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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12945
Non-Argument Calendar
____________________
EMILIO GOMEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cv-22057-DPG
____________________
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2 Opinion of the Court 20-12945
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Emilio Gomez appeals the district court’s denial of his suc-
cessive section 2255 motion collaterally attacking his conviction for
possessing a firearm in furtherance of a crime of violence or drug
trafficking crime, in violation of 18 U.S.C. section 924(c), because it
“may have rested” on an invalid predicate offense. Because
Gomez’s arguments are foreclosed by our recent decision in
Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 25, 2006, a confidential informant met Nelson
Peña, Gomez’s eventual coconspirator, and discussed a plan to rob
a cocaine-filled tractor-trailer. Peña later introduced the informant
to Gomez and Reynaldo Aviles, another future coconspirator, and
the four met to discuss plans to rob the tractor-trailer at gunpoint.
At the meeting, Gomez suggested that they rob the tractor-trailer
dressed as the police and steal the drugs but leave the tractor-trailer
behind.
During the evening of September 6, 2006, Gomez, Peña,
Aviles, and three others “got everything ready”—“the guns and
stuff”—and discussed their plan to wear “police shirts” and shout
“police” as they approached the tractor-trailer so the driver would
“get scared and give [them] everything.” Gomez, Peña, and Aviles
then met with the informant at a gas station to do a “drive-by” of
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20-12945 Opinion of the Court 3
the tractor-trailer, and Peña told the informant that they planned
to bring firearms for the robbery.
After the drive-by, the crew rendezvoused back at the gas
station and drove three cars to the warehouse where they expected
to find the tractor-trailer; Gomez was one of the drivers. When
they arrived, three members of the crew approached the tractor-
trailer, and one screamed “police” as another opened the tractor-
trailer door—all according to plan. But the real police were there
waiting. A shootout ensued, and the police killed one member of
the crew and wounded another. The police then arrested Gomez.
A grand jury indicted Gomez for: (1) conspiring to possess
with intent to distribute cocaine, in violation of 21 U.S.C. sections
841(a)(1) and 846; (2) attempting to possess with intent to distribute
cocaine, in violation of 21 U.S.C. sections 841(a)(1) and 846; (3) con-
spiring to commit a Hobbs Act robbery, in violation of 18 U.S.C.
section 1951(a); (4) attempting to commit a Hobbs Act robbery, in
violation of 18 U.S.C. section 1951(a); (5) possessing a firearm dur-
ing a drug trafficking crime or a crime of violence, in violation of
18 U.S.C. section 924(c)(1)(A); and (6) possessing a firearm as a
felon, in violation of 18 U.S.C. section 922(g)(1). As to the pos-
sessing a firearm during a drug trafficking crime or crime of vio-
lence charge, the indictment alleged that Gomez possessed a fire-
arm in furtherance of the first four counts: the cocaine distribution
charges and the Hobbs Act robbery charges were all listed as pred-
icate offenses.
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4 Opinion of the Court 20-12945
The jury found Gomez guilty on all counts in a general ver-
dict. The district court then sentenced Gomez to life imprison-
ment on the drug charges, 240 months on the Hobbs Act charges,
and 120 months for possessing a firearm as a felon, all served con-
currently; and 84 months for possessing a firearm during a drug
trafficking crime or a crime of violence, to be served consecutively.
We upheld Gomez’s convictions and sentences on direct appeal.
See generally United States v. Gomez, 302 F. App’x 868 (11th Cir.
2008). In 2009, Gomez filed an unsuccessful section 2255 motion.
In 2016, after the Supreme Court held in Johnson v. United
States, 576 U.S. 591, 597 (2015), that the residual clause of the
Armed Career Criminal Act was “unconstitutionally vague,”
Gomez sought permission to file a second section 2255 motion.
We granted his application because we couldn’t tell which count
the jury relied on when it convicted him of possessing a firearm
during a drug trafficking crime or a crime of violence and because
we hadn’t yet decided whether attempted Hobbs Act robbery was
“categorically” a crime of violence under section 924(c)’s elements
clause. In re Gomez, 830 F.3d 1225, 1227–28 (11th Cir. 2016).
