United States v. Michael St. Hubert

Case: 16-10874 Date Filed: 03/19/2019 Page: 1 of 90

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-10874
________________________

D.C. Docket No. 1:15-cr-20621-FAM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL ST. HUBERT,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, and
BRANCH, Circuit Judges. *

*
Judge Grant did not participate in the decision to rehear this case en banc. Judge Julie
Carnes participated in the en banc poll that was conducted in this case before taking senior status
on June 18, 2018.
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BY THE COURT:

A member of this Court in active service having requested a poll on whether

this case should be reheard by the Court sitting en banc, and a majority of the

judges in active service on this Court having voted against granting a rehearing en

banc, it is ORDERED that this case will not be reheard en banc.
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TJOFLAT, Circuit Judge, joined by ED CARNES, Chief Judge, and WILLIAM
PRYOR, NEWSOM, and BRANCH, Circuit Judges, concurring in the denial of
rehearing en banc.

Two dissents—those by Judges Wilson and Martin—have seized upon this

direct appeal case as an opportunity to criticize our Court’s processing and

publishing of orders on federal prisoners’ applications to file successive motions

under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but

also contain unfounded attacks on the integrity of the Court as an institution. So,

regrettably, a response is required to set the record straight.

These two dissents focus on only prisoners’ post-conviction applications to

file successive § 2255 motions. To place the subject matter of the dissents in

context, it is necessary to describe first (1) the nature of the instant direct-appeal

case and (2) how, after a direct appeal, a federal prisoner has yet another

post-conviction opportunity to challenge his sentence through an initial 28 U.S.C.

§ 2255 motion. Second, I explain how Congress has strictly limited prisoners’

applications to file successive § 2255 motions that seek to challenge yet again a

federal conviction and sentence that has long since become final.

Third, to correct the record about our Court’s published orders ruling on

such applications, I provide the statistics that show how our Court has published

only 1 to 2% of its orders on post-conviction applications to file successive § 2255

motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to

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what the dissents claim, I discuss how all published orders of this Court are always

subject to further review, such as the en banc poll in this very case. As explained

below, there simply isn’t (nor has there ever been) any crisis about our Court’s

published orders.

I. INSTANT CASE IS DIRECT CRIMINAL APPEAL

Let’s start with what type of proceeding the instant case is and is not. This

criminal case is a direct appeal, wherein the appellant-defendant St. Hubert

challenges his two federal firearm convictions under 18 U.S.C. § 924(c). St.

Hubert has never disputed that he had and brandished a firearm while robbing an

AutoZone store on January 21, 2015, and while attempting to rob another

AutoZone store on January 27, 2015. United States v. St. Hubert, 909 F.3d 335,

338–40 (11th Cir. 2018).

Rather, St. Hubert contends that his admitted Hobbs Act robbery crimes do

not qualify as predicate “crimes of violence” under § 924(c)(3)’s definitions. Id. at

340. After briefing and oral argument, a panel of this Court affirmed St. Hubert’s

firearm convictions, concluding his predicate armed robbery offenses qualify as

crimes of violence under § 924(c)(3)’s residual and elements clauses. See id. at

344–53. In affirming, the St. Hubert panel followed, in part, this Court’s binding

precedent in In re Saint Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016), which

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held that Hobbs Act robbery qualifies as a crime of violence under 18 U.S.C.

§ 924(c)(3)(A)’s elements clause. St. Hubert, 909 F.3d at 345–46.

In doing so, our St. Hubert panel pointed out that five other circuits, like our

In re Saint Fleur published order, had held that Hobbs Act robbery is a crime of

violence under § 924(c)(3)(A)’s elements clause. United States v. Barrett, 903

F.3d 166, 174 (2d Cir. 2018), petition for cert. filed, No. 18-6985 (U.S. Dec. 11,

2018); United States v. Melgar-Cabrera, 892 F.3d 1053, 1064–66 (10th Cir.), cert.

denied, 139 S. Ct. 494 (2018); Diaz v. United States, 863 F.3d 781, 783–84 (8th

Cir. 2017); United States v. Gooch, 850 F.3d 285, 291–92 (6th Cir.), cert. denied,

137 S. Ct. 2230 (2017); United States v. Rivera, 847 F.3d 847, 848–49 (7th Cir.),

cert. denied, 137 S. Ct. 2228 (2017). Since that time, two other circuits have held

the same. United States v. Bowens, 907 F.3d 347, 353–54 (5th Cir. 2018), petition

for cert. filed, No. 18-7612 (U.S. Jan. 28, 2019); United States v. Garcia-Ortiz, 904

F.3d 102, 106–09 (1st Cir. 2018), petition for cert. filed, No. 18-7176 (U.S. Dec.

27, 2018). As to Hobbs Act robbery, our Court is simply not an outlier.

In addition to direct appeals like this case, a federal prisoner has a second

post-conviction opportunity to challenge his sentence by timely filing an initial

§ 2255 motion in the district court. Section 2255(a) provides:

A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
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sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). If the district court denies the initial § 2255 motion, the

federal prisoner may directly appeal that ruling to this Court. Id. § 2255(d).

In short, as important factual context, the dissents do not address, or

complain about, direct appeals or initial § 2255 motions, whereby a federal

prisoner already has had two post-conviction opportunities to challenge his

sentence. Rather, the dissents ignore those two avenues of redress and are using

this direct-appeal case as a vehicle to write about only a third type of

post-conviction proceeding: a federal prisoner’s application to file a second or

successive § 2255 motion pursuant to § 2255(h). I therefore turn to § 2255(h),

which restricts prisoners’ applications to file successive § 2255 motions.

II. PRISONERS’ APPLICATIONS TO FILE SUCCESSIVE § 2255
MOTIONS

After a federal prisoner has used his two post-conviction opportunities to

challenge his sentence (through a direct appeal and an initial § 2255 motion),

Congress has narrowly and significantly limited the subsequent or successive times

a federal prisoner can challenge his final sentence. 28 U.S.C. § 2255(h). In the

§ 2255(h) statute, Congress has restricted such successive post-conviction

challenges to only two types of highly circumscribed claims: (1) claims based on

“newly discovered evidence that, if proven and viewed in light of the evidence as a
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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) claims based on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” Id.

Congress imposed these restrictions on successive § 2255 motions in order

to achieve finality of federal criminal judgments and to stop an endless flow of

post-conviction petitions by federal prisoners in the federal courts. See Gonzalez v.

Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (en banc) (“The

central purpose behind the [Antiterrorism and Effective Death Penalty Act

(“AEDPA”)] was to ensure greater finality of state and federal court judgments in

criminal cases, and to that end its provisions greatly restrict the filing of second or

successive petitions.”); see also Williams v. Warden, 713 F.3d 1332, 1338 (11th

Cir. 2013) (“Congress expressed its clear intent to impose a jurisdictional

limitation on a federal court’s ability to grant a habeas petitioner what is effectively

a third bite at the apple after failing to obtain relief on direct appeal or in his first

postconviction proceeding.”); Gilbert v. United States, 640 F.3d 1293, 1311 (11th

Cir. 2011) (en banc) (“The statutory bar against second or successive motions is

one of the most important AEDPA safeguards for finality of judgment.”).

Significantly here, Congress required all federal prisoners to get advance

permission from a federal appellate court in order to even file a successive

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post-conviction § 2255 motion in a federal district court. 28 U.S.C. § 2255(h) (“A

second or successive motion must be certified . . . by a panel of the appropriate

court of appeals . . . .”). And Congress has limited the authority of this appellate

Court to grant applications only to where the prisoner’s application “makes a prima

facie showing that the application satisfies the requirements of [§ 2255(h)].” See

28 U.S.C. §§ 2244(b)(3)(C), 2255(h). Accordingly, as relevant here, for our Court

to grant a federal prisoner’s post-conviction application, the prisoner must make a

prima facie showing that a new substantive rule of constitutional law retroactively

applied to his case and invalidated his sentence. Id. Further, Congress has directed

appellate courts to rule on such applications to file successive § 2255 motions

within 30 days from the filing. See id. § 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.”).

These substantial restrictions on federal prisoners filing successive § 2255

post-conviction motions are not our rules, but Congress’s statutory mandates to

federal courts. After a final judgment and an initial § 2255 post-conviction motion,

there is no federal court jurisdiction to consider a successive § 2255 motion except

for these two limited types of claims specified in § 2255(h).

Although Congress’s statutory restrictions on federal court jurisdiction are

substantial, the Supreme Court has at times, albeit not often, issued decisions that

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ultimately fall within the scope of § 2255(h)(2). As an example, in 2015, the U.S.

Supreme Court issued its decision in Johnson v. United States, which held that the

“residual clause” definition of a “violent felony” in the Armed Career Criminal Act

(“ACCA”) was unconstitutionally vague. --- U.S. ---, 135 S. Ct. 2551, 2555–58,

2563 (2015). The ACCA imposes a sentence enhancement if a convicted federal

prisoner was already convicted of three prior “violent felonies.” 18 U.S.C.

§ 924(e)(1). Thereafter, the Supreme Court in Welch v. United States held that

Johnson announced a new substantive rule that applies retroactively on collateral

review to federal sentences enhanced under the ACCA. 578 U.S. __, __, __, 136

S. Ct. 1257, 1264–65, 1268 (2016).

After Johnson invalidated the ACCA’s residual clause and as shown by this

Court’s statistics in Table 1 below, a large number of federal prisoners’

applications—2,258 applications in our Court in 2016 alone—were filed seeking

leave to file second or successive § 2255 motions based on Johnson’s ACCA

ruling about the residual clause. And in 2016, our Court issued 2,282 orders on

those 2,258 applications and a few applications carried over from the end of the

prior year.

As required by Congress, the prisoners had to file in this Court before filing

in the district court and had to show a prima facie case that Johnson applied to

their sentences. The Court carefully reviewed each and every individual

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application. The Court determined that some of those federal prisoners who filed

were not even sentenced under the ACCA, and Johnson did not apply to their cases

at all. See, e.g., In re Griffin, 823 F.3d 1350, 1354–56 (11th Cir. 2016) (holding

that Johnson’s vagueness ruling does not apply to prisoners sentenced under the

career offender sentencing guidelines). In its review, this Court also readily

determined that other prisoners had an ACCA-enhanced sentence, but that—based

on our prior Court precedent—the prisoners’ prior convictions qualified as violent

felonies under the ACCA’s elements clause, without regard to the ACCA’s

residual clause invalidated in Johnson. See, e.g., In re Rogers, 825 F.3d 1335,

1341 (11th Cir. 2016) (holding that, under this Court’s prior precedent in Turner v.

Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), the defendant’s

prior Florida convictions for aggravated assault and aggravated battery qualified as

violent felonies under the ACCA’s elements clause); In re Robinson, 822 F.3d

1196, 1197 (11th Cir. 2016) (holding that, under this Court’s prior precedent in

United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), United States v. Hill, 799

F.3d 1318 (11th Cir. 2015) (per curiam), and Turner, the defendant’s prior Florida

convictions for armed robbery and aggravated battery qualified as violent felonies

under the ACCA’s elements clause).

In addition, some prisoners claimed the ACCA sentencing decisions in

Johnson and Welch invalidated their sentences (or convictions) under wholly

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separate federal statutes, such as 18 U.S.C. § 924(c) and its “crime of violence”

definition. In those cases, this Court determined that Johnson’s residual clause

holding did not apply to companion § 924(c) crimes and that, even assuming

Johnson did, the prisoners’ crimes qualified under § 924(c)’s elements clause,

which likewise was not affected by Johnson. See, e.g., In re Sams, 830 F.3d 1234,

1236, 1238–39 (11th Cir. 2016); In re Colon, 826 F.3d 1301, 1302–03, 1305 (11th

Cir. 2016); In re Saint Fleur, 824 F.3d at 1338–40.

The dissents improperly criticize our Court for publishing some of our 2,282

orders in these cases in 2016. However, the dissents ignore that our Court

published only 31, or 1.36%, of our large volume of 2,282 orders in 2016. In fact,

taking the five-year period from April 1, 2013 to April 1, 2018,1 our Court

published only 1.2% of its orders in § 2255(h) applications.

To accurately show these facts, I include two tables of statistics below,

which demonstrate that this Court published a total of 45 orders from April 1, 2013

to April 1, 2018. 2 Given the dissents primarily criticize our 2016 published orders

1
This is the five-year period used in Judge Jordan’s concurring opinion and Appendix.
See Jordan, J., concurring op. at 8–9.
2
As used in this opinion, the year is defined as April 1 of the listed year to March 31 of
the subsequent year with April 1 as the applicable year date. For consistency, Tables 1 and 2 use
the same timeframe and decision dates—April 1 to March 31—as Judge Jordan’s Appendix
attached to his concurring opinion. Thus, year 2013 is April 1, 2013 to March 31, 2014; year
2014 is April 1, 2014 to March 31, 2015; year 2015 is April 1, 2015 to March 31, 2016; year
2016 is April 1, 2016 to March 31, 2017; and year 2017 is April 1, 2017 to March 31, 2018.
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as to applications to file successive § 2255(h) motions, Tables 1 and 2 separate the

total 45 published orders by year and category of order: either § 2255(h) or

§ 2244(b).3 Table 1 shows that 39 of those 45 orders were published in § 2255(h)

applications from April 1, 2013 to April 1, 2018 and that 31 of those 39 orders

were published in 2016. Table 2 shows that only 6 of those 45 orders were

published in § 2244(b) applications from 2013 to 2018. 4

Table 1: Number of Applications for Leave to
File Successive § 2255(h) in the Eleventh Circuit
For Years from April 1, 2013 to April 1, 2018

Year 5 § 2255(h) Orders of Published % of Published
Applications Terminations Orders
2013 264 273 1 0.37%
2014 219 224 1 0.45%
2015 226 187 4 2.14%
2016 2,258 2,282 31 1.36%
2017 293 294 2 0.68%
TOTAL 3,260 3,260 39 1.20%

3
Section 2244(b) governs the filing of successive habeas corpus applications by state
prisoners under 28 U.S.C. § 2254. See § 2244(b).
4
To be clear and again for consistency, the 45 total number of our Court’s published
orders in Tables 1 and 2 below are the same as the number of orders listed in the Appendix of
Judge Jordan’s concurring opinion, which accurately and helpfully lists all of this Court’s
published orders in both § 2255(h) and § 2244(b) applications from April 1, 2013 to April 1,
2018. That Appendix combines them, and the tables separate the 45 published orders by
category: 39 on § 2255(h) applications and 6 on § 2244(b) applications.
5
Defined as April 1 of the listed year to March 31 of the subsequent year with April 1 as
the applicable year date. See supra note 2. For context, Welch was decided on April 18, 2016,
which explains the increased volume of § 2255(h) applications in 2016 (i.e., April 1, 2016 to
March 31, 2017).
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Table 2: Number of Applications for Leave to
File Successive § 2244(b) in the Eleventh Circuit
For Years from April 1, 2013 to April 1, 2018

Year § 2244(b) Orders of Published % of Published
Applications Terminations Orders
2013 344 336 1 0.30%
2014 310 316 3 0.95%
2015 320 324 2 0.62%
2016 274 270 0 0.00%
2017 283 290 0 0.00%
TOTAL 1,531 1,536 6 0.39%

In 2016 after the Johnson and Welch decisions, there was a heightened need

to publish at least some of these 2,282 orders to establish precedent, to provide

consistency in panel rulings in so many cases, and to facilitate the administration

of these matters. In some cases, it was not hard to see the right answer. In 2016, 8

of the 31 published orders in § 2255(h) cases granted the applications and 23

denied the applications.6 Further, the dissents fail to note that in all pro se

application cases in our Circuit, including every single application in 2016 to file a

All six of the published § 2244(b) orders involved death penalty cases where appellate
counsel represented the defendant. Thus, we primarily focus, as the dissents do, on our
published orders in § 2255(h) cases.
6
There were also four published orders during the 2015 year (April 1, 2015 to March 31,
2016), all of which involved claims based on Johnson. Three of those orders denied the
applications, and one order held the application in abeyance. In re Franks, 815 F.3d 1281 (11th
Cir. 2016) (denied), abrogation recognized by In re Robinson, 822 F.3d at 1199; In re Johnson,
814 F.3d 1259 (11th Cir. 2016) (held in abeyance), vacated, 815 F.3d 733 (11th Cir. 2016) (en
banc); In re Starks, 809 F.3d 1211 (11th Cir. 2016) (denied); In re Rivero, 797 F.3d 986 (11th
Cir. 2015) (denied).
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successive § 2255 motion, our Court’s Staff Attorney’s Office prepared legal

memoranda addressing the Johnson-Welch issues and, in many cases, reviewed

presentence investigation reports and sentencing transcripts. In addition, in some

prisoners’ cases, there were legal memoranda filed by a federal public defender or

the government or both later on.

