3.

Sams has not made a prima facie showing for relief under Johnson as to his conviction

pursuant to § 924(c). Sams’s § 924(c) conviction was based on his companion conviction for

1
Sams was also indicted on one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g) and 924(e) (“Count 2”). That count was ultimately dismissed.
The sentence at issue in this case was imposed on only Counts 1 and 3.

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bank robbery, in violation of § 2113(a), which requires that the defendant take the property of a

bank “by force and violence, or by intimidation.” See 18 U.S.C. § 2113(a). We have concluded

that an armed bank robbery conviction pursuant to § 2113(a) and (d) qualifies as a crime of

violence because it requires as an element, “the use, attempted use, or threatened use of physical

force against the person or property of another,” as set out in § 924(c)(3)(A). Hines, manuscript

op. at 5-7. Additionally, as to the “by intimidation” language contained in § 2113(a), this Court

has held that similar language still satisfies the § 924(c)(3)(A) use-of-force clause. See United

States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994) (concluding, in the context of the federal

carjacking statute, 18 U.S.C. § 2119, that “[t]aking or attempting to take by force and violence or

by intimidation . . . encompasses the use, attempted use, or threatened use of physical force.”

(emphasis added) (quotation marks and alterations omitted)).

While we have not directly held that a bank robbery conviction under only § 2113(a),

rather than an armed bank robbery conviction under § 2113(a) and (d), qualifies as a crime of

violence under the § 924(c)(3)(A) use-of-force clause, the statutory language in § 2113(a) and our

holdings in Hines and Moore make clear that such a conviction falls within the scope of the

§ 924(c)(3)(A) use-of-force clause. Indeed, other circuits have concluded that a bank robbery

conviction under § 2113(a) qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force

clause. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding that a bank

robbery conviction under § 2113(a) qualifies as a “crime of violence” under the § 924(c)(3)(A)

use-of-force clause because (1) bank robbery “by force and violence” requires the use of physical

force, (2) bank robbery “by intimidation” requires the threatened use of physical force, and (3)

“[e]ither of those alternatives includes an element that is the use, attempted use, or threatened use

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of physical force”) (quotation marks omitted); Royal v. Tombone, 141 F.3d 596, 602 (5th Cir.

1998) (noting that a bank robbery conviction under § 2113(a) “includes as a necessary element the

use of force and violence or intimidation” and referencing the § 924(c)(3)(A) use-of-force clause

to conclude that a bank robbery conviction under § 2113(a) qualifies as a crime of violence); see

also United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (citing the § 924(c)(3)(A)

use-of-force clause and concluding that armed bank robbery qualifies as a crime of violence

because § 2113(a) requires a taking by force and violence, or by intimidation).

In McNeal, the Fourth Circuit explained precisely why a conviction under § 2113(a) alone

would still satisfy the § 924(c)(3)(A) use-of-force clause:

A taking “by force and violence” entails the use of physical force. Likewise,
a taking “by intimidation” involves the threat to use such force. As the Seventh
Circuit explained . . . , “[t]here is no space between ‘bank robbery’ and ‘crime of
violence’” because “violence in the broad sense that includes a merely threatened
use of force is an element of every bank robbery.”

....

Put succinctly, . . . [b]ank robbery under § 2113(a), “by force and violence,”
requires the use of physical force. Bank robbery under § 2113(a), “by
intimidation,” requires the threatened use of physical force. Either of those
alternatives includes an element that is “the use, attempted use, or threatened use of
physical force,” and thus bank robbery under § 2113(a) constitutes a crime of
violence under the force clause of § 924(c)(3).

McNeal, 818 F.3d at 153 (citations and alterations omitted).

We agree with the Fourth Circuit’s reasoning and hold now that a bank robbery conviction

under § 2113(a) by force and violence or by intimidation qualifies as a crime of violence under the

§ 924(c)(3)(A) use-of-force clause. Therefore, Sams has not made a prima facie showing for

relief as to his § 924(c) claim.