Gomez then filed his second section 2255 motion. In it, he
argued that, because conspiracy to commit Hobbs Act robbery un-
der 18 U.S.C. section 1951 was a crime of violence only under sec-
tion 924(c)(3)’s residual clause, which was unconstitutionally
vague, his section 924(c) conviction may have rested on an invalid
predicate. The government opposed Gomez’s motion, arguing
that Gomez procedurally defaulted his vagueness claim and that
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20-12945 Opinion of the Court 5
the claim failed on the merits because Johnson didn’t apply to sec-
tion 924(c).
Several legal developments followed the government’s re-
sponse. First, we held that attempted Hobbs Act robbery categor-
ically qualifies as a crime of violence under section 924(c)(3)’s ele-
ments clause. See United States v. St. Hubert, 909 F.3d 335, 351–
53 (11th Cir. 2018), abrogated on other grounds by United States v.
Davis, 139 S. Ct. 2319, 2336 (2019). Second, the Supreme Court
extended the reasoning of Johnson to hold that section 924(c)(3)’s
residual clause was “unconstitutionally vague.” Davis, 139 S. Ct.
2336; see also Granda, 990 F.3d at 1283–84 (discussing the legal de-
velopments since Johnson). And third, post-Davis, we held that
conspiracy to commit Hobbs Act robbery is not a crime of vio-
lence. See Brown v. United States, 942 F.3d 1069, 1075–76 (11th
Cir. 2019).
In 2020, the district court denied Gomez’s motion. The dis-
trict court concluded that Gomez “demonstrated cause for his fail-
ure to raise his Davis claim on direct review since the legal basis for
his claim was ‘not reasonably available to counsel at the time of
[Gomez]’s appeal,’” but that he “could neither establish that he was
actually innocent of violating [section] 924(c) . . . nor that the now-
defunct residual clause played any role in his [section] 924(c) con-
viction.” The district court concluded that Gomez “could not es-
tablish prejudice and was thus procedurally defaulted from bring-
ing his Davis claim.” It then issued a certificate of appealability to
address: (1) “the correct legal standard that [Gomez] must meet in
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6 Opinion of the Court 20-12945
order to prove that he is entitled to relief[,] and (2) the precedential
weight that should be afforded to prior published panel decisions
on applications for second or successive motions to vacate.”
STANDARD OF REVIEW
We review the district court’s section 2255 factual findings
for clear error and its legal determinations de novo. United States
v. Pickett, 916 F.3d 960, 964 (11th Cir. 2019).
DISCUSSION
The Armed Career Criminal Act makes it a separate crime
to use or carry a firearm “during and in relation to,” or possess a
firearm “in furtherance of,” any “crime of violence or drug traffick-
ing crime.” 18 U.S.C. § 924(c)(1)(A) (2006) (amended 2018). The
Act defines a “crime of violence” as a felony offense that: (A) “has
as an element the use, attempted use, or threatened use of physical
force against the person or property of another”; or (B) “by its na-
ture, involves a substantial risk that physical force against the per-
son or property of another may be used in the course of commit-
ting the offense.” Id. § 924(c)(3)(A)–(B). The first part of the defi-
nition is known as the “elements clause,” and the second part is
known as the “residual clause.” Granda, 990 F.3d at 1284. In Davis,
the Supreme Court held that section 924(c)(3)’s residual clause was
unconstitutionally vague. 139 S. Ct. at 2336.
Gomez argues that, because 924(c)(3)’s residual clause is un-
constitutionally vague and his conspiracy to commit Hobbs Act
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20-12945 Opinion of the Court 7
robbery conviction doesn’t qualify as a “crime of violence” under
924(c)(3)’s elements clause, his section 924(c) conviction “may
have rested” on a constitutionally invalid predicate. He contends
that “the jury’s general verdict” makes it “impossible to say” which
predicate offense the jury relied on for its verdict. So, he says, the
district court erred in denying his motion.
The government responds that Gomez procedurally de-
faulted his claim by not raising it on direct appeal. “Gomez has no
cause to excuse his default” because his vagueness challenge was
not “novel,” the government argues, and Gomez cannot show “ac-
tual prejudice” or “actual innocence.” The government continues
that, “[e]ven if he had not procedurally defaulted his claim, Gomez
is not entitled to relief on the merits” because “the Hobbs Act con-
spiracy predicate is inextricably intertwined with the three other,
still-valid predicate offenses.” According to the government, “if the
jury found that Gomez possessed a firearm in furtherance of his
conspiracy to commit Hobbs Act robbery,” there “can be no grave
doubt” that the jury “also found that he possessed a firearm in fur-
therance of the other crime of violence and drug trafficking predi-
cates of which the jury convicted him.”