Contrary to the dissents’ criticisms, and as Table 1 demonstrates, our Court

published a very small percentage of these orders ruling on applications to file

successive § 2255 motions. Although our Court published more in 2016 than in

other years, largely in the wake of Johnson and Welch, the percentage still stayed

exceedingly small at 1.36%. 7 And to be clear, all of this Court’s judges—

including those who dissent today—have joined in these orders.

Notably too, in 2016 alone, the dissenters—as at least two members of the

assigned three-judge panel (and sometimes all three members)—published 14 of

their own orders on prisoners’ applications to file successive § 2255 motions based

on Johnson. Thus, the dissenters published 14 of the 31 published orders in 2016.

That is roughly 45%. See In re Hunt, 835 F.3d 1277 (11th Cir. 2016); In re

7
We recognize, as Judge Jordan’s concurring opinion aptly points out, that other circuits
together have published 80 orders on successive applications in this same 5-year time frame and
only 20 orders in 2016. Jordan, J., concurring op. at 3. The concurrence properly recommends
that our Court should exercise caution in deciding to publish an order disposing of a successive
§ 2255 application, and “we [should] use the publication option sparingly.” Id. at 4. Given our
heavy caseload, Table 1 shows a 1 to 2% publication rate in 2016, which indicates we did so.
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Parker, 832 F.3d 1250 (11th Cir. 2016); In re Chance, 831 F.3d 1335 (11th Cir.

2016), abrogation recognized by Curry v. United States, 714 F. App’x 968 (11th

Cir. 2018); In re Jones, 830 F.3d 1295 (11th Cir. 2016); In re Gomez, 830 F.3d

1225 (11th Cir. 2016); In re Davis, 829 F.3d 1297 (11th Cir. 2016); In re Clayton,

829 F.3d 1254 (11th Cir. 2016); In re Sapp, 827 F.3d 1334 (11th Cir. 2016); In re

Parker, 827 F.3d 1286 (11th Cir. 2016); In re McCall, 826 F.3d 1308 (11th Cir.

2016); In re Rogers, 825 F.3d 1335 (11th Cir. 2016); In re Adams, 825 F.3d 1283

(11th Cir. 2016); In re Pinder, 824 F.3d 977 (11th Cir. 2016); In re Robinson, 822

F.3d 1196 (11th Cir. 2016).

Before that, in 2015, there were only four published orders in such § 2255(h)

applications, yet the dissenters, as at least two members of the assigned three-judge

panel, published two of those four orders—50% that year. 8 In re Johnson, 814

F.3d 1259; In re Starks, 809 F.3d 1211.

None of the dissents tell the reader this full story. 9

8
See supra notes 4 and 6.
9
This is not the first time these dissenters have voiced criticisms of the judges of this
Court as to its published orders and rulings on Johnson-based claims. For example, the
dissenters themselves recently published an order denying a state prisoner’s application for leave
to file a successive § 2254 habeas petition, in which the petitioner argued he had received
ineffective assistance of counsel. See In re Williams, 898 F.3d 1098 (11th Cir. 2018). The
dissenters attached to that order separate “concurrences” (that are similar to the dissents in this
case) even though the In re Williams case had nothing to do with Johnson, Welch, or federal
prisoners’ successive § 2255 motions. Id. at 1099–1105 (Wilson, J., specially concurring); id. at
1105–10 (Martin, J., specially concurring). These concurrences also omit critical background
facts, as do other opinions that the dissenters have filed in recent years. See, e.g., United States
v. Seabrooks, 839 F.3d 1326, 1349–50 (11th Cir. 2016) (Martin, J., concurring in the judgment);
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III. PUBLISHED PANEL ORDERS AS BINDING CIRCUIT PRECEDENT

Having placed this subject matter in context, I now turn to the dissents’

attacks on our Court’s rule: that published panel orders are binding precedent

under our prior panel precedent rule.

First, that published panel orders are binding precedent is not a new rule.

See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (“To be clear, our prior-

panel-precedent rule applies with equal force as to prior panel decisions published

in the context of applications to file second or successive petitions. In other words,

published three-judge orders issued under § 2244(b) are binding precedent in our

circuit.”); United States v. Kaley, 579 F.3d 1246, 1255–56 (11th Cir. 2009)

(applying In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), a published three-

judge order); In re Provenzano, 215 F.3d at 1235 (applying as binding prior-panel

precedent In re Medina, 109 F.3d 1556 (11th Cir. 1997), a published three-judge

order); see also In re Hill, 777 F.3d 1214, 1222–23 (11th Cir. 2015) (applying as

binding precedent In re Henry, 757 F.3d 1151 (11th Cir. 2014), a published three-

judge order); St. Hubert, 909 F.3d at 346 (concluding our Circuit already considers

published three-judge orders as binding precedent).

In re Clayton, 829 F.3d at 1263–67 (Martin, J., concurring in the result); In re McCall, 826 F.3d
at 1311–12 (Martin, J., concurring); In re Saint Fleur, 824 F.3d at 1341–44 (Martin, J.,
concurring). It is now time for a response.
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Second, the dissenters incorrectly state that our Court’s published orders are

insulated from further review. Contrary to the dissents, no published panel order in

any case in our Court is insulated from further review.

For example, whenever a panel publishes an order in any case in our Court,

any one of the active members of this Court can sua sponte request an en banc poll

in the exact same case asking that the published order be vacated and the case be

heard en banc. See Lambrix, 776 F.3d at 794; see also In re Johnson, 815 F.3d

733, 733 (11th Cir. 2016) (en banc) (granting rehearing en banc in a successive

application case after a member of this Court requested a poll); In re Morgan, 717

F.3d 1186, 1187 (11th Cir. 2013) (en banc) (denying rehearing en banc in a

successive application case after a member of this Court requested a poll); 11th

Cir. R. 35, I.O.P. 5 (“Any active Eleventh Circuit judge may request that the court

be polled on whether rehearing en banc should be granted whether or not a petition

for rehearing en banc has been filed by a party.”). If the majority of the active

judges vote to do so, this Court sitting en banc sua sponte can vacate that published

panel order and rehear that same case. See In re Johnson, 815 F.3d at 733; 11th

Cir. R. 35-10 (“[T]he effect of granting a rehearing en banc is to vacate the panel

opinion and the corresponding judgment.”). The real problem for the dissenters, it

seems to me, is that they have not garnered the majority votes needed to vacate the

particular published panel orders with which they disagree.

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In addition, each and every subsequent case following that initial published

order provides a second avenue of review. This direct appeal in St. Hubert’s case

aptly illustrates this second available avenue of review of binding precedent

established in a published panel order.

Here, the St. Hubert panel relied on our binding precedent in In re Saint

Fleur, a published panel order. St. Hubert, 909 F.3d at 345–46 (following In re

Saint Fleur’s holding that Hobbs Act robbery qualifies as a crime of violence

under § 924(c)(3)(A)’s elements clause, and thus Saint Fleur’s sentence was valid

even if Johnson rendered § 924(c)(3)(B)’s residual clause unconstitutional). Every

time a panel applies this In re Saint Fleur precedent (as the St. Hubert panel did

here), any active member of the Court can ask for en banc review of that In re

Saint Fleur precedent established in our Court’s published panel order. Such an en

banc poll was taken in this very case. Simply put, our Circuit law established in

published panel orders, such as the In re Saint Fleur precedent, is subject to an en

banc poll request each and every time it is applied in a subsequent case (like St.

Hubert’s).

Again, the problem for the dissenters is that the law established in the In re

Saint Fleur published order is sound, and thus the dissenters have been unable to

garner the majority votes needed to change that In re Saint Fleur precedent by

taking St. Hubert en banc. Moreover, after our Court’s In re Saint Fleur published

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order in 2016, at least seven of our sister circuits have reached the same holding

that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A)’s

elements clause. See Bowens, 907 F.3d at 353–54; Garcia-Ortiz, 904 F.3d at 106–

09; Barrett, 903 F.3d at 174; Melgar-Cabrera, 892 F.3d at 1064–66; Diaz, 863

F.3d at 783–84; Gooch, 850 F.3d at 291–92; Rivera, 847 F.3d at 848–49. 10

One dissent also points to, and criticizes by name, eight published orders by

our Court from 2016 to 2018 about what constitutes a violent felony under the

ACCA or a crime of violence under § 924(c). See Martin, J., dissenting at 14. But

as Table 1 above makes obvious, this is a byproduct of the large number of cases

that required and received our attention in 2016 to 2018. Surely, the number of

published panel orders in 2016 to 2018 should be placed in the context of our 2016

to 2018 caseload in this regard.

It also bears mentioning that since we published these eight orders, other

circuits have reached the same conclusions as many of them about what constitutes

a violent felony or a crime of violence. For example, in In re Hines, 824 F.3d

1334, 1336–37 (11th Cir. 2016), cited in Judge Martin’s dissent on page 19, this

Court held that armed federal bank robbery under 18 U.S.C. § 2113(a) and (d)

qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause. In In re

10
Indeed, in this instant direct appeal case, the panel has not only followed In re Saint
Fleur, but also has taken time to expand upon why Hobbs Act robbery qualifies as a crime of
violence under § 924(c)(3)(A)’s elements clause. See St. Hubert, 909 F.3d at 345–51.
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Sams, 830 F.3d at 1239, this Court further held that bank robbery solely under

§ 2113(a) qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause.

Like In re Hines and In re Sams, nine other circuits have held that companion

federal convictions for bank robbery under § 2113(a) or armed bank robbery under

§ 2113(a) and (d) qualify as either violent felonies under the ACCA’s elements

clause or as crimes of violence under the elements clauses of § 924(c) or U.S.S.G.

§ 4B1.2(a). See United States v. Deiter, 890 F.3d 1203, 1210–13 (10th Cir. 2018)

(holding bank robbery under § 2113(a) is a violent felony under the ACCA’s

elements clause); United States v. Harper, 869 F.3d 624, 625–27 (8th Cir. 2017)

(holding bank robbery under § 2113(a) is a crime of violence under § 4B1.2(a)’s

elements clause); United States v. Brewer, 848 F.3d 711, 713–16 (5th Cir. 2017)

(same); United States v. McBride, 826 F.3d 293, 295–96 (6th Cir. 2016) (same);

United States v. Johnson, 899 F.3d 191, 203–04 (3d Cir. 2018) (holding that both

bank robbery and armed bank robbery qualify as crimes of violence under

§ 924(c)’s elements clause); United States v. Watson, 881 F.3d 782, 784–86 (9th

Cir. 2018) (same); Hunter v. United States, 873 F.3d 388, 390 (1st Cir. 2017)

(same); United States v. Armour, 840 F.3d 904, 907–09 (7th Cir. 2016) (same);

United States v. McNeal, 818 F.3d 141, 151–57 (4th Cir. 2016) (same).

Similarly, in In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016), also cited in

Judge Martin’s dissent on page 19, this Court held that federal carjacking under 18

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U.S.C. § 2119 qualifies as a crime of violence under § 924(c)(3)(A)’s elements

clause. Four other circuits have likewise held that federal carjacking under § 2119

qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause. See

United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018); United States v.

Gutierrez, 876 F.3d 1254, 1255–57 (9th Cir. 2017), cert. denied, 138 S. Ct. 1602

(2018); United States v. Jones, 854 F.3d 737, 740–41 & n.2 (5th Cir.), cert. denied,

138 S. Ct. 242 (2017); United States v. Evans, 848 F.3d 242, 246–48 (4th Cir.),

cert. denied, 137 S. Ct. 2253 (2017).

The judges of this Court may have valid differences of opinion about the

legal issues involving the ACCA’s definition of a violent felony or § 924(c)’s

definition of a crime of violence, as discussed in these 31 published orders during

2016 and the 4 published orders during 2015. However, it is incorrect to say, as

the dissents do, that binding precedent established in published panel orders of this

Court, like In re Saint Fleur, are insulated from all further review. In the wake of

Johnson and Welch, the judges of this Court and the Court’s dedicated staff

attorneys and law clerks worked long hours faithfully reviewing and considering

2,282 prisoners’ applications in 2016 alone. This concurrence is done to afford the

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needed context to the process and our Court’s having published 31 orders on those

applications to file successive § 2255 motions in 2016.11

For all of these reasons, I concur in this Court’s denial of rehearing en banc

(1) as to whether Hobbs Act robbery qualifies as a crime of violence under

§ 924(c)’s definitions and (2) as to our Court’s rule that published panel orders

constitute binding precedent. 12

11
In a similar vein, the dissenters have attacked our decisions ruling that Johnson applied
to the ACCA but not to the advisory sentencing guidelines. See In re Hunt, 835 F.3d at 1278–80
(Wilson, J., concurring), 1280–84 (Rosenbaum, J., concurring), 1284–89 (Jill Pryor, J.,
concurring); In re Anderson, 829 F.3d 1290, 1294–97 (11th Cir. 2016) (Martin, J., dissenting); In
re Clayton, 829 F.3d at 1257–64 (Martin, J., concurring), 1267–70 (Rosenbaum, J., concurring),
1274–76 (Jill Pryor, J., concurring); In re McCall, 826 F.3d at 1310–11 (Martin, J., concurring);
In re Robinson, 822 F.3d at 1198 n.2 (Martin, J., concurring); United States v. Matchett, 802
F.3d 1185, 1193–96 (11th Cir. 2015).
Despite these criticisms, the Supreme Court in Beckles v. United States, 580 U.S. __, __,
137 S. Ct. 886, 890 (2017), ultimately held, as we have, that Johnson does not apply to the
advisory sentencing guidelines. Sometimes there is disagreement between judges about legal
issues, but that should not give rise to the unfounded accusations in some of the dissents in the
last few years about our rulings on applications to file successive motions.
12
Judge Martin’s dissent at pages 5-6 criticizes the “stacking” of St. Hubert’s two
§ 924(c) sentences in South Florida. St. Hubert was sentenced to 7 years on his first § 924(c)
conviction for using a firearm during a January 21 robbery and to the statutory mandatory
consecutive 25 years on his second § 924(c) conviction for using a firearm during a January 27
robbery. See St. Hubert, 909 F.3d at 339–40.
The dissent fails to mention that St. Hubert was indicted for 13 crimes, including six
separate § 924(c) firearm crimes, five separate armed robberies, and one attempted armed
robbery between December 23, 2014, and January 27, 2015. Id. In exchange for St. Hubert’s
plea to just two § 924(c) crimes, the government agreed to dismiss the 11 other counts.
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WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

Consider a hypothetical. A defendant is convicted of a federal crime and

sentenced to a term of imprisonment. His conviction and sentence are affirmed on

appeal. He brings a collateral challenge, see 28 U.S.C. § 2255(a), but it fails.