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III. CAREER OFFENDER GUIDELINES CLAIM

Similarly, Sams has not made a showing that he is entitled to relief on his career-offender

enhancement following Johnson. Section 4B1.1 of the Sentencing Guidelines provides that a

defendant is classified as a career offender if (1) he was at least 18 years old at the time of the

offense of conviction; (2) the offense of conviction was either a crime of violence or a

controlled-substance offense; and (3) he had at least two prior felony convictions of either a crime

of violence or a controlled-substance offense. U.S.S.G. § 4B1.1(a). The Guidelines define

“crime of violence” as any offense under federal or state law that is punishable by imprisonment

for more than one year and:

(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.

U.S.S.G. § 4B1.2(a).

In United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), this Court held that

the vagueness doctrine, upon which Johnson invalidated the ACCA’s residual clause, did not

similarly apply to advisory Sentencing Guidelines. Then, in In re Griffin, ___ F.3d ___, ___,

No. 16-12012, 2016 WL 3002293, at *4 (11th Cir. May 25, 2016), we concluded that the “logic

and principles established in Matchett also govern . . . when the Guidelines were mandatory.”

Alternatively, even if Johnson invalidated the § 4B1.2 residual clause, we concluded that Welch

did not make Johnson retroactive for purposes of a successive § 2255 motion based on the

Guidelines. In re Griffin, ___ F.3d at ___, 2016 WL 3002293, at *5.

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Sams has not satisfied the statutory criteria for filing a successive § 2255 motion based

on his career-offender enhancement for several independent and alternative reasons.

First, Sams has not made a prima facie showing that Johnson applies to him in light of

Matchett’s and Griffin’s precedent that the Sentencing Guidelines cannot be unconstitutionally

vague. See id. at ___, 2016 WL 3002293, at *4; Matchett, 802 F.3d at 1195.

Second, our precedent holds that Welch does not make Johnson retroactive for purposes of

filing a successive § 2255 motion raising a Johnson-based challenge to the Sentencing Guidelines.

See In re Griffin, ___ F.3d at ___, 2016 WL 3002293, at *5; see also Welch, 578 U.S. at ___, 136

S. Ct. at 1264-65.

Third, even if Johnson retroactively applies to the Guidelines, Sams’s claims still fail.

Sams’s presentence investigation report (“PSI”) found him to be a career offender because he had

the following prior felony convictions: (1) 1985 California convictions for seven counts of

robbery;2 and (2) 1985 federal convictions for two counts of bank robbery and two counts of

robbery of savings and loan associations. 3 Sams did not object to the PSI’s listing of his

convictions or to the fact of these prior convictions. At sentencing, the district court adopted the

findings of fact and conclusions of law in the PSI in all respects. Sams also did not file a direct

appeal.

2
The seven robberies of banks and businesses were committed on different days during
1984-85 in Los Angeles, California, but Sams was sentenced to serve 15 years in prison for these
convictions on the same day (July 16, 1985). Thus, they count as one predicate for
career-offender status.
3
These robberies also were committed on different days, but the sentence was imposed on
the dame day (September 9, 1985). The PSI also identified other convictions for burglaries and
robberies, but the above crimes were used for the career-offender designation.

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Sams’s robbery convictions categorically count as crimes of violence under the

Guidelines’ enumerated crimes clause. See U.S.S.G. § 4B1.2 cmt. n.1 (stating that “crime of

violence” includes, inter alia, “robbery”); In re Burgest, ___ F.3d ___, No. 16-13597, 2016 WL

3923836, at *2 (11th Cir. July 21, 2016) (stating that this Court has recognized, based on the

decision of the Supreme Court in Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915

(1993), that “the definition of ‘crime of violence’ provided by the Guidelines commentary is

authoritative”). Thus, Sams has the required two convictions for crimes of violence and is a

career offender without regard to the Guidelines’ residual clause. Johnson, even if retroactively

applied to the Guidelines, does not benefit Sams.