We agree with the government and conclude that Gomez’s
appeal is controlled by our recent decision in Granda. Granda an-
swered the first issue in Gomez’s certificate of appealability: to
overcome the procedural default, it was Gomez’s “burden to show
a substantial likelihood of actual prejudice.” See 990 F.3d at 1291.
And “relief is proper only if the court has grave doubt about
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8 Opinion of the Court 20-12945
whether a trial error of federal law had substantial and injurious
effect or influence in determining the jury’s verdict.” Id. at 1292
(alteration adopted). Gomez hasn’t made either showing. We con-
clude, like in Granda, that Gomez’s claim is procedurally defaulted,
and, even if it wasn’t, he hasn’t shown grave doubt that the residual
clause error had a substantial and injurious effect on the jury’s ver-
dict.
We have already answered the second issue in Gomez’s cer-
tificate of appealability about the precedential weight afforded to
prior published panel decisions on second and successive section
2255 applications: the “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.”1 In re Lambrix,
776 F.3d 789, 794 (11th Cir. 2015); St. Hubert, 909 F.3d at 346
(same).
Procedural Default
A prisoner may move to vacate his sentence under section
2255 because it was imposed in violation of the Constitution or
laws of the United States. 28 U.S.C. § 2255(a). But a section 2255
claim may be procedurally defaulted if the movant could have
1
Gomez argues that we should take the “opportunity” to reconsider this rule.
But “we are bound by all prior panel decisions, ‘unless and until they are over-
ruled or undermined to the point of abrogation by the Supreme Court or by
this Court sitting en banc.’” Hylor v. United States, 896 F.3d 1219, 1223–24
(11th Cir. 2018) (alteration adopted and citation omitted).
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raised the issue, but failed to, on direct appeal. See Bousley v.
United States, 523 U.S. 614, 622 (1998). A movant can overcome
the procedural default by establishing either “cause and actual prej-
udice,” or “that he is actually innocent.” Id. (cleaned up).
“Where a constitutional claim is so novel that its legal basis
is not reasonably available to counsel, a defendant has cause for his
failure to raise the claim.” Granda, 990 F.3d at 1286 (alteration
adopted and citation omitted). “To establish novelty ‘sufficient to
provide cause’ based on a new constitutional principle, [a movant]
must show that the new rule was ‘a sufficiently clear break with the
past, so that an attorney representing him would not reasonably
have had the tools for presenting the claim.’” Id. (alteration
adopted and citation omitted). “[T]he question is not whether sub-
sequent legal developments have made counsel’s task easier, but
whether at the time of the default the claim was ‘available’ at
all.” McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001)
(citation omitted). For this reason, futility doesn’t constitute cause
where the movant’s argument was simply “unacceptable to that
particular court at that particular time.” Bousley, 523 U.S. at 623
(citation omitted).
Gomez did not argue in the trial court, or on direct appeal,
that his section 924(c) conviction was invalid because the residual
clause was unconstitutionally vague. “He, therefore, procedurally
defaulted this claim and cannot succeed on collateral review unless
he can either (1) show cause to excuse the default and actual prej-
udice from the claimed error, or (2) show that he is actually
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10 Opinion of the Court 20-12945
innocent” of the section 924(c) conviction. See Granda, 990 F.3d at
1286. Because Gomez hasn’t shown “cause and actual prejudice”
or “actual innocence,” he defaulted on his claim. See Bousley, 523
U.S. at 622–23 (citation omitted).
Cause
In Granda, we rejected the movant’s contention that his sec-
tion 924(c) vagueness challenge was sufficiently novel to establish
cause to excuse his procedural default. Id. at 1285–88. Although
Davis announced a new constitutional rule with retroactive appli-
cation, In re Hammoud, 931 F.3d 1032, 1038–39 (11th Cir. 2019),
Granda needed to “show that the new rule was ‘a sufficiently clear
break with the past, so that an attorney representing him would
not reasonably have had the tools for presenting the claim,’”
Granda, 990 F.3d at 1286 (alteration adopted and citation omitted).