Perhaps he brings more than one collateral challenge; all of them fail. Eventually,

in some other case, the Supreme Court announces a new rule of law that applies

retroactively to cases on collateral review. But the new rule plainly cannot benefit

the prisoner—either because it does not apply to his situation or because applying

it would make no difference to his conviction or sentence. Even so, he applies to

this Court for permission to file a second, third, or umpteenth collateral challenge

based on the new rule. Does the Antiterrorism and Effective Death Penalty Act

require that we grant his application and create unnecessary work for the district

court? Judge Martin’s dissent appears to contend that the answer is “yes.” Our

Court has disagreed.

I join Judge Tjoflat’s opinion in full, but I write separately to answer our

colleague’s challenge and to defend our commonsense practice of denying

prisoners’ applications to file doomed collateral challenges that cannot possibly

bring them relief. The basis of our colleague’s argument that denying these

applications contravenes “the plain mandate” of the Act is not entirely clear.

Dissenting Op. of Martin, J., at 60. Her dissent draws an insistent but far from self-

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explanatory distinction between a “prima facie showing” and a “merits decision,”

and it suggests that we held in In re Holladay, 331 F.3d 1169 (11th Cir. 2003), that

our prima facie assessment of a prisoner’s application to file a second or successive

collateral challenge must not touch “the merits” of the claims the prisoner wishes

to raise. But we explained in Holladay itself—indeed, we said it was “manifestly

obvious”—that we would deny applications that had no “reasonable likelihood” of

resulting in relief. Id. at 1173. After all, whenever a circuit court denies an

application for a second or successive motion, it necessarily decides that the

application has no merit. And the circuit courts collectively deny thousands of

these applications on the merits every year.

To vindicate the strong interest in the finality of fully litigated criminal

convictions, the Antiterrorism and Effective Death Penalty Act imposes “stringent

requirements for the filing of a second or successive [collateral challenge],” id.

(quoting Bennett v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)), and, as

Judge Martin’s dissent acknowledges, it gives courts of appeals “a gatekeeping

function” with respect to the enforcement of those requirements, Dissenting Op. of

Martin, J., at 84. Before a federal prisoner may file a second or successive section

2255 motion in the district court, he must apply to “the appropriate court of

appeals” for permission to do so. 28 U.S.C. § 2244(b)(3)(A); see id. § 2255(h)

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(incorporating these procedures for federal prisoners). The court of appeals must

then “certif[y] as provided in section 2244” that the motion will “contain—

(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.”

Id. § 2255(h); see also id. § 2244(b)(2) (analogous requirements for state prisoners

with minor differences in wording). We are permitted to authorize a second or

successive challenge only if we “determine[] that the application makes a prima

facie showing that [it] satisfies the[se] requirements.” Id. § 2244(b)(3)(C).

Judge Martin’s dissent revolves around the three words “prima facie

showing,” but that phrase does not interpret itself. Often, a “prima facie case” or

“prima facie showing” refers to what a plaintiff must prove to shift the burden of

proof or production to the defendant. See Dissenting Op. of Martin, J., at 69 (citing

Black’s Law Dictionary for a definition in this vein). The dissent provides as two

examples the burden-shifting frameworks that govern claims of racial

discrimination in jury selection, see Batson v. Kentucky, 476 U.S. 79 (1986), and

workplace discrimination under Title VII of the Civil Rights Act, see McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dissenting Op. of Martin, J., at

69–71. In these frameworks, “prima facie showing” has a purely formal meaning:
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it defines the set of elements proof of which suffices to raise a presumption of

liability, subject to rebuttal if the defense meets some specified burden of its own.

But this formal sense of the phrase “prima facie showing” does not fit

section 2244(b)(3)(C). The statutory restrictions on second or successive collateral

challenges plainly do not set up a burden-shifting framework. A prisoner’s prima

facie showing of compliance with section 2255(h) does not create any presumption

that the government must rebut with an adequate showing of its own. Indeed, the

prima facie showing does not even create a presumption of compliance with

section 2255(h); the district court approaches that question de novo. See In re

Moss, 703 F.3d 1301, 1303 (11th Cir. 2013). So how does our “prima facie”

inspection of the prisoner’s application differ from the district court’s plenary

assessment? The Act demands an answer to this question, but the dissent’s

analogies to burden-shifting frameworks do not help us find it.

When “prima facie showing” cannot bear a formal definition, it sometimes

bears instead a functional meaning. For example, the Board of Immigration

Appeals describes the standard for reopening of removal proceedings as requiring

“a prima facie showing of eligibility” for the relief sought. In re L-O-G-, 21 I. & N.

Dec. 413, 415 (BIA 1996); see also Matter of Sipus, 14 I. & N. Dec. 229, 230 (BIA

1972) (referring to “a prima facie case for reopening”). Judge Martin’s dissent

provides this example, see Dissenting Op. of Martin, J., at 71–72, but it

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undermines the argument that “prima facie showing” has a rigid meaning that

categorically excludes consideration of the merits. The Board has made clear that

“[n]o hard and fast rule can be laid down as to what constitutes a sufficient

showing of a prima facie case for reopening.” Sipus, 14 I. & N. Dec. at 231; accord

L-O-G-, 21 I. & N. Dec. at 418 (“[T]here are no easy rules for deciding what

makes a prima facie case . . . and what does not.”).

Instead, in this context, a prima facie showing is simply whatever “satisf[ies]

[the Board] that it would be worthwhile to develop the issues further at a plenary

hearing on reopening.” Sipus, 14 I. & N. Dec. at 231. This standard is not blind to

the merits. On the contrary, it requires “a reasonable likelihood of success on the

merits” in the judgment of the Board, and, under this standard, the Board has

denied motions for reopening for a variety of merits-related reasons. L-O-G-, 21 I.

& N. Dec. at 420. For example, in Sipus, the movant’s “new facts” were plainly

inadequate to support eligibility for relief, so the Board could not “infer . . . that

she [might] be able to prove [eligibility] if given a chance at a reopened hearing.”

14 I. & N. Dec. at 231. The Board has also denied a motion for reopening based on

its discretionary determination in the first instance that the movant had been

convicted of “a particularly serious crime,” making him legally ineligible for relief.

In re S-V-, 22 I. & N. Dec. 1306, 1309 (BIA 2000), disapproved on other grounds

by Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006).

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In the foundational decision about section 2244(b)(3)(C), the Seventh

Circuit interpreted it to include a similar “worthwhileness” standard: “By ‘prima

facie showing’ we understand . . . simply a sufficient showing of possible merit to

warrant a fuller exploration by the district court.” Bennett, 119 F.3d at 469. The

Seventh Circuit made clear that this definition did not treat “prima facie showing”

as a legal term of art with a formal meaning because it was articulated “without

guidance in the statutory language or history or case law.” Id. In Holladay, we

adopted this language from Bennett, see 331 F.3d at 1173–74, and every other

numbered circuit has done the same. See Rodriguez v. Superintendent, Bay State

Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998); Bell v. United States, 296 F.3d 127,

128 (2d Cir. 2002); Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir. 2007); In re

Williams, 330 F.3d 277, 281 (4th Cir. 2003); Reyes-Requena v. United States, 243

F.3d 893, 899 (5th Cir. 2001); In re Lott, 366 F.3d 431, 432–33 (6th Cir. 2004);

Johnson v. United States, 720 F.3d 720, 720 (8th Cir. 2013); Woratzeck v. Stewart,

118 F.3d 648, 650 (9th Cir. 1997); United States v. Murphy, 887 F.3d 1064, 1068

(10th Cir. 2018).

Although Judge Martin’s dissent invokes the Bennett-Holladay standard to

lament the supposed good old days “when this Court honored the statutorily

imposed limitations of a prima facie review,” Dissenting Op. of Martin, J., at 73,

the Seventh Circuit in Bennett did not describe its definition as especially

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permissive or as one that required courts of appeals to close their eyes to the

impossibility of relief. On the contrary, when Donald Bennett sought permission to

file a third section 2255 motion under the “newly discovered evidence” gateway

for successive motions, see 28 U.S.C. § 2255(h)(1), the Bennett court stressed that

he bore a “very heavy burden” of “ha[ving] to show, albeit only prima facie, that

the newly discovered evidence would have established [his innocence] by clear and

convincing evidence,” and it denied his application because the evidence he relied

on was plainly inadequate. 119 F.3d at 469. In part, Bennett’s burden was

especially heavy because he wanted to relitigate an insanity defense that itself

required clear and convincing proof, so his burden of proof was clear-and-

convincing squared. See id. But Bennett makes clear that a court of appeals’ “prima

facie” inspection of an application under section 2255(h) does not require it to

close its eyes to the merits altogether. After all, how could “a fuller exploration” be

“warrant[ed],” id., when it would serve only to waste the district court’s time and

be of no use to the prisoner?

Perhaps our colleague would limit the Bennett court’s willingness to

acknowledge that a motion is certainly doomed to the “newly discovered evidence”

gateway, but she cannot take that position and eulogize Holladay at the same time

because Holladay followed the same approach with respect to the “new rule”

gateway, 28 U.S.C. § 2255(h)(2); see also id. § 2244(b)(2)(A). When Alabama

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death-row inmate Glenn Holladay sought leave to file a second federal habeas

petition based on the Supreme Court’s novel holding that the Constitution bars the

execution of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304 (2002), we

held that Atkins provided a retroactive new rule of constitutional law, but

“[i]mportantly” that holding “[did] not terminate our analysis.” 331 F.3d at 1173.

Describing the identification of a new rule as “merely . . . the minimum showing

that [a petitioner] must make,” we held that it was “manifestly obvious that in

order to make a prima facie showing” based on Atkins, “Holladay also must

demonstrate . . . a reasonable likelihood that he [was] in fact mentally retarded.”

Id.; accord In re Morris, 328 F.3d 739, 740–41 (5th Cir. 2003); In re Bowling, 422

F.3d 434, 436 (6th Cir. 2005). “Were it otherwise,” we reasoned, “literally any

prisoner under a death sentence could bring an Atkins claim in a second or

successive petition,” and “[n]o rational argument can possibly be made” that the

Act requires us to permit the inundation of the district courts with wholly meritless

second or successive collateral challenges every time the Supreme Court

announces a new rule. Holladay, 331 F.3d at 1173 n.1.

Under Holladay’s sensible regime, a prisoner cannot discharge his prima

facie burden merely by invoking a new rule; as we phrased the standard in a later

decision, he must also “show a reasonable likelihood that he would benefit from

the new rule he seeks to invoke in a second or successive [challenge].” In re

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Henry, 757 F.3d 1151, 1162 (11th Cir. 2014); cf. Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009) (distinguishing legal conclusions in a complaint from the “show[ing]”

of entitlement to relief required by Federal Rule of Civil Procedure 8(a)(2)). To put

it tersely, the prisoner must show that the new rule has some “bearing on his case.”

Henry, 757 F.3d at 1162.

Judge Martin may disagree with Holladay—as the Tenth Circuit did in a

decision that her dissent cites favorably, see Ochoa v. Sirmons, 485 F.3d 538, 545

(10th Cir. 2007)—but in that case she should not invoke its authority while

rejecting its rule, which we applied in all of the orders to which her dissent takes

exception. See Dissenting Op. of Martin, J., at 75–77. For example, a prisoner

whose sentence under the Armed Career Criminal Act “does not turn on the

validity of the residual clause,” In re Thomas, 823 F.3d 1345, 1349 (11th Cir.

2016), is a prisoner who cannot possibly benefit from the Supreme Court’s holding

that the residual clause is unconstitutionally vague, see Johnson v. United States,

135 S. Ct. 2551 (2015). So is a prisoner whose conviction for carrying a firearm

during and in relation to a crime of violence, 18 U.S.C. § 924(c), or whose

sentence under the former career-offender sentencing guideline, United States

Sentencing Guidelines Manual §§ 4B1.1–4B1.2 (Nov. 2015), would stand whether

or not Johnson affects section 924(c) or the career-offender guideline. In declining

to permit “literally any prisoner under [an Armed Career Criminal Act, section

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924(c), or career-offender] sentence [to] bring a[] [Johnson] claim in a second or

successive petition,” Holladay, 331 F.3d at 1173 n.1, we have not “exceeded [our]

statutory mandate,” Dissenting Op. of Martin, J., at 74. Instead, we have executed

our statutory mandate as we interpreted it in Holladay, which, as the dissent

reminds us, “is still binding precedent for our Circuit.” Id. at 73.

The logic of Holladay exposes any rigid dichotomy between a prisoner’s

“prima facie showing” and “the merits” of his claim as untenable. True, whether

Johnson or any other new rule that a prisoner invokes really supports his claim is a

question that relates to “the merits.” But it is no less true that a prisoner’s prima

facie showing must include the demonstration that his motion will “contain,” 28

U.S.C. § 2255(h)(2), or “rel[y] on,” id. § 2244(b)(2)(A), a new rule of

constitutional law, and that requirement demands more than that the prisoner write

the magic word “Johnson.” If a new rule plainly does not apply to a prisoner’s

situation or applying it would make no difference to his conviction and sentence,

then he necessarily cannot “show a reasonable likelihood that that he would benefit

from the new rule,” and his application fails at the starting gate for the same reason

his collateral challenge would fail on the merits. Henry, 757 F.3d at 1162. So it is

no wonder that we and other courts have frequently referred to “the merits” in

asking whether an application satisfies section 2255(h). See, e.g., In re Baptiste,

828 F.3d 1337, 1340 (11th Cir. 2016) (calling the denial of a previous application

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raising the same claim a “reject[ion] on the merits”); Henry, 757 F.3d at 1157 n.9

(“As the dissenting opinion sees the case, Henry should be entitled to file a second

or successive petition under § 2244(b)(2) because he’s made a sufficient merits

showing.”); id. at 1169 (Martin, J., dissenting) (“I must also address the merits of

Mr. Henry’s case.”); id. at 1170 (“I view the merits . . . differently than the

Majority.”); Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) (“reach[ing]

the merits” of a prisoner’s application for leave to file a second or successive

motion).

There is nothing remotely strange about this partial overlap between a

threshold inquiry and the merits. Consider “the somewhat analogous certificate of

appealability . . . context,” In re Saint Fleur, 824 F.3d 1337, 1343 (11th Cir. 2016)

(Martin, J., concurring), in which “[a] certificate of appealability may issue . . .

only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has

“emphasized” that this inquiry “is not coextensive with a merits analysis.” Buck v.

Davis, 137 S. Ct. 759, 773 (2017). But as the Court explained in the same

discussion, “[o]f course when a court of appeals . . . determines that a prisoner’s

claim is not even debatable, that necessarily means the prisoner has failed to show

that his claim is meritorious.” Id. at 774. Indeed, the Supreme Court itself has

affirmed the denial of a certificate of appealability based on its determination that a

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habeas petitioner’s claim failed as a matter of constitutional law. See Weeks v.

Angelone, 528 U.S. 225, 234 (2000) (posing the dispositive question “whether the

Constitution requires anything more” than the jury instructions the petitioner

challenged and “hold[ing] that it does not”). In the second-or-successive context as

in the appealability framework, that a threshold procedural inquiry and the merits

are not coextensive does not mean that they do not overlap.