IV. SAMS’S OTHER CLAIMS

Sams’s claims also do not rely on newly discovered evidence. Sams seems to argue that

Brown and Alleyne constitute newly discovered evidence. However, these decisions do not

establish Sams’s factual innocence of the offense of conviction. See In re Boshears, 110 F.3d

1538, 1541 (11th Cir. 1997) (holding that the applicant must show that the newly discovered

evidence established that he was actually innocent of the offense). To the extent that Sams seeks

to rely on the decisions in Brown and Alleyne as new rules of constitutional law, his claim fails.

First, Brown is a decision from the district court, rather than a Supreme Court decision. Second,

we have not yet determined, in a published opinion, whether Alleyne created a new rule of

constitutional law that the Supreme Court made retroactive to cases on collateral review for

purposes of authorizing a second or successive collateral attack, or whether it is retroactive to

initial collateral proceedings. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86 (11th

Cir. 2014) (holding, in the context of a prisoner seeking to establish eligibility under the five-part

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18 U.S.C. § 2255(e) savings clause test, that Alleyne does not apply retroactively on collateral

review); United States v. Harris, 741 F.3d 1245, 1250 & n.3 (11th Cir. 2014) (applying Alleyne but

noting that “doing so is not intended to suggest that Alleyne applies retroactively to cases on

collateral review” because “Alleyne was decided in the context of a direct appeal, and the Supreme

Court itself has not expressly declared Alleyne to be retroactive on collateral review”).

Even assuming arguendo that Alleyne established a “new rule of constitutional law” within

the meaning of § 2255(h)(2), it has not been made retroactive to cases on collateral review by the

Supreme Court. For a new rule to be retroactive to cases on collateral review for purposes of

authorizing a second or successive § 2255 petition, the Supreme Court itself must make the rule

retroactive. Tyler v. Cain, 533 U.S. 656, 662-63, 121 S. Ct. 2478, 2482, 150 L. Ed. 2d 632

(2001). Although multiple cases can, together, make a rule retroactive, the holdings in those

cases must necessarily dictate retroactivity of the new rule. Id. at 666, 121 S. Ct. at 2484. The

Supreme Court itself has not expressly declared Alleyne to be retroactive to cases on collateral

review. See generally Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155-64. Alleyne also has not been

made retroactive through any combination of cases that necessarily dictate retroactivity.

Moreover, Alleyne was decided in the context of a direct appeal, and the Supreme Court has not

since applied it to a case on collateral review. See id. at ___, 133 S. Ct. at 2155-56; In re

Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) (concluding that United States v. Booker,

543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), was not retroactively applicable in part

because it was decided in the context of a direct appeal, and the Supreme Court had not applied it

to a case on collateral review). Therefore, because the Supreme Court has not held, either directly

or by a series of decisions that necessarily dictate its retroactivity, that Alleyne is retroactively

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applicable, Sams’s reliance on it for purposes of § 2255(h)(2) is misplaced. See 28 U.S.C.

§ 2255(h)(2); Tyler, 533 U.S. at 663, 666, 121 S. Ct. at 2482, 2484.

Furthermore, to the extent Sams seeks to rely on Booker as a new rule of constitutional law,

his reliance is similarly misplaced. We have concluded that Booker is not retroactively applicable

because it was decided in the context of a direct appeal and the Supreme Court had not since

applied it to a case on collateral review. Anderson, 396 F.3d at 1339.

Finally, the remainder of Sams’s claims, including his challenges to his conviction

pursuant to § 2113(a), his claims of alleged juror and prosecutorial misconduct, and his ineffective

assistance of counsel claims, do not meet the statutory criteria because Johnson and Welch did not

address these issues. Further, Sams does not allege, much less show, that these claims rely on

newly discovered evidence.

Accordingly, because Sams has not made a prima facie showing that his proposed claims

meet the statutory criteria, his application for leave to file a second or successive motion is hereby

DENIED.

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