We determined that Granda’s claim didn’t fit into any of the three
circumstances where novelty might constitute cause for defaulting
a claim: (1) “when a decision of the Supreme Court explicitly over-
rules one of its precedents”; (2) “when a Supreme Court decision
overturns a ‘longstanding and widespread practice to which the Su-
preme Court has not spoken, but which a near-unanimous body of
lower court authority has expressly approved”; and (3) “when a Su-
preme Court decision disapproves of ‘a practice the Supreme Court
arguably has sanctioned in prior cases.’” Id. (alterations adopted
and citation omitted). We concluded that Granda failed to show
cause to excuse his procedural default because “[t]he tools existed
to challenge myriad other portions of [section] 924(c) as vague” and
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20-12945 Opinion of the Court 11
therefore those tools “existed to support a similar challenge to its
residual clause.” Id. at 1288.
The same reasoning applies to Gomez’s section 924(c)
vagueness challenge. Like in Granda, the “building blocks” of
Gomez’s vagueness challenge “existed” in relation to “myriad
other portions” of section 924(c) and thus existed “to support a sim-
ilar challenge to its residual clause.” See id.; McCoy, 266 F.3d 1258.
Gomez failed to demonstrate “a sufficiently clear break with the
past, so that an attorney representing him would not reasonably
have had the tools” for arguing that the residual clause’s vagueness
invalidated his section 924(c) conviction. See Granda, 990 F.3d at
1286 (alteration adopted and citation omitted). Gomez’s claim was
not sufficiently novel to establish cause to excuse his procedural
default.
Prejudice
In Granda, we also determined that the movant could not
overcome a procedural default of his vagueness claim because he
could not show “actual prejudice.” Id. at 1288–91. “To prevail on
a cause and prejudice theory, a [movant] must show actual preju-
dice,” meaning “more than just the possibility of prejudice; it re-
quires that the error worked to the [movant]’s actual and substan-
tial disadvantage, infecting his entire trial with error of constitu-
tional dimensions.” Id. at 1288 (citation omitted). To show actual
prejudice, a movant would have to show a “substantial likelihood”
that the jury relied solely on the Hobbs Act robbery conspiracy as
the predicate for his section 924 conviction. Id.
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12 Opinion of the Court 20-12945
We found that “Granda [could not] make this showing.” Id.
at 1289. “Based on his role as a lookout in a conspiracy and an at-
tempt to rob at gunpoint a truck carrying some sixty to eighty kil-
ograms of cocaine, the jury unanimously found Granda guilty of
conspiracy and attempt to possess cocaine with intent to distribute,
attempted carjacking, conspiracy to commit Hobbs Act robbery,
and attempt to commit Hobbs Act robbery.” Id. “The trial record
ma[de] it abundantly clear that all of these findings rested on the
same operative facts and the same set of events—the jury found
beyond a reasonable doubt that Granda had conspired and at-
tempted to rob the truck in order to possess and distribute the co-
caine it held.” Id.
We determined that “[t]he objective of the robbery and the
carjacking was the same: to obtain and sell the multi-kilogram
quantity of cocaine that was to be taken by force from the truck.”
Id. “So the jury could not have concluded that Granda conspired
to possess a firearm in furtherance of his robbery conspiracy with-
out also finding at the same time that he conspired to possess the
firearm in furtherance of his conspiracy and attempt to obtain and
distribute the cocaine, his attempt at carjacking, and the attempt at
the robbery itself.” Id.
Just like in Granda, the trial record here “makes it abun-
dantly clear” that all of the jury’s findings “rested on the same op-
erative facts and the same set of events” and Gomez has failed to
show a “substantial likelihood” that his section 924(c) conviction
was predicated solely on his Hobbs Act conspiracy conviction. See
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20-12945 Opinion of the Court 13
id. at 1288–89. The district court instructed the jury that it could
find Gomez guilty of violating section 924(c) if it found beyond a
reasonable doubt that he “committed a drug trafficking offense”
and “that during the commission of that offense, [he] knowingly
carried a firearm in relation to that drug trafficking crime . . ., as
charged in the indictment,” or “knowingly possessed a firearm in
furtherance of that drug trafficking crime . . ., as charged in the in-
dictment.” The jury found beyond a reasonable doubt that Gomez
committed two drug trafficking crimes. And the general jury ver-
dict did not specify which predicate offense or offenses the jury re-
lied on for Gomez’s section 924(c) conviction.