Even in the Batson and Title VII examples—which, as I have explained, do

not clarify what section 2244(b)(3)(C) means when it refers to “a prima facie

showing”—a plaintiff’s prima facie case is not independent of “the merits.” If a

court rejects a Batson claim because the claimant has failed to establish the

requisite prima facie showing, nobody would dispute that the court has rejected

that claim on the merits. See Brown v. Alexander, 543 F.3d 94, 103 (2d Cir. 2008)

(applying the framework for claims “adjudicated on the merits in [s]tate court,” 28

U.S.C. § 2254(d), to a “decision that a prima facie case had not been made out

under Batson”); Franklin v. Sims, 538 F.3d 661, 666 (7th Cir. 2008) (same). And if

a court grants summary judgment against a Title VII claim because the plaintiff has

failed to discharge his prima facie burden under McDonnell Douglas, nobody

would dispute that that claim too has been decided on the merits. See Morón-

Barradas v. Dep’t of Educ. of P.R., 488 F.3d 472, 478–80 (1st Cir. 2007) (granting

preclusive effect to a Puerto Rico court’s determination that a Title VII plaintiff

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had failed to establish a prima facie case of discrimination). In each of these cases,

any distinction between “the merits question” and “the prima facie showing alone”

collapses when the plaintiff fails at step one. Dissenting Op. of Martin, J., at 70;

see also Jackson v. United States, 875 F.3d 1089, 1091 n.4 (11th Cir. 2017)

(explaining that the dismissal of a complaint with prejudice for failure to state a

claim is ordinarily “an adjudication on the merits”).

So what remains of Judge Martin’s critique after we discard the mistaken

premise that merits are merits, threshold inquiries are threshold inquiries, and

never the twain shall meet? Her dissent objects to eight published orders because

they decided that particular offenses were crimes of violence or violent felonies,

see Dissenting Op. of Martin, J., at 75–77, but it never explains how it is

inconsistent with our gatekeeping function under section 2255(h) to deny

applications based on questions of law—which we usually think it is our job to

answer—and a routine examination of judicial records—which we must often

wade into in any event to determine whether a motion would indeed be “second or

successive.” See Evans-García v. United States, 744 F.3d 235, 240 (1st Cir. 2014)

(“[A] circuit court should deny certification where it is clear as a matter of law, and

without the need to consider contested evidence, that the petitioner’s identified

constitutional rule does not apply to the petitioner’s situation.”); cf. S-V-, 22 I. &

N. Dec. at 1309 (finding no “prima facie eligibility for withholding of removal”

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based on the Board’s discretionary first-instance determination that the movant’s

robbery conviction was for a “particularly serious crime”). The dissent protests that

“the heavily abridged second or successive application procedures” impair our

ability to make a reasoned decision, Dissenting Op. of Martin, J., at 76, but it never

explains why 30 days is too little time for three judges with the help of their law

clerks and staff attorneys to research and decide the discrete legal issue whether a

particular offense is or is not a crime of violence, an inquiry with which our Court

has plenty of experience. See id. at 61 (observing that “[t]he issue of what

constitutes a crime of violence . . . has been the subject of extensive consideration

in this Circuit”).

This Court is not the only circuit that has published orders denying

prisoners’ applications on the ground that Johnson could not benefit them because

their predicate offenses were crimes of violence. See In re Irby, 858 F.3d 231 (4th

Cir. 2017); Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016). And, as long as

we are on the subject of persuasive authority, several of our sister circuits have

disagreed with Judge Martin’s “permissive[]” notion of how the application

process should work in other ways. Dissenting Op. of Martin, J., at 73. For

example, five circuits—four not counting ours—have held that the Act permits

courts of appeals to deny second or successive collateral challenges based on

manifest untimeliness, at least in certain circumstances. See In re Williams, 759

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F.3d 66, 68–69 (D.C. Cir. 2014); In re Vassell, 751 F.3d 267, 271 (4th Cir. 2014);

In re Lewis, 484 F.3d 793, 798 (5th Cir. 2007); In re Hill, 437 F.3d 1080, 1083

(11th Cir. 2006); Outlaw v. Sternes, 233 F.3d 453, 455 (7th Cir. 2000); see also In

re Jackson, 826 F.3d 1343, 1350 & n.8 (11th Cir. 2016) (acknowledging that a

“hands-off approach” with respect to timeliness “will not suit every application”

and reaffirming Hill). The First Circuit has held that it can rely on judicial records

to determine that an applicant is outside the scope of a new rule. See Evans-

García, 744 F.3d at 240. And the Fifth and Eighth Circuits have held that a second

or successive collateral challenge does not “contain” or “rel[y] on” a new rule

when it “depends on recognition of a second new rule” that would be an extension

of the first. Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir. 2016); accord

In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016). Now is not the time to examine

whether all of these decisions were correct; lest we forget, the Court today is

denying rehearing en banc of a direct appeal. But it is significant that the dissent’s

minimalist concept of our gatekeeping function would unsettle not just our own

practices but also those of many of our sister circuits.

The dissent complains that “[t]he members of this Court are bound to treat

[our published orders] as binding precedent in this Circuit, unless and until the

Supreme Court or this Court sitting en banc reverses each of them, one by one,”

but the same is true of all of our precedents. Dissenting Op. of Martin, J., at 83. Of

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course, Judge Martin and our other dissenting colleagues are free to disagree with

the legal conclusions that panels have reached in the course of denying

applications to file second or successive motions. But if they do, they would be

better served by trying to persuade the rest of us to reconsider those holdings en

banc, see Concurring Op. of Tjoflat, J., at 17–22, than by rehashing their position

that we cannot deny the doomed applications of prisoners who cannot achieve

relief, compare, e.g., Dissenting Op. of Wilson, J., at 53–57, and Dissenting Op. of

Martin, J., at 64–84, with Ovalles v. United States, 905 F.3d 1231, 1266–73 (11th

Cir. 2018) (en banc) (Martin, J., dissenting); In re Williams, 898 F.3d 1095, 1100–

05 (11th Cir. 2018) (Wilson, J., specially concurring); id. at 1105–10 (Martin, J.,

specially concurring); In re Hernandez, 857 F.3d 1162, 1165–66 (11th Cir. 2017)

(Martin, J., concurring in result); In re Clayton, 829 F.3d 1254, 1263–67 (11th Cir.

2016) (Martin, J., concurring in result); In re McCall, 826 F.3d 1308, 1311–12

(11th Cir. 2016) (Martin, J., concurring); In re Colon, 826 F.3d 1301, 1308 (11th

Cir. 2016) (Martin, J., dissenting); and Saint Fleur, 824 F.3d at 1341–44 (Martin,

J., concurring).

Finally, some of the complaints in Judge Martin’s dissent less reflect

disagreement with our precedents than dissatisfaction with Congress’s policy

choices. The dissent laments that the Act gives prisoners only “one chance to

collaterally attack their sentence as a matter of right” and that the chance “comes

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too soon” for some convicts with lengthy sentences, Dissenting Op. of Martin, J.,

at 64, but the statutory system of alternating limitations periods constitutes an

integral part of Congress’s orderly regulation of federal postconviction review, see

28 U.S.C. §§ 2244(d), 2255(f). The dissent charges us with abusing our

“gatekeeping function” “to lock the gate and throw away the key,” Dissenting Op.

of Martin, J., at 84, but we have done no more than to execute our gatekeeping

function under the Act as we have understood it at least ever since we held in

Holladay that not every application that incants a new rule opens the lock. The

dissent protests that “prisoners sentenced in Alabama, Florida and Georgia may be

serving illegal sentences for which they have no remedy,” id., but Congress has

emphatically rejected an error-correction-at-all-costs model of postconviction

review.

Instead, Congress has decided that collateral litigation, like all things, must

eventually come to an end. And we are bound to respect that mandate.

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JORDAN, Circuit Judge, concurring in the denial of rehearing en banc.
The panel in this case has held that published orders issued by three-judge

panels on applications for leave to file second or successive habeas corpus petitions

or motions to vacate, pursuant to 28 U.S.C. §§ 2244(b)(2)-(3), 2255(h), constitute

binding precedent in our circuit. See United States v. St. Hubert, 909 F.3d 335, 345-

46 (11th Cir. 2018). I voted against rehearing this case en banc because I cannot

think of a workable common-law principle that denies precedential effect to such

orders. If there is going to be some change in the effect given to these orders, I

believe that will need to be done by way of a court rule (e.g., a rule providing [as we

have done with unpublished opinions] that such orders do not have precedential

effect, or a rule providing that such orders will only be binding in the second or

successive application context, or a rule providing that such orders can be published

only when there has been adversarial briefing).1

Nevertheless, I have institutional concerns about our recent practice of

publishing so many of these orders. I include myself as part of the problematic trend,

as I have authored one of these orders, see In re Moss, 703 F.3d 1301 (11th Cir.

2013), and have also been a member of panels which have issued others.

******

1
I am not aware of any rules in other circuits addressing this issue.
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Applications under §§ 2244(b)(2)-(3) and 2255(h) are different in significant

respects from the matters usually handled by three-judge panels. Those differences

strongly suggest that we should exercise more caution in deciding to publish an order

disposing of an application, particularly on substantive issues of first impression.

First, the applications must be decided within 30 days of filing. See §

2244(b)(3)(D). Although this time limit is not mandatory in the jurisdictional sense,

see, e.g., In re Davis, 565 F.3d 810, 813 (11th Cir. 2009) (order issued in April of

2009 for an application filed in October of 2008 asserting actual innocence), we try

very hard to meet the compressed timeline imposed by Congress. But, practically

speaking, we do not have 30 full days to do our work. The panel usually receives

the staff attorney memorandum on the application (which is often pro se) a week or

two from the date of filing, leaving only two to three weeks to rule on the application

(while, of course, tending to numerous other matters, including other applications).

This abbreviated schedule, which does not generally exist with respect to the other

motions we handle on a daily or weekly basis, can lead to rulings without sufficient

time for analysis and reflection. And that, in turn, can result in mistakes.

Second, in this circuit the applications are almost always ruled upon without

adversarial participation or briefing. Sometimes we decide only on the basis of a

pro se litigant’s submission, as supplemented by a staff attorney memorandum. In

a system like ours, that means that we may miss something important (e.g., critical

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parts of the district court record, or an issue we did not think of ourselves) on the

quick road to decision and publication.

Third, the applications result in decisions that are not generally reviewable.

Pursuant to § 2244(b)(3)(E), orders on applications are not appealable and cannot be

the subject of a petition for rehearing or for a writ of certiorari. Panels have on

occasion revisited their orders sua sponte (for example, when the staff attorney’s

office has called a panel’s attention to a mistake), but relying on a panel to identify

and recognize its own error without assistance from the parties once the application

is adjudicated is certainly not the norm in appellate procedure. I recognize that it is

an open question whether an order disposing of an application can be the subject of

a sua sponte en banc proceeding. But even if that limited avenue exists, the absence

of typical channels of review provides an additional institutional reason to publish

fewer of these now-binding orders.

In sum, when we review and rule on applications pursuant to §§ 2244(b) and

2255(h), “major aspects of the normal appellate process [are] absent.” United States

v. Glover, 731 F.2d 41, 49 (D.C. Cir. 1984) (Mikva, J., dissenting about then-existing

summary affirmance procedures). “There are no briefs, no oral arguments, [and] no

collegiality of the decisional process. There is no time for deliberation, and very

little dialogue on the merits, on the process, or the result.” Id. at 50. We are stuck

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with the 30-day limit that Congress has set for us, but that deadline should mean less

published orders, not more.

*****

In the last five years (2013-18) we lead the country by a significant margin in

the number of published orders issued under §§ 2244(b)(2)-(3) and 2255(h). In that

five-year period, ending April 1, 2018, we have published 45 such orders, while all

of the other circuits combined have published 80 orders. The next closest circuits to

ours in publication are the Fifth Circuit with 14 and the Sixth Circuit with 12. The

remaining circuits have fewer than 10 each: First Circuit (7); Second Circuit (6);

Third Circuit (3); Fourth Circuit (6); Seventh Circuit (8); Eighth Circuit (9); Ninth

Circuit (7); Tenth Circuit (7); and D.C. Circuit (1). And a number of the published

orders in the other circuits were issued only after adversarial briefing and/or oral

argument. 2

Two years ago, in the wake of Johnson v. United States, 135 S.Ct. 2551

(2015), and Welch v. United States, 136 S.Ct. 1257 (2016), we received around 2,000

applications under §§ 2244(b)(2)-(3) and 2255(h) (mostly filed by federal prisoners

under § 2255(h)). Given this avalanche of filings, and the 30-day clock, there were

days when I (and probably every judge then on the court) would review 40-50

2
The published orders from our court and from the other circuits during this five-year
period are listed in the attached appendix.
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applications and have time for little else. Yet, despite the overwhelming number of

applications we received, and the very limited time we had to resolve them, in 2016

we managed to publish 35 of our orders. In that same year, our sister circuits

published a total of just 20 orders: First Circuit (0); Second Circuit (0); Third Circuit

(0); Fourth Circuit (3); Fifth Circuit (4); Sixth Circuit (3); Seventh Circuit (4); Eighth

Circuit (3); Ninth Circuit (1); Tenth Circuit (2); and D.C. Circuit (0). If the other

circuits can get by without adding to the pages in the Federal Reporter, we should

be able to as well.

******

Publishing orders issued under §§ 2244(b)(2)-(3) and 2255(h) sometimes

makes sense. For example, in In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir.

2003), we explained what a “prima facie case” means under § 2244(b). Given that

the “prima facie case” requirement applies to all applications filed, it was important

to have a general governing standard for all panels to apply.

But there are downsides to publishing too many of these orders, which now

constitute binding precedent. I hope that in the coming years we will use the

publication option sparingly.

Appendix of Published Orders under 28 U.S.C. §§ 2244(b) & 2255(h) in
the Circuit Courts of Appeals from April 1, 2013, to April 1, 2018
First Circuit

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Pagan-San Miguel v. United States, 736 F.3d 44 (1st Cir. 2013)
Evans-Garcia v. United States, 744 F.3d 235 (1st Cir. 2014)
Butterworth v. United States, 775 F.3d 459 (1st Cir. 2015)
Pakala v. United States, 804 F.3d 139 (1st Cir. 2015)
Bucci v. United States, 809 F.3d 23 (1st Cir. 2015)
Moore v. United States, 871 F.3d 72 (1st Cir. 2017)
Hardy v. United States, 871 F.3d 85 (1st Cir. 2017)

Second Circuit
Gallagher v. United States, 711 F.3d 315 (2d Cir. 2013)
United States v. Redd, 735 F.3d 88 (2d Cir. 2013)
Herrera-Gomez v. United States, 755 F.3d 142 (2d Cir. 2014)
Marmolejos v. United States, 789 F.3d 66 (2d Cir. 2015)
Carranza v. United States, 794 F.3d 237 (2d Cir. 2015)
Washington v. United States, 868 F.3d 64 (2d Cir. 2017)

Third Circuit
In re Pendleton, 732 F.3d 280 (3d Cir. 2013) (adversarial briefing/oral argument)
United States v. Winkelman, 746 F.3d 134 (3d Cir. 2014)
In re Hoffner, 870 F.3d 301 (3d Cir. 2017)

Fourth Circuit
In re Vassell, 751 F.3d 267 (4th Cir. 2014) (adversarial briefing/oral argument)
In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (adversarial briefing/oral argument)
In re McFadden, 826 F.3d 706 (4th Cir. 2016) (adversarial briefing/oral argument)
In re Wright, 826 F.3d 774 (4th Cir. 2016) (adversarial briefing/oral argument)
In re Irby, 858 F.3d 231 (4th Cir. 2017) (adversarial briefing/oral argument)
In re Phillips, 879 F.3d 542 (4th Cir. 2018) (adversarial briefing/oral argument)

Fifth Circuit

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In re Kemper, 735 F.3d 211 (5th Cir. 2013)
In re Campbell, 750 F.3d 523 (5th Cir. 2014)
In re Coleman, 768 F.3d 367 (5th Cir. 2014)
In re Jackson, 776 F.3d 292 (5th Cir. 2015)
In re Young, 789 F.3d 518 (5th Cir. 2015)
In re Chase, 804 F.3d 738 (5th Cir. 2015)
In re Williams, 806 F.3d 322 (5th Cir. 2015)
In re Fields, 826 F.3d 785 (5th Cir. 2016) (adversarial briefing)
In re Arnick, 826 F.3d 787 (5th Cir. 2016)
In re Hensley, 836 F.3d 504 (5th Cir. 2016)
In re Lott, 838 F.3d 522 (5th Cir. 2016)
In re Cathey, 857 F.3d 221 (5th Cir. 2017) (adversarial briefing)
In re Dockery, 869 F.3d 356 (5th Cir. 2017)
In re Rodriguez, 885 F.3d 915 (5th Cir. 2018)

Sixth Circuit
In re Liddell, 722 F.3d 737 (6th Cir. 2013)
In re Mazzio, 756 F.3d 487 (6th Cir. 2014) (adversarial briefing)
In re Watkins, 810 F.3d 375 (6th Cir. 2015)
In re Embry, 831 F.3d 377 (6th Cir. 2016) (adversarial briefing)
In re Patrick, 833 F.3d 584 (6th Cir. 2016) (adversarial briefing)
In re Sargent, 837 F.3d 675 (6th Cir. 2016) (adversarial briefing)
In re Tibbetts, 869 F.3d 403 (6th Cir. 2017) (adversarial briefing)
In re Coley, 871 F.3d 455 (6th Cir. 2017) (adversarial briefing)
In re Conzelmann, 872 F.3d 375 (6th Cir. 2017)
In re Campbell, 874 F.3d 454 (6th Cir. 2017) (adversarial briefing)
In re Lee, 880 F.3d 242 (6th Cir. 2018)
In re Black, 881 F.3d 430 (6th Cir. 2018) (adversarial briefing)

Seventh Circuit
Croft v. Williams, 773 F.3d 170 (7th Cir. 2014)

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Price v. United States, 795 F.3d 731 (7th Cir. 2015) (adversarial briefing)
Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016) (adversarial briefing)
Hill v. United States, 827 F.3d 560 (7th Cir. 2016) (adversarial briefing)
Morris v. United States, 827 F.3d 696 (7th Cir. 2016) (adversarial briefing)
Dawkins v. United States, 829 F.3d 549 (7th Cir. 2016) (adversarial briefing)
Kelly v. Brown, 851 F.3d 686 (7th Cir. 2017) (adversarial briefing)
Susinka v. United States, 855 F.3d 728 (7th Cir. 2017)

Eighth Circuit
Williams v. United States, 705 F.3d 293 (8th Cir. 2013)
Johnson v. United States, 720 F.3d 720 (8th Cir. 2013)
Woods v. United States, 805 F.3d 1152 (8th Cir. 2015)
Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014)
Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016)
Holder v. United States, 836 F.3d 891 (8th Cir. 2016)
Allen v. United States, 836 F.3d 894 (8th Cir. 2016)
Davis v. Kelley, 854 F.3d 967 (8th Cir. 2017)
Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017)

Ninth Circuit
Jones v. Ryan, 733 F.3d 825 (9th Cir. 2013)
Hughes v. United States, 770 F.3d 814 (9th Cir. 2014) (adversarial briefing/oral argument)
Ezell v. United States, 778 F.3d 762 (9th Cir. 2015) (adversarial briefing)
Gage v. Chappell, 793 F.3d 1159 (9th Cir. 2015) (adversarial briefing/oral argument)
Orona v. United States, 826 F.3d 1196 (9th Cir. 2016) (adversarial briefing)
Sherrod v. United States, 858 F.3d 1240 (9th Cir. 2017) (adversarial briefing)
Arazola-Galea v. United States, 876 F.3d 1257 (9th Cir. 2017) (adversarial briefing)

Tenth Circuit
In re Graham, 714 F.3d 1181 (10th Cir. 2013)
In re Weathersby, 717 F.3d 1108 (10th Cir. 2013)

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In re Payne, 733 F.3d 1027 (10th Cir. 2013)
In re Gieswein, 802 F.3d 1143 (10th Cir. 2015)
In re Encinias, 821 F.3d 1224 (10th Cir. 2016)
In re Barrett, 840 F.3d 1223 (10th Cir. 2016)
In re Jones, 847 F.3d 1293 (10th Cir. 2017)

Eleventh Circuit
In re Moss, 703 F.3d 1301 (11th Cir. 2013)
In re Morgan, 713 F.3d 1365 (11th Cir. 2013)
In re Hill, 715 F.3d 284 (11th Cir. 2013)
In re Henry, 757 F.3d 1151 (11th Cir. 2014)
In re Lambrix, 776 F.3d 789 (11th Cir. 2015)
In re Hill, 777 F.3d 1214 (11th Cir. 2015)
In re Rivero, 797 F.3d 986 (11th Cir. 2015)
In re Everett, 797 F.3d 1282 (11th Cir. 2015)
In re Starks, 809 F.3d 1211 (11th Cir. Jan. 8, 2016)
In re Bolin, 811 F.3d 403 (11th Cir. Jan. 4, 2016)
In re Johnson, 814 F.3d 1259 (11th Cir. Feb. 26, 2016)
In re Franks, 815 F.3d 1281 (11th Cir. Jan. 6, 2016)
In re Robinson, 822 F.3d 1196 (11th Cir. Apr. 19, 2016)
In re Thomas, 823 F.3d 1345 (11th Cir. May 25, 2016)
In re Griffin, 823 F.3d 1350 (11th Cir. May 25, 2016)
In re Pinder, 824 F.3d 977 (11th Cir. Jun. 1, 2016)
In re Hines, 824 F.3d 1334 (11th Cir. Jun. 8, 2016)
In re St. Fleur, 824 F.3d 1337 (11th Cir. Jun. 8, 2016)
In re Adams, 825 F.3d 1283 (11th Cir. Jun. 15, 2016)
In re Hires, 825 F.3d 1297 (11th Cir. Jun. 15, 2016)
In re Rogers, 825 F.3d 1335 (11th Cir. Jun. 17, 2016)
In re Colon, 826 F.3d 1301 (11th Cir. Jun. 24, 2016)
In re McCall, 826 F.3d 1308 (11th Cir. Jun. 17, 2016)
In re Jackson, 826 F.3d 1343 (11th Cir. Jun. 24, 2016)

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In re Williams, 826 F.3d 1351 (11th Cir. Jun. 24, 2016)
In re Parker, 827 F.3d 1286 (11th Cir. Jul. 7, 2016)
In re Gordon, 827 F.3d 1289 (11th Cir. Jul. 8, 2016)
In re Sapp, 827 F.3d 1334 (11th Cir. Jul. 7, 2016)
In re Baptiste, 828 F.3d 1337 (11th Cir. Jul. 13, 2016)
In re Clayton, 829 F.3d 1254 (11th Cir. Jul. 18, 2016)
In re Smith, 829 F.3d 1276 (11th Cir. Jul. 18, 2016)
In re Burgest, 829 F.3d 1285 (11th Cir. Jul. 21, 2016)
In re Watt, 829 F.3d 1287 (11th Cir. Jul. 21, 2016)
In re Anderson, 829 F.3d 1290 (11th Cir. Jul. 22, 2016)
In re Davis, 829 F.3d 1297 (11th Cir. Jul. 21, 2016)
In re Gomez, 830 F.3d 1225 (11th Cir. Jul. 25, 2016)
In re Sams, 830 F.3d 1234 (11th Cir. Jul. 26, 2016)
In re Moore, 830 F.3d 1268 (11th Cir. Jul. 27, 2016)
In re Bradford, 830 F.3d 1273 (11th Cir. Jul. 27, 2016)
In re Jones, 830 F.3d 1295 (11th Cir. Jul. 27, 2016)
In re Chance, 831 F.3d 1335 (11th Cir. Aug. 2, 2016)
In re Parker, 832 F.3d 1250 (11th Cir. Aug. 10, 2016)
In re Hunt, 835 F.3d 1277 (11th Cir. Jul. 18, 2016)
In re Hernandez, 857 F.3d 1162 (11th Cir. 2017)
In re Welch, 884 F.3d 1319 (11th Cir. 2018)

D.C. Circuit
In re Williams, 759 F.3d 66 (D.C. Cir. 2014) (adversarial briefing/oral argument)

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WILSON, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit Judges,
joined as to Part II by ROSENBAUM, Circuit Judge, dissenting from the denial of
rehearing en banc:

I.

Before the Supreme Court decided Sessions v. Dimaya, 138 S. Ct. 1204

(2018), a panel of this Court attempted to sustain the constitutionality of 18 U.S.C.

§ 924(c) and Mr. St. Hubert’s convictions under it. See generally United States v.

St. Hubert (St. Hubert I), 883 F.3d 1319 (11th Cir. 2018), vacated and replaced,

909 F.3d 335 (11th Cir. 2018). In pursuit of that goal, the panel: (A) relied on two

published panel orders, which had been decided based on forty-three and ninety-

eight words of argument, respectively, see id. at 1328–29; (B) held that attempting

to commit a crime of violence is itself a crime of violence, see id. at 1333–34; (C)

suggested that we use the modified categorical approach instead of the categorical

approach, see id. at 1334–36; and (D) attempted to predict what the Supreme Court

would hold in Dimaya, concluding that “no matter the outcome” of Dimaya,

§ 924(c) would stand. See id. at 1336–37.

The panel has now backed away from some of those holdings. And for good

reason—it is difficult to predict what the Supreme Court will do. The Supreme

Court in Dimaya “demolished” the superficial differences between § 924(c),

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Johnson’s ACCA, and Dimaya’s § 16(b) on which the St. Hubert I opinion relied.1

Likewise, the panel now embraces the conduct-based approach that this Court

adopted in Ovalles II, see 905 F.3d at 1251–52, without mention of its previous

unwavering defense of the categorical approach and the modified categorical

approach. Compare United States v. St. Hubert (St. Hubert II), 909 F.3d 335, 344–

46 (11th Cir. 2018), with St. Hubert I, 883 F.3d at 1330–31, 1334–37; see also

Ovalles I, 861 F.3d at 1268–69 (applying the categorical approach without

question).

Neither Ovalles II nor St. Hubert II explain what has changed since Ovalles I

or St. Hubert I, or since we first applied the categorical approach to § 924(c) in

United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013). This is, I suspect,

because nothing has changed, except that Justice Thomas wrote a strong dissent in

Dimaya. See 138 S. Ct. at 1242–59 (Thomas, J., dissenting). This dissent took

1
See Ovalles v. United States (Ovalles II), 905 F.3d 1231, 1233–34 (11th Cir. 2018) (en
banc); see also En Banc Oral Argument Recording for Ovalles II, 11th Cir. No. 17-10172, at
58:32, http://www.ca11.uscourts.gov/system/files_force/oral_argument _recordings/17-
10172.mp3?download=1 (“With all due respect to the panel . . . I think that Dimaya fairly well
demolishes the textual differences that the panel here identified.”). The original St. Hubert
opinion incorporated the superficial distinctions proffered by the original Ovalles panel opinion
in distinguishing § 924(c) from the ACCA. See St. Hubert I, 883 F.3d at 1328. St. Hubert I
offered similar differences between § 924(c) and Dimaya’s § 16(b). Compare id. at 1336–37,
with Ovalles v. United States (Ovalles I), 861 F.3d 1257, 1265–67 (11th Cir. 2017), vacated, 889
F.3d 1259 (11th Cir. 2018) (en banc). None of these distinctions survive Dimaya. See generally
Ovalles II, 905 F.3d at 1239 (“In short, in the course of rebuffing the government’s attempts to
distinguish § 16’s residual clause from the ACCA’s, the Dimaya Court explicitly rejected the
very same arguments that the panel in this case had adopted as a means of distinguishing
§ 924(c)(3)’s residual clause—calling them minor linguistic disparities that didn’t make any real
difference.” (alteration adopted and internal quotation marks omitted)).
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issue with statutory language that has not changed in at least twelve years, well

before McGuire issued. I find it odd, therefore, that this Court now holds that

Justice Thomas’s dissent drawing attention to the unchanged language could (or

“must”) suddenly and unexpectedly trigger the doctrine of constitutional doubt.

Cf. Ovalles II, 905 F.3d at 1238–39. Indeed, no other circuit has so contorted itself

to salvage § 924(c), despite our en banc finding that such an interpretation is

legally required. Id. at 1244 (concluding that § 924(c)’s residual clause “must” be

“read to incorporate a conduct-based interpretation” under the constitutional doubt

cannon). Contra United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018)

(“Dimaya nowise calls into question [the] requirement of a categorical approach

[for § 924(c)].”); United States v. Salas, 889 F.3d 681, 685–86 (10th Cir. 2018)

(applying categorical approach to § 924(c) and invalidating that provision, after

Dimaya).

But Judge Jill Pryor eloquently and thoroughly explained the flaws in the

Ovalles II opinion, and it is therefore unnecessary to reiterate those points here.

See Ovalles II, 905 F.3d at 1277–79 (Jill Pryor, J., dissenting). Judge Jill Pryor has

also cataloged the problems with the panel’s adherence to its rule that attempting a

crime of violence is necessarily itself a crime of violence, and I join her dissent in

full. See infra at 85–90 (Jill Pryor, J., dissenting from the denial of rehearing en

banc); see also Ovalles II, 905 F.3d at 1297–99 (Jill Pryor, J., dissenting).

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II.

What particularly troubles me, however, is the panel’s reaffirmation of its

rule that published panel orders from the second or successive context bind all

panels of this Court, even those deciding fully briefed and argued merits appeals.

See St. Hubert II, 909 F.3d at 345–46. I have previously explained the grave

problems inherent in this rule, In re Williams, 898 F.3d 1098, 1100–05 (11th Cir.

2018) (Wilson, J., specially concurring), and Judge Martin has worked for years to

expose our Court’s indefensible overreach in deciding second or successive

applications, see, e.g., id. at 1105 (Martin, J., specially concurring). In light of

their importance, I will briefly reiterate the major procedural flaws in allowing

such hurried, uncontested, and unappealable orders to bind this Court.

When a prisoner asks this Court for permission to file a second or successive

habeas petition pursuant to 28 U.S.C. §§ 2244 and 2255, we must grant or deny the

request on an emergency thirty-day basis. 28 U.S.C. § 2244(b)(3)(D). We make

our decision based on the prisoner’s application, which is written with a pen or

typewriter on an extremely constraining form. See 11th Cir. R. 22-3(a). Few

prisoners manage to squeeze more than 100 words into the permitted space. Some

have attorneys, but they are subject to the same restrictive form as are pro se

litigants. Nothing else is filed on our docket. The government never files a

responsive pleading, and we never grant oral argument. Most troublingly, the

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orders that come out of this lackluster process are unappealable.2 28 U.S.C.

§ 2244(b)(3)(E) (“The grant or denial of an authorization by a court of appeals to

file a second or successive application shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari.”).

This stands in stark contrast to the practices of the other circuits, which often

hear oral argument and read particularized government briefs, and which consider

the statutory thirty-day time limit to be optional. And, likely recognizing the

unenviable process that generates these second or successive orders, all other

circuits publish substantially fewer orders than we do.3 This process also differs

greatly from that of our merits appeals, in which we have no time constraints, we

have government briefing (and, when issuing a published opinion, we have

typically heard oral argument), and we have a full record. Of course, parties may

appeal merits decisions to the Supreme Court and may ask for panel or en banc

rehearing in this Court.