Like in Granda, Gomez’s Hobbs Act conspiracy, attempted
Hobbs Act robbery, and drug trafficking crimes were “inextricably
intertwined” because they all arose out of the same attempted rob-
bery of the cocaine-filled tractor-trailer. See id. at 1280 (“Among
the shortcomings that defeat [Granda’s] claim is a fundamental one
that cuts across both the procedural and merits inquiries: all of the
[section] 924(o) predicates are inextricably intertwined, arising out
of the same cocaine robbery scheme.”). As Gomez acknowledged
in his initial brief, it was not clear which predicate offense or of-
fenses “formed the basis of the [section] 924(c) conviction[].” With-
out showing a “substantial likelihood” that the jury relied on
Hobbs Act conspiracy—and “only” Hobbs Act conspiracy—as the
predicate offense for the section 924(c) verdict, Gomez cannot
show actual prejudice under Granda. See id. at 1288 (“More spe-
cifically, [the movant] must establish a substantial likelihood that
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14 Opinion of the Court 20-12945
the jury relied only on the [Hobbs Act conspiracy] conviction, be-
cause reliance on any of [the other counts] would have provided a
wholly independent, sufficient, and legally valid basis to convict
[under section 924(o)].”).
Actual Innocence
“The actual innocence exception to the procedural default
bar is ‘exceedingly narrow in scope as it concerns a [movant]’s ac-
tual innocence rather than his legal innocence. Actual innocence
means factual innocence, not mere legal innocence.’” Id. at 1292
(citation omitted). Gomez doesn’t argue that he is “actually inno-
cent” of the section 924(c) offense. See id. at 1286. And, because
Gomez cannot show “cause and actual prejudice” or “actual inno-
cence,” he cannot overcome his procedural default. See Bousley,
523 U.S. at 622–23 (citation omitted).
Merits
In Granda, we also concluded in the alternative that, even if
the vagueness argument was not procedurally defaulted, the mo-
vant’s claim failed on the merits because “[t]he inextricability of the
alternative predicate crimes compel[led] the conclusion that the er-
ror Granda complain[ed] about . . . was harmless.” 990 F.3d at
1292.
The same result follows here. The jury unanimously found
Gomez guilty of conspiring to possess with intent to distribute co-
caine, attempting to possess with intent to distribute cocaine, con-
spiring to commit Hobbs Act robbery, attempting to commit
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20-12945 Opinion of the Court 15
Hobbs Act robbery, possessing a firearm during a drug trafficking
crime or a crime of violence, and possessing a firearm as a felon.
Each of the two cocaine charges was an independent predicate of-
fense to the section 924(c) charge of possessing a firearm during a
drug trafficking crime. Just like in Granda, the record “makes it
abundantly clear that all of [the jury’s] findings rested on the same
operative facts and the same set of events.” See id. at 1289.
Gomez’s conspiracy to commit Hobbs Act robbery was “inextrica-
bly intertwined” with his predicate offenses of conspiring and at-
tempting to possess cocaine with intent to distribute it. See id. at
1293. “There is little doubt that if the jury found that” Gomez pos-
sessed “a firearm in furtherance of his conspiracy to commit Hobbs
Act robbery, it also found that he” possessed “a firearm in further-
ance of the other crime[]of[]violence and drug[]trafficking predi-
cates of which the jury convicted him.” See id.
Because we have no “grave doubt” that the inclusion of the
invalid predicate offense—conspiracy to commit Hobbs Act rob-
bery—had a “substantial” influence in determining the jury’s ver-
dict, any error resulting from the inclusion of the invalid predicate
was harmless. See Davis v. Ayala, 576 U.S. 257, 267–68 (2015) (ex-
plaining that, on collateral review under the harmless error stand-
ard, “relief is proper only if the federal court has grave doubt about
whether a trial error of federal law had substantial and injurious
effect or influence in determining the jury’s verdict” (cleaned up)).
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16 Opinion of the Court 20-12945
CONCLUSION
We conclude that Gomez procedurally defaulted his claim
and, also, that any error resulting from the inclusion of the invalid
predicate was harmless. Thus, we affirm the district court’s denial
of Gomez’s successive section 2255 motion to vacate.
AFFIRMED.