Incredibly, despite this alarming contrast in process, by declining to take this

case en banc, the full Court has ratified the rule that these hastily-written,

2
For a more in-depth discussion of these constraints. See In re Williams, 898 F.3d at
1101–05. For instance, sometimes the government files a “standing brief” or writes an
individualized brief after the panel order issues. Id. at 1102–03 n.9. And death cases have their
own procedures in this Circuit. See generally 11th Cir. R. 22-4. Further, we have, on occasion,
disregarded the thirty-day limit, in violation of our now-binding precedent. In re Williams, 898
F.3d at 1103 n.7.
3
See generally In re Williams, 898 F.3d at 1102–10.
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uncontested orders bind all panels, including merits panels. These super-

precedents are not appealable to the Supreme Court, and may not be the subject of

a petition for rehearing. Thus, a panel deciding a substantive issue in a published

order insulates itself from essentially any review. 4 Despite the inability to seek

rehearing en banc or appeal to the Supreme Court, these published panel orders are

now afforded the same precedential weight as merits decisions.

Such a decision should have weighed greatly on this Court, and it should

have been sufficient for en banc consideration. It is inconceivable that this Court

would want all motions panels, merits panels, and lower courts in the Circuit to be

4
Sua sponte rehearing appears to be the only practically conceivable remedy for a
mistake in a published panel order, and it is the remedy often proffered in asserting that these
orders “are not beyond all review.” See, e.g., In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015).
This is not much of a failsafe, considering that we have reheard only one out of our more than
10,000 panel orders en banc, see In re Williams, 898 F.3d at 1098, despite our unique decisional
approach that is “fraught with hazard and subject to error.” In re Leonard, 655 F. App’x 765,
778–79 (11th Cir. 2016) (Martin, J., concurring).
There is also a theoretical possibility of our certifying a question involving a published
order to the Supreme Court, see In re Williams, 898 F.3d at 1110 (Martin, J., concurring); see
also 28 U.S.C. § 1254(2); Sup. Ct. R. 19, and a now-retired Justice once implied that he would
have been open to such a question. See Felker v. Turpin, 518 U.S. 651, 667 (1996) (Souter, J.,
concurring). Although I would welcome any avenue of Supreme Court review of these orders,
that Court has only accepted four certified questions since 1946, and has accepted none since
1981. See United States v. Seale, 558 U.S. 985, 985 (2009) (Stevens, J., respecting the dismissal
of the certified question); Aaron Nielson, The Death of the Supreme Court’s Certified Question
Jurisdiction, 59 CATH. U. L. REV. 483, 484–85 (2010).
So, if a panel declines to correct a mistake in a published panel order, that panel can be
overruled only by: (A) sua sponte en banc rehearing by this court—which has happened for one
out of more than 10,000 orders; or (B) the Supreme Court’s acceptance of a certified question—
which has happened four times in the last seventy-two years. This purported backstop is
illusory, and it should not be used as a justification for allowing these orders to bind merits
panels.
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bound on substantive issues by an order decided on the basis of forty-three words

of pro se argument, in under thirty-days, with no avenue of appeal or review. It is

similarly inconceivable that this Court would establish this rule without rehearing

en banc. Because I cannot support such a rule, I dissent from the denial of

rehearing en banc.

Judge Tjoflat takes offense to my dissent, which sheds light on what I

believe is an unfair process.5 Thoughtful and respectful disagreement is essential

to our constitutional directive—“[t]he premise of our adversarial system is that

appellate courts . . . [are] arbiters of legal questions presented and argued by the

parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)

(Scalia, J.). There is sometimes impassioned but collegial disagreement about the

answers to those questions. But to turn substantive disagreement into a sweeping

charge that contrary views are “attacks on the integrity of the court as an

institution” is another thing entirely. It is the great respect for both this Court as an

institution and the judicial role that leads members of this Court to dissent. And if

anyone has the duty to raise concerns about the fairness of this Court’s process for

5
Judge Tjoflat says the dissenters here lack credibility to criticize our Court for
publishing Johnson orders when we have done so ourselves. See Tjoflat Op. at 12–13. He
would apparently instead have us effectively forfeit our votes on Johnson entirely—ensuring that
the majority’s view of Johnson is the only view with the force of binding precedent. But once
the Court decided to use published Johnson orders as the vehicle for developing our habeas law,
we had little choice. Declining to participate would have abdicated our responsibility to develop
Eleventh Circuit law by effectively assigning our votes to our colleagues who continued to insist
on publishing such orders.
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resolving a category of appeals, it is a member of this Court. Consistent with that

duty, I will continue to express disagreement when important issues are at stake.

In another case, when Judge Tjoflat is in the minority, he will be entitled to do the

same.

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MARTIN, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins,
dissenting from the denial of rehearing en banc:

Federal judges who decide cases in groups are bound to have differences of

opinions about how those cases are decided. I’ve always understood that it is the

discussion of those differing views that furthers the development and evolution of

the laws and precedent that govern us all. My understanding does not appear to be

unique, because if there is any member of this court who has not written a

dissenting opinion, they have not been on this court for very long. As for this

dissent, it is certainly not an attack on the institution of the federal courts, to which

I have devoted the last eighteen years of my professional life. Rather, this dissent

is intended to honor the role I have been given on this court. I understand my oath

to require me to point out procedures or interpretations of the law that I view as

hampering our ability to administer justice to the people who come before us. If I

have distorted any fact in this opinion, I request that someone tell me what that fact

is so that I can correct my mistake.

As my colleagues have pointed out, this case is the direct appeal of Michael

St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016.

Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and

sentence in this court, his opportunity is limited by rulings this court has made in

our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has

generated what I view as a healthy discussion of how it came to pass that he will be
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required to serve the entirety of a sentence that could not be legally imposed upon

him if he were sentenced today. Six of the twelve of the active judges on this court

have written opinions about Mr. Hubert’s case, so it seems to have merited a

valuable exchange of viewpoints.

Michael St. Hubert was 37-years-old when he pled guilty to two firearms

charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the

District Judge explained that Mr. St. Hubert would not be a free man until after his

69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct

appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year

sentence, holding that the offenses underlying his convictions—Hobbs Act robbery

and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s

residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert

II”) 6, 909 F.3d 335 (11th Cir. 2018).

There are several problems with the panel opinion that I believe deserve the

attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently

address some of those problems, and I am privileged to join their dissents in full.

6
As the term St. Hubert II would indicate, we are not discussing the original opinion
issued by the panel ruling on Mr. St. Hubert’s direct appeal of his conviction and sentence. The
panel originally issued an opinion ruling against Mr. St. Hubert on February 28, 2018. See
United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018). On November 15, 2018, the panel
vacated its February 2018 opinion and issued its second and broader opinion ruling against Mr.
St. Hubert. St. Hubert II, 909 F.3d at 335, 337. It is this second opinion which is now the
subject of these dissents to denial of en banc review.
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See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s

troubling reaffirmation of its ruling that published panel orders from the second or

successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–

90 (arguing the panel erroneously held attempting a crime of violence itself

equates to a crime of violence).

In writing separately, I echo some of my colleagues’ concerns. But beyond

that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been

concerned about how this Circuit has parlayed the limited authority given it under

28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to

stop thorough consideration of the issues presented by people like Mr. St. Hubert,

even on his direct appeal. It is an aberration that a statute meant to govern the

treatment of inmates who seek to file a second or successive § 2255 motion now

serves as a tool for this Court to limit the review of prison sentences on direct

appeal. I am convinced this aberration results from our Court failing to follow the

plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin

with Mr. St. Hubert.

I.

Michael St. Hubert pled guilty to two counts of using, carrying, and

brandishing a firearm in violation of 18 U.S.C. § 924(c). A conviction under

§ 924(c) is warranted only if a defendant uses a firearm during a “crime of violence

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or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). Mr. St. Hubert appealed his

convictions and 32-year sentence to this Court, arguing that his underlying

offenses—Hobbs Act robbery and attempted Hobbs Act robbery—do not qualify

as crimes of violence required to support a conviction under § 924(c).

His is no pro forma challenge. His appeal raises the now-hot topic,

unresolved by the Supreme Court, of whether Hobbs Act robbery and attempted

Hobbs Act robbery qualify as violent felonies so as to justify his convictions for

using a firearm in connection with “any crime of violence.” 18 U.S.C.

§ 924(c)(1)(A). The issue of what constitutes a crime of violence under § 924(c)

has been the subject of extensive consideration in this Circuit as well as our sister

circuits. See, e.g., Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018)

(en banc) (prescribing a conduct-based approach for determining whether an

offense qualifies as a crime-of-violence under § 924(c)(3)’s residual clause); id. at

1277–99 (Jill Pryor, J., dissenting, joined by three judges of this Court) (arguing

the categorical approach must govern § 924(c)’s definition of “crime of violence”

and contending § 924(c)’s residual clause is void for vagueness under this

approach); see also, e.g., United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018)

(per curiam) (vacating § 924(c) convictions in light of Sessions v. Dimaya, 584

U.S. __, 138 S. Ct. 1204 (2018), and leaving for the full D.C. Circuit the question

of whether a conduct-based construction might save § 924(c)’s residual clause);

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United States v. Salas, 889 F.3d 681, 684–86 (10th Cir. 2018) (vacating § 924(c)

conviction in light of Dimaya).

For Mr. St. Hubert and others who were convicted of § 924(c) violations

within the Eleventh Circuit, the answers to these questions may be especially

consequential. Penalties for § 924(c) are notoriously harsh—requiring a 5-to-

10-year sentence for a first conviction and a mandatory minimum and consecutive

25-year sentence for a second, and a third, etc. 18 U.S.C. § 924(c)(1)(A), (1)(C),

(1)(D)(ii). Under the statute at the time of his conviction, each of Mr. St. Hubert’s

two § 924(c) convictions had to carry separate, consecutive sentences. Id.

§ 924(c)(1)(A), (1)(D)(ii). In south Florida, where Mr. St. Hubert was charged and

convicted, prosecutors have routinely charged more than one § 924(c) count, which

is sometimes referred to as “stacking” those charges. This charging decision

leaves the sentencing court no choice but to add decades to sentences of defendants

who took part in a crime spree that involved firearms in more than one location.

Specifically, for Mr. St. Hubert, the decision to charge him with the second

§ 924(c) violation added 25 years to his sentence. Notably, the recently enacted

First Step Act of 2018 would not have permitted this type of “stacking” of § 924(c)

charges in Mr. St. Hubert’s case. See S. Res. 756, 115th Cong. § 403 (2018)

(enacted). To say it plainly, this new law would today prohibit 25 years of the 32-

year sentence imposed on Mr. St. Hubert in 2016.

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Also notable, available data indicates that federal prosecutors in different

parts of the country have different practices related to charging a defendant with a

§ 924(c) violation for one, or two, or every incident in which a gun was used or

carried during a crime spree. See U.S. Sentencing Comm’n, Report to Congress:

Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal

Justice System 22 (2018) (explaining, in fiscal year 2016, Southern Florida was

one of only 8 districts out of 78 reporting any cases in which more than one count

of § 924(c) was charged). Thus, the random factors of time and geography mean

that Mr. St. Hubert will serve a significantly longer sentence than a person who

committed precisely the same crime but did so more recently or in another part of

the country.

The panel rejected Mr. St. Hubert’s arguments about the nature of his prior

convictions. It deemed both his Hobbs Act robbery and attempted Hobbs Act

robbery to be crimes of violence under both § 924(c)’s residual clause and its use-

of-force clause. See St. Hubert II, 909 F.3d at 344–53. By my count, the St.

Hubert II panel opinion ruled against Mr. St. Hubert in four different ways. Two

of those rulings alone would have ended his appeal by affirming his convictions

and 32-year sentence. I say the alternative holdings reach beyond what was

necessary to decide Mr. St. Hubert’s case. Even so, those gratuitous rulings bind

future panels of this Court in cases for which they should have been allowed a

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fresh look. Here, I will address one especially harmful holding: that the St. Hubert

II panel was bound to characterize Mr. St. Hubert’s crimes as “violent” because

panels of this Court had done so in earlier rulings denying applications for leave to

file second or successive § 2255 motions. See St. Hubert II, 909 F.3d at 345–46.

II.

The ruling that causes Mr. St. Hubert to lose his direct appeal is mandated

by this court’s habeas jurisprudence. For that reason, my discussion will include a

brief overview of the remedies available to inmates who are years into serving a

long sentence, which they believe should be shortened due to a recent development

in the law. Generally, a prisoner suffering under a sentence he contends is illegal

must seek relief by way of motion authorized under 28 U.S.C. § 2255. However,

the Antiterrorism and Effective Death Penalty Act of 1996 renders this quite a

narrow path to relief. For example, prisoners are generally given one chance to

collaterally attack their sentence as a matter of right, and this they must do within

one year of when it became final. 28 U.S.C. § 2255(f)(1). For inmates like Mr. St.

Hubert, who have been sentenced to serve decades-long terms in prison, this one-

time right to review comes too soon. Almost always, the law that defined and

governed an inmate’s sentence when it was imposed develops and evolves during

his many years behind bars. Even so, those prisoners who already filed a § 2255

motion within the one-year permitted by statute are strictly limited in their ability

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to bring to the courts any legal issue that later developed regarding their sentence.

For starters, these inmates cannot file another motion (a “second or successive”

motion, by the terms of the statute) without getting permission from this Court.

See 28 U.S.C. § 2255(h).

And the statute governing this “get permission” process is quite specific. It

directs that “[a] motion in the court of appeals for an order authorizing the district

court to consider a second or successive application shall be determined by a three-

judge panel of the court of appeals.” 28 U.S.C. § 2244(b)(3)(B). Also, “[t]he 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 application

satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C). The

statute sets a time-limit for this authorization: “[t]he 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.” 28 U.S.C. § 2244(b)(3)(D). And although the

statute does not expressly prohibit briefing in this context, the panel must rule

within the 30-day time limit, so briefing is nearly impossible. Indeed, the statute

makes no provision for the government having custody of the prisoner to even

know that the inmate applied to file a second or successive petition. Returning to

the statute, its remaining provision removes every possible avenue for the appeal of

this “prima facie” determination: “[t]he grant or denial of an authorization to file a

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second or successive application shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C.

§ 2244(b)(3)(E). From my point of view, it is this prohibition on review that most

invites abuse.

The language of this statute simply does not authorize courts of appeal to

make merits decisions about the correctness of an inmate’s sentence when he is

merely seeking permission to file a habeas petition in District Court. A panel

presented with a second or successive application is not empowered by the statute

to decide in the first instance whether an inmate is entitled to relief. I agree with

Judge William Pryor that where Supreme Court or existing Eleventh Circuit

precedent already obviously forecloses a prisoner’s claim, we should deny his

application. But where there is an open merits question, the statute calls for the

case to go to the District Court for consideration of that question in the first

instance.

I offer the example of a case brought by a man named Stony Lester, because

it illustrates how our get-permission process should operate. See In re Stoney

Lester, No. 16-11730-A, slip op. Mr. Lester sought leave to file a second or

successive § 2255 motion in light of the Supreme Court’s holding in Johnson. He

sought to challenge his Sentencing Guideline-based, career-offender designation as

unconstitutionally vague. Lester, No. 16-11730, slip op. at 2. Even though the

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panel disagreed about whether Mr. Lester would ultimately succeed on his claim, it

granted his application. Id. at 9. The panel explained it wasn’t entirely clear

whether Eleventh Circuit precedent foreclosed Mr. Lester’s claim. See id. at 4–5

(discussing whether prior precedent that would have foreclosed the claim had been

abrogated by decisions of the Supreme Court). Without clear precedent dictating

the outcome of Mr. Lester’s case, and because the panel recognized that at the

application stage, “we do not hear from the government, the application lacks a

meaningful opportunity to brief the merits of his case, we have no record, and we

do not have the time necessary to decide anything beyond the prima facie

question,” the panel sent the case to the District Court so it could take the first pass

at answering the thorny, open question Mr. Lester’s case presented. Id. at 5

(quotations marks and citations omitted).

Two judges on the panel authored concurrences to that order. Judge

William Pryor stated Mr. Lester had “made a prima facie showing that he is

entitled to relief and that the district court, with the assistance of adversarial

briefing must address the merits in the first instance.” But Judge Pryor “wrote

separately to express [his] view that [Mr.] Lester [wa]s likely not entitled to relief.”

Id. at 10 (William Pryor, J., concurring in result only). He did not, I note,

“collapse[]” the distinction between Mr. Lester’s prima facie showing and his case

on the merits. William Pryor, J., concurring op. at 35. Judge Jill Pryor also fully

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concurred in the order granting Mr. Lester’s application. Lester, No. 16-11730,

slip op. at 13 (Jill Pryor, J., concurring). She also wrote separately, but she

explained why she believed Mr. Lester might be entitled to relief. Mr. Lester’s

panel properly acted as a gatekeeper, sending his case to the District Court to

interpret our precedent, intervening Supreme Court decisions, and the disparate

views of the two Judge Pryors.

Unfortunately, our Court has not proceeded in this manner for all of these

cases. In considering hundreds of applications (particularly since the Supreme

Court decided Samuel Johnson’s case, Johnson v. United States, 576 U.S. __, 135

S. Ct. 2551 (2015)), this Court has denied authorization to prisoners who plainly

made out a prima facie case that they could meet the requirements of the statute,

based on the panel’s view that the prisoner would later lose on the merits anyway.

See In re McCall, 826 F.3d 1308, 1311–12 (11th Cir. 2016) (Martin, J.,

concurring) (describing “[o]ur court’s massive effort to decide the merits of

hundreds of habeas cases within 30 days each, all over the span of just a few

weeks” in the wake of the Supreme Court’s decision rendering Johnson

retroactive). These merits decisions are in direct violation of the text of

§ 2244(b)(3)(C), which vests the three-judge panels reviewing these applications

with power only to “determine[]” that the prisoner has made a prima facie

showing.

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A “prima facie” showing is nothing more than a showing “[s]ufficient to

establish a fact or raise a presumption unless disproved or rebutted; based on what

seems to be true on first examination, even though it may later be proved to be

untrue.” Prima Facie, Black’s Law Dictionary (10th ed. 2014); see also Prima

Facie Case, Black’s Law Dictionary (10th ed. 2014) (defining prima facie case as

“[a] party’s production of enough evidence to allow the fact-trier to infer the fact at

issue and rule in the party’s favor.”). “Prima Facie” is a term often used in the law,

most familiarly in the employment context, and it ordinarily refers to an initial

showing of a meritorious claim. See Texas Dep’t of Comm. Affairs v. Burdine,

450 U.S. 248, 253, 101 S. Ct. 1089, 1094 (1981) (describing the burden of

establishing a prima facie case of employment discrimination as “not onerous”).

Plainly the party making the prima facie showing is not required to show he has a

winning case. He need only show enough to allow a preliminary determination

that he could prevail, subject to further proof.

There are many contexts in which courts evaluate whether a case deserves to

proceed on the merits by requiring a party to make a prima facie showing. For

example, in the context of jury selection, a party can make a prima facie showing

of “purposeful racial discrimination” by demonstrating “that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.” Batson v.

Kentucky, 476 U.S. 79, 93–94, 106 S. Ct. 1712, 1721 (1986). This prima facie

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showing then shifts the burden to the other side to “demonstrate that permissible

racially neutral selection criteria and procedures have produced the monochromatic

result.” Id. (quotation marks omitted). And only if a neutral reason is offered does

the trial court analyze the merits. See id. at 98, 106 S. Ct. at 1724; cf. Purkett v.

Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995) (holding a Court of

Appeals erred by combining Batson’s second and third steps). Thus, the merits

question of whether a party engaged in racial discrimination when it selected a jury

simply cannot be answered based on the prima facie showing alone. But of course

in this context there is an opportunity for adversarial testing. And if a court were

to overstep its authority by making a merits decision at the “prima facie showing”

stage, the offended party can point out the error to that court or on appeal. Not so

for an inmate erroneously forced to prove his merits case at the “get permission”

stage.

Similarly, in employment cases, the prima facie showing is a tool for

distributing the burden for producing evidence. A court considering claims of

workplace discrimination first looks to the person alleging discrimination to show

“actions taken by the employer from which one can infer, if such actions remain

unexplained, that it is more likely than not that such actions were based on a

discriminatory criterion illegal under Title VII.” Young v. United Parcel Service,

Inc., 575 U.S. __, 135 S. Ct. 1338, 1354 (2015) (quotation marks omitted). Once

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this prima facie showing—not an onerous one—is made, the burden shifts to the

employer to offer a nondiscriminatory reason for the employment action. See id.

(quotation marks omitted). Again here, even though some adversarial testing can

occur, courts are not allowed to cut off the search for truth once the prima facie

showing has been made. And here too, courts that force a merits decision at the

prima facie evaluation stage can be challenged on rehearing and on appeal. Not so

for inmates seeking to file a second or successive petition, however, because

§ 2244(b)(3)(E) does not provide them such recourse.

Judge William Pryor argues that my reference to these examples is

misplaced because 28 U.S.C. § 2255, unlike Batson or employment discrimination

challenges, does not implicate a burden shifting framework. William Pryor, J.,

concurring op. at 25–27. But his fine distinction is too fine. The general principle

that a prima facie showing exists separate and apart from a final determination of

the merits applies with equal force to non-burden shifting schemes.

For example, a petitioner in the immigration context is required to make a

prima facie showing when she is seeking to reopen either her asylum case; a

withholding of removal ruling; or a waiver of inadmissibility ruling. And the

Board of Immigration Appeals (“BIA”) has long made clear that these types of

relief “will not be granted unless the [petitioner] establishes a prima facie case of

eligibility for the underlying relief sought.” In re S-V-, 22 I. & N. Dec. 1306, 1307

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(BIA 2000), disapproved on other grounds by Amir v. Gonzales, 467 F.3d 921,

927 (6th Cir. 2006). The “prima facie showing” sufficient to reopen proceedings is

one that makes the petitioner’s case seem “worthwhile” of further development. In

re L-O-G-, 21 I. & N. Dec. 413, 419 (BIA 1996). More to the point, the BIA has

explicitly cautioned that “[i]n considering a motion to reopen, the [BIA] should not

prejudge the merits of a case before the alien has had an opportunity to prove the

case.” Id. The BIA has expressed its concern that “[f]requently, it will be difficult

to assess from motion papers alone what . . . will occur . . . in a given case.” Id.

This concern is real for Mr. St. Hubert’s appeal too. He presents important

(and certainly impactful) questions about whether his prior convictions for Hobbs

Act Robbery and attempted Hobbs Act Robbery qualify as crimes of violence (as

that term is used in 18 U.S.C. § 924(c)) so as to require his 32-year sentence. This

Court did not decide these questions in the regular order. In ruling against Mr. St.

Hubert on these questions, the panel relied upon rulings made under the limited

authority of § 2244(b)(3), instead of allowing the full and adversarial testing his

arguments deserve on his direct appeal. Some time ago, a three-judge panel of this

Court, without adversarial briefing, under a 30-day deadline, and in a process not

subject to standard appeal or review, held that a Hobbs Act robbery conviction

qualifies as a crime of violence under § 924(c)’s use-of-force clause. In re Saint

Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016) (per curiam); see also In re Colon,

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826 F.3d 1301, 1305 (11th Cir. 2016) (per curiam) (relying on Saint Fleur to

conclude that aiding and abetting Hobbs Act robbery qualifies as a crime of

violence under § 924(c)’s use-of-force clause). This Court’s decisions on whether

attempted Hobbs Act robbery constitutes a crime of violence suffer from other

shortcomings, well-articulated by Judge Jill Pryor in her dissent. Jill Pryor, J.,

dissenting op. at 86–90.

There was a time when this Court honored the statutorily imposed

limitations of a prima facie review. In In re Holladay, 331 F.3d 1169 (11th Cir.

2003), a decision that is still binding precedent for our Circuit, we said the

“requisite showing” was “a sufficient showing of possible merit to warrant a fuller

exploration by the district court.” Id. at 1173–74 (quotation marks omitted)

(adopting the standard set in Bennett v. United States, 119 F.3d 468, 469 (7th

Cir.1997)); see also Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.

2000) (“[W]here two prior panel decisions conflict we are bound to follow the

oldest one.”). Other courts agree that the standard for allowing a second or

successive petition should be interpreted permissively and should not involve a

merits analysis of the claim by the Court of Appeals. See In re Hoffner, 870 F.3d

301, 308 (3d Cir. 2017) (explaining that whether an application “relies on” a new

rule cannot be based on “whether the claim has merit, because [the Third Circuit]

does not address the merits at all in our gatekeeping function”); Ochoa v. Sirmons,

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485 F.3d 538, 541 (10th Cir. 2007) (per curiam) (“This statutory mandate does not

direct the appellate court to engage in a preliminary merits assessment. Rather, it

focuses our inquiry solely on the conditions specified in § 2244(b) that justify

raising a new habeas claim.”); see also Holladay, 331 F.3d at 1173 (“[I]f in light of

the documents submitted with the application it appears reasonably likely that the

application satisfies the stringent requirements for the filing of a second or

successive petition, we shall grant the application” (quotations omitted and

alterations adopted)). The proper view is that in deciding whether to allow a

second or successive petition, the three-judge panel is not empowered to speculate

about what a District Court might do if the second or successive motion is allowed

to proceed.

I view the Eleventh Circuit as having routinely exceeded its statutory

mandate in this regard. Notwithstanding the narrowness of the inquiry authorized

by the language of § 2244, this Circuit has regularly and unnecessarily reached

beyond the questions of whether an inmate’s request to file a § 2255 motion

“contain[s]” a new rule, 28 U.S.C. § 2255(h), and whether he has made a “prima

facie showing” to instead address the merits of his claim. Specifically, after

receiving hundreds of applications seeking relief based on the Supreme Court’s

decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, “[t]he judges

of this court, myself included, [started] combing through sealed records from the

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prisoner’s original sentencing hearing and . . . mak[ing] a decision about whether

the prisoner w[ould] win if we let him file his § 2255 motion in district court.” In

re Clayton, 829 F.3d 1254, 1257 (11th Cir. 2016) (Martin, J., concurring). Later,

we codified this approach. See In re Thomas, 823 F.3d 1345, 1349 (11th Cir.

2016) (per curiam) (concluding an applicant failed to make a prima facie showing

under § 2255 because the sentencing record indicated the District Court did not

rely on the portion of the Armed Career Criminal Act invalidated in Johnson); see

also Beeman v. United States, 871 F.3d 1215, 1221 & n.1 (11th Cir. 2017)

(expressly adopting Thomas as providing the relevant approach to analyzing

§ 2255 motions brought pursuant to Johnson). To reiterate, In re Thomas was an

opinion of great consequence for our Circuit and for people sentenced to prison

terms here. Yet its holding was beyond the ability of the inmate to challenge. See

28 U.S.C. § 2244(b)(3)(E).

This Court has now issued hundreds of rulings on the merits of prisoners’

claims in the context of their mere application to proceed in District Court. Before

Mr. St. Hubert’s appeal was decided, this Court published, by my count, eight

opinions resolving, on review of an application to file a second or successive

§ 2255 motion, the important and often difficult question of whether certain

offenses are “crime[s] of violence” or “violent felon[ies]” under the elements

clauses in § 924(c)(3)(A), (e)(2)(B)(i), or United States Sentencing Guidelines

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§ 4B1.2(a). See In re Welch, 884 F.3d 1319, 1323–25 (11th Cir. 2018) (per

curiam) (Alabama first degree robbery and Alabama first degree assault); In re

Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (per curiam) (bank robbery in

violation of 18 U.S.C. § 2113(a), (d)); Saint Fleur, 824 F.3d at 1341 (Hobbs Act

robbery); Colon, 826 F.3d at 1305 (aiding-and-abetting Hobbs Act robbery); In re

Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016) (per curiam) (carjacking in

violation of 18 U.S.C. § 2119); In re Watt, 829 F.3d 1287, 1289–90 (11th Cir.

2016) (per curiam) (aiding and abetting assault of a postal employee); In re Sams,

830 F.3d 1234, 1239 (11th Cir. 2016) (per curiam) (bank robbery in violation of 18

U.S.C. § 2113(a)); In re Burgest, 829 F.3d 1285, 1287 (11th Cir. 2016) (per

curiam) (Florida manslaughter and kidnapping). Now in standing behind St.

Hubert II, this Court has institutionalized these appeal-proof panel opinions as the

precedent of this Circuit. It is notable that some of these opinions decided the

merits of claims in the face of dissents by my colleagues and me warning that the

heavily abridged second or successive application procedures are ill-suited to

answering such questions. See, e.g., Colon, 826 F.3d at 1308 (Martin, J.,

dissenting) (“Deciding the merits of not-yet-filed § 2255 motions in this way is

especially dangerous in cases like Mr. Colon’s that turn on a complex question of

first impression.”); Smith, 829 F.3d at 1285 (Jill Pryor, J., dissenting) (“We

certainly have never held that the [carjacking] statute would qualify categorically

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even setting aside the residual clause in § 924(c). It would be impractical and

imprudent to decide this complex question in the first instance here.”). Outside of

the second or successive application setting, our Court rules would ordinarily

require an oral argument panel to consider a topic upon which the panel could not

reach unanimity. 11th Cir. R. 34-3(b)(3).

III.

In his concurrence, Judge Tjoflat attempts to mitigate the extent of the harm

from this practice by saying that only a few of the orders deciding the merits of

claims presented in second or successive applications have been published.

Tjoflat, J., concurring op. at 11. But it is not the number of published opinions I

take issue with. I take issue with the practice itself. As Mr. St. Hubert’s case

illustrates, any one published order that prematurely and in my view mistakenly

resolves an open merits question forecloses that issue for all future panels. See

Ovalles v. United States, 905 F.3d 1231, 1268 (11th Cir. 2018) (Martin, J.,

dissenting) (describing the outsized effect of a few published second or successive

application rulings that resolved open questions of law). No critical mass of

published merits orders is necessary to establish the law in our Circuit and affect

hundreds of inmates.

Take for example In re Smith, which held for the first time that carjacking in

violation of 18 U.S.C. § 2119 “clearly” qualifies as a crime of violence under

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§ 924(c)’s use-of-force clause. 829 F.3d at 1280–81. As Judge Jill Pryor

explained in a dissent to that decision, the Smith majority’s conclusion was hardly

obvious and only tenuously supported by our prior case law. In re Smith, 829 F.3d

1276, 1281–85 (11th Cir. 2016) (Jill Pryor, J., dissenting). Nevertheless, the rule

set out in Smith became the rule in this Circuit. All later panels considering

denials of § 2255 motions and requests for authorization to file second or

successive § 2255 motions must rely on Smith—as our prior panel precedent rule

mandates—to decide the same issue. See, e.g., Grant v. United States, 694 F.

App’x 756, 758 (11th Cir. 2017) (unpublished) (mem.) (“Grant’s argument that

carjacking is not a crime of violence under § 924(c)’s force clause is foreclosed by

our opinion in Smith. Therefore, Grant’s convictions under § 924(c) were proper

because carjacking satisfies § 924(c)’s force clause, and the district court did not

err in denying his § 2255 motion to vacate on this ground.”). It is not the number

of published orders that thwarts defendants’ efforts to have our Court fully

consider their claims, it is the breadth of their reach.

Judge Tjoflat says my dissenting colleagues and I engage in the very

practice we criticize, because we have been on panels that published certain orders

on prisoners’ applications to file second or successive § 2255 motions. Tjoflat, J.,

concurring op. at 14–15. But not one of the 14 orders he points to resolved for the

first time a then-open question about whether a certain offense qualifies as a crime

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of violence or a violent felony under the elements clause of § 924(c)(3)(A),

(e)(2)(B)(i), or United States Sentencing Guidelines § 4B1.2(a). None of our

opinions bound future panels to grant relief to any prisoner based on their criminal

history. To the contrary, eight of the fourteen orders denied the prisoner relief

based on a straightforward application of existing Circuit precedent. In re Hunt,

835 F.3d 1277 (11th Cir. 2016); In re Parker, 832 F.3d 1250 (11th Cir. 2016); In re

Jones, 830 F.3d 1295 (11th Cir. 2016); In re Clayton, 829 F.3d 1254 (11th Cir.

2016); In re Sapp, 827 F.3d 1334 (11th Cir. 2016); In re McCall, 826 F.3d 1308

(11th Cir. 2016); In re Rogers, 825 F.3d 1335 (11th Cir. 2016); In re Robinson,

822 F.3d 1196 (11th Cir. 2016). Six of those eight published orders featured at

least one concurrence that offered criticism of the Circuit’s existing precedent the

panel was compelled to apply. See, e.g., In re Hunt, 835 F.3d 1277, 1279 (11th

Cir. 2016) (Wilson, J., concurring) (“Although Hunt’s Guidelines-based claim is

currently foreclosed by [United States v.] Matchett, I write separately to explain

why I disagree with the holding in Matchett.”); In re Parker, 832 F.3d 1250, 1250–

51 (11th Cir. 2016) (Rosenbaum, J., concurring) (“I agree that In re Baptiste

requires us to dismiss Leslie Parker’s request for authorization to file a second or

successive habeas petition. I write separately because I continue to believe that

Baptiste’s interpretation of 28 U.S.C. 2244(b)(1) . . . is incorrect as a matter of

law.” (citation omitted)); In re Jones, 830 F.3d 1295, 1297–1305 (11th Cir. 2016)

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(Rosenbaum, J., concurring) (offering four reasons why Baptiste, the decision that

precluded the prisoner’s request for relief, was wrongly decided); In re Clayton,

829 F.3d 1254, 1256–76 (11th Cir. 2016) (Martin, J., concurring) (criticizing

Matchett, which precluded the prisoner’s request for relief); In re Sapp, 827 F.3d

1334, 1337 (11th Cir. 2016) (Jordan, Rosenbaum, & Jill Pryor, JJ., concurring)

(“Although we are bound by Griffin, we write separately to explain why we

believe Griffin is deeply flawed and wrongly decided.”); In re McCall, 826 F.3d

1308 (11th Cir. 2016) (Martin, J., concurring) (criticizing Griffin and Matchett,

which precluded the prisoner’s request for relief).

The remaining six orders cited by Judge Tjoflat granted the prisoners’

applications but did not decide the merits question. We sent the prisoners’ cases to

the District Court to resolve the unsettled merits question in the first instance. In re

Chance, 831 F.3d 1335 (11th Cir. 2016); In re Gomez, 830 F.3d 1225 (11th Cir.

2016); In re Davis, 829 F.3d 1297 (11th Cir. 2016); In re Parker, 827 F.3d 1286

(11th Cir. 2016); In re Adams, 825 F.3d 1283 (11th Cir. 2016); In re Pinder, 824

F.3d 977 (11th Cir. 2016). For example in Pinder, we explained “the law [was]

unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence,”

but “[w]hat’s clear however is that Pinder has made a prima facie showing that his

motion contains a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court.” 824 F.3d at 979 (omission adopted,

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quotation marks omitted, citation omitted). These orders are simply different than

the published orders that resolved open merits questions.

Judge Tjoflat also writes that St. Hubert II merely echoed an already-clear

rule in our Circuit about how to treat published orders resolving requests for

authorization to file a second or successive § 2255 motion. Tjoflat, concurring op.

at 16. But the St. Hubert II panel opinion tells us this is not so. St. Hubert II

decided, once and for all, that merits decisions reached in the second or successive

application context are binding precedent on direct appeal. 909 F.3d at 346 (“Lest

there be any doubt, we now hold in this direct appeal that law established in

published three-judge orders issues pursuant to 28 U.S.C. § 2244(b) in the context

of applications for leave to file second or successive § 2255 motions is binding

precedent on all subsequent panels of this Court, including those reviewing direct

appeals and collateral attacks, unless and until it is overruled or undermined to the

point of abrogation by the Supreme Court or by this court sitting en banc.”

(alteration adopted, quotation omitted, citation omitted)). This decision has great

consequence. It curtails our review of claims made by prisoners like Mr. St.

Hubert, even on direct appeal.

His criticisms aside, Judge Tjoflat seems to acknowledge our Court has

reached beyond merely determining whether an application to file a second or

successive § 2255 motion makes the required prima facie showing. He notes for

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example a series of orders in which “this Court determined that Johnson’s residual

clause holding did not apply to companion § 924(c) crimes and that, even

assuming Johnson did, the prisoners’ crimes qualified under § 924(c)’s elements

clause, which likewise was not affected by Johnson.” Tjoflat, J., concurring op. at

11. Judge Tjoflat also recognizes that “[i]n 2016 after the Johnson and Welch

decisions, there was a heightened need to publish at least some of these 2,282

orders to establish precedent.” Id. at 13. Both of these points demonstrate rather

than refute my view. I know of no reason why these published opinions should not

have been the product of the usual robust process that ordinarily attends our Circuit

precedent.

Judge Tjoflat and I disagree on the upshot of this overreach, however.

While he may find it comforting that we’ve exceeded Congress’s mandate only

sparingly, I do not. Neither do I believe our Court can justify our overreach

because the merits decisions we make in this context might match those made by

other Circuits after more thorough review. In the same way, I do not share Judge

Tjoflat’s apparent comfort that we have our Staff Attorney’s Office give us advice

on merits issues better left to U.S. District Judges to decide. See Tjoflat, J.,

concurring op. at 14, 21. Finally in this regard, I take no comfort in the backstop

of a sua sponte en banc call by an active member of this Court. See id. at 18. This

process would require a member of this Court to identify a wrongly decided merits

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order for which no petition for rehearing en banc has been filed; succeed in an en

banc call; and persuade the full en banc court to reverse the panel decision. And

this is a process the prisoner cannot himself initiate and generally is excluded from

participating. I do not disagree with Judge Tjoflat when he says about us that

“[t]he real problem for the dissenters” is that we “have not garnered the majority

votes needed to vacate the particular published panel orders with which [we]

disagree.” Id. at 17. But just because we hold a minority of the positions on this

court does not necessarily mean we are wrong.

IV.

The members of this court are bound to treat the St. Hubert II panel’s

holdings as binding precedent in this Circuit, unless and until the Supreme Court or

this Court sitting en banc reverses each of them, one by one. See United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that, under this Circuit’s

prior panel precedent rule, this Court is bound to follow a prior panel’s holding

unless it has been overruled or undermined to the point of abrogation by our en

banc Court or by the Supreme Court). Nothing in the limited § 2255 authorization

procedure was designed for resolving whether a given offense qualifies as a crime

of violence or violent felony. See Wilson, J., dissenting op. at 53–56 (describing

the limited nature of § 2255 authorization procedures). This Court unnecessarily

and prematurely addressed these issues and, in so doing, exceeded its statutory

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mandate. As a result, prisoners sentenced in Alabama, Florida and Georgia may be

serving illegal sentences for which they have no remedy.

Congress gave us a gatekeeping function. We’ve used it to lock the gate and

throw away the key. The full court should have taken up this matter of great

consequence. I dissent from its decision not to do so.

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JILL PRYOR, Circuit Judge, with whom WILSON and MARTIN, Circuit Judges,
join, dissenting from the denial of rehearing en banc:

I join in full Judge Wilson’s and Judge Martin’s compelling dissents. The

institutional (and, possibly, constitutional) problems with treating published panel

orders as binding on all subsequent panels are significant and, at a minimum,

worthy of en banc review. I write separately to express my disagreement with the

panel opinion’s holding that an attempt to commit an offense that qualifies under

18 U.S.C. § 924(c)’s elements clause itself necessarily constitutes an elements

clause offense.

The statute at issue in Mr. St. Hubert’s case, 18 U.S.C. § 924(c),

criminalizes and imposes mandatory enhanced sentences for using or carrying a

firearm “during and in relation to any crime of violence or drug trafficking crime”

or possessing a firearm in furtherance of such a crime. 18. U.S.C. § 924(c)(1)(A).

Section 924(c)(3) defines “crime of violence” as “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). Subsection (A) is known as the “elements clause,” and subsection

(B) is known as the “residual clause.”

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The panel opinion considered whether Mr. St. Hubert’s conviction for

attempted Hobbs Act robbery qualified as a violent felony under 18 U.S.C.

§ 924(c)’s elements clause. See United States v. St. Hubert, 909 F.3d 335, 351-53

(11th Cir. 2018). An individual commits Hobbs Act robbery when he “obstructs,

delays, or affects commerce or the movement of any article or commodity in

commerce, by robbery . . . or attempts or conspires so to do, or commits or

threatens physical violence to any person or property in furtherance of a plan or

purpose to” commit robbery under the statute. 18 U.S.C. § 1951(a). “[R]obbery,”

in turn, is defined as “the unlawful taking or obtaining of personal property from

the person or in the presence of another, against his will, by means of actual or

threatened force, or violence, or fear of injury, immediate or future.” Id.

§ 1951(b)(1). Under federal law, to be convicted for an attempt crime, the

defendant must (1) have the specific intent to engage in the criminal conduct he is

charged with attempting and (2) engage in an overt act, defined as “a substantial

step toward the commission of that crime and which strongly corroborates [his]

criminal intent.” United States v. Rothenberg, 610 F.3d 621, 626 (11th Cir. 2010);

see also United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).

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The panel opinion concluded that attempted Hobbs Act robbery qualifies as

a predicate offense under § 924(c)’s elements clause.1 See St. Hubert, 909 F.3d at

352. To get to that conclusion, the opinion made two right turns before it took a

wrong turn, but the wrong turn led to a logical and legal dead end. First, the

opinion said, “the definition of a crime of violence in [the elements clause] equates

the use of force with attempted force, and thus the text of [the elements clause]

makes clear that actual force need not be used for a crime to qualify” as a crime of

violence. Id. No disagreement here. Second, “a completed Hobbs Act robbery

itself qualifies as a crime of violence under [§ 924(c)’s elements clause] and,

therefore, attempt to commit Hobbs Act robbery requires that St. Hubert intended

to commit every element of Hobbs Act robbery, including the taking of property in

a forcible manner.” Id. That is because “a defendant must intend to commit every

element of the completed crime in order to be guilty of attempt.” Id. So far so

good.

But then the opinion concluded: “‘[A]n attempt to commit a crime should

be treated as an attempt to commit every element of that crime’”; thus, “when a

substantive offense qualifies as a violent felony under [§ 924(c)’s elements clause],

1
I do not address the opinion’s alternative holding that Mr. St. Hubert’s attempted Hobbs
Act robbery conviction falls within § 924(c)’s residual clause, a holding that rested upon the en
banc Court’s decision in Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc). See
St. Hubert, 909 F.3d at 346-47. I dissented in that case, see Ovalles, 905 F.3d at 1277-99 (Jill
Pryor, J., dissenting), and continue to disagree with its holding and reasoning.
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an attempt to commit that offense also is a violent felony.” Id. (quoting Hill v.

United States, 877 F.3d 717, 719 (7th Cir. 2017)). This is where the panel opinion

(and the Hill opinion upon which it relied) went wrong. Logic permits no

inference from the fact of a conviction for an attempt crime that the person

attempted to commit every element of the substantive offense. The panel was able

to bridge this logical gap only by converting intent to commit each element of the

substantive offense (proof of which is necessary to convict someone of an attempt

crime) into attempt to commit each element of the substantive offense (which is

not necessary to convict someone of an attempt crime). Intending to commit each

element of a crime involving the use of force simply is not the same attempting to

commit each element of that crime. By the alchemy of transmuting intent to

commit each element into attempt to commit each element, the panel conjured the

conclusion that anyone convicted of an attempt to commit a crime involving force

must have been found beyond a reasonable doubt to have attempted to use force.

That’s the logical flaw.

Now the legal flaw: the panel’s transformation of an attempted offense into

an attempt to commit each element of the offense does not align with the actual

elements of an attempt offense. Rothenberg, 610 F.3d at 626; Murrell, 368 F.3d at

1286. So it is incorrect to say that a person necessarily attempts to use physical

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force within the meaning of § 924(c)’s elements clause just because he attempts a

crime that, if completed, would be violent.

Conviction for an attempt crime also requires an overt act, but that element

does not fill the panel opinion’s logical gap. We can easily imagine that a person

may engage in an overt act—in the case of robbery, for example, overt acts might

include renting a getaway van, parking the van a block from the bank, and

approaching the bank’s door before being thwarted—without having used,

attempted to use, or threatened to use force. Would this would-be robber have

intended to use, attempt to use, or threaten to use force? Sure. Would he

necessarily have attempted to use force? No. So an individual’s conduct may

satisfy all the elements of an attempt to commit an elements-clause offense without

anything more than intent to use elements-clause force and some act (in

furtherance of the intended offense) that does not involve the use, attempted use, or

threatened use of such force. The panel opinion’s conclusion that an attempt to

commit a crime of violence necessarily is itself a crime of violence simply does not

hold up.

By declining to rehear this case en banc, our court not only ignores the

serious institutional concerns my colleagues describe in their dissents, but it also

misses the chance to reexamine the panel’s flawed logic as to attempt crimes. This

missed opportunity perpetuates unlawfully lengthy sentences for people convicted

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of attempt crimes. And the panel opinion’s erroneous holding reaches beyond

§ 924(c) because this court already has applied that holding to the Armed Career

Criminal Act, which increases the sentence for any person convicted of being a

felon in possession of a firearm who has three prior convictions for violent felonies

or serious drug offenses. See Hylor v. United States, 896 F.3d 1219, 1223 (11th

Cir. 2018) (majority opinion); id. at 1224-27 (Jill Pryor, J., concurring in result)

(making essentially the same argument I make today).

District courts within our circuit lead the pack in imposing sentences under

these enhancement statutes. 2 It is critically important that we of all circuits get this

right. I dissent from the denial of rehearing en banc.

2
In 2016—the last year for which the United States Sentencing Commission has reported
complete data—only the Fourth Circuit’s district courts handed down more sentences under
§ 924(c) than ours did. See United States Sentencing Comm’n, Mandatory Minimum Penalties
for Firearms Offenses in the Federal Criminal Justice System 72-74 (2018). That same year,
district courts within our circuit imposed more sentences enhanced under the Armed Career
Criminal Act than any other circuit. Id. at 36 (reporting that in 2016 the Eleventh Circuit’s
district courts handed down 26.6% of ACCA-enhanced sentences, by far the most of any circuit).
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