In re Cannon

931 F.3d 1236

IN RE: Ulysses CANNON, Petitioner.

No. 19-12533-F

United States Court of Appeals, Eleventh Circuit.

Date Filed: July 25, 2019

Ulysses Cannon, Yazoo City, MS, pro se.

Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Successive Habeas Respondent.

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

Before: TJOFLAT, HULL and JULIE CARNES, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Ulysses Cannon has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

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

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

28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

I. BACKGROUND

As a brief factual background, Cannon and several codefendants were charged with multiple drug, firearm, carjacking, and Hobbs Act robbery offenses stemming from a series of three armed home invasions in Miami-Dade County in the summer of 1997. Cannon and his codefendants targeted the homes of known drug dealers because they were likely to contain large quantities of drugs and cash. During the robberies, the defendants, while armed, forced their way into the homes, tied up and pistol-whipped the occupants, ransacked the homes, and took cash, jewelry, vehicles, and drugs, including marijuana or cocaine. Cannon participated in the first and third of the three home invasions and robberies. Cannon and his co-defendants’ robberies and drug crimes are intertwined as they were robbing other drug dealers’ stash houses in order to steal the drugs and then distribute the drugs stolen. In one home invasion and robbery, two cars were also stolen, which resulted in carjacking charges, too.

By superseding indictment, Cannon was charged with three overlapping conspiracies, all occurring between June 20, 1997 and September 23, 1997: (1) conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846 (Count 1); (2) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 2); and (3) conspiracy to use a firearm during and in relation to, and possess a firearm in furtherance of, a crime of violence and a drug-trafficking crime, namely the crimes "as set forth in Counts 1, 2, 4, 5, 7, 8, 10, 11, 12, and 13," in violation of 18 U.S.C. § 924(c) & (o) (Count 3).

In addition, in connection with the first home invasion on June 20, 1997, Cannon was charged with: (1) attempting to possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (Count 4); (2) Hobbs Act robbery of O.G. and R.G., in violation of § 1951(a) (Count 5); and (3) using a firearm during and in relation to, and possessing a firearm in furtherance of, a crime of violence and a drug-trafficking crime, namely the crimes set forth in Counts 4 and 5, in violation of § 924(c) (Count 6).

In connection with the last home invasion on September 23, 1997, Cannon was charged with: (1) possession with intent to distribute marijuana, in violation of § 841(a)(1) (Count 10), (2) Hobbs Act robbery of J.G. and V.F., in violation of § 1951(a) (Count 11); (3) two counts of carjacking, in violation of 18 U.S.C. § 2119 (Counts 12 and 13); and (4) using a firearm during and in relation to, and possessing a firearm in furtherance of, a crime of violence and a drug-trafficking crime, namely the crimes set forth in Counts 10, 11, 12, and 13, in violation of § 924(c) (Count 14). Cannon was also charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 15).¹

After a trial, the jury returned a general verdict finding Cannon guilty as charged on all counts. Notwithstanding the verdict, the district court granted Cannon’s Rule 29 motion for judgment of acquittal as to Counts 5 and 11, the two Hobbs Act robberies on June 20, 1997 and September 23, 1997, because the government had not shown that the theft of the items from these individual residences satisfied the minimal impact on commerce threshold. The district court then sentenced Cannon to a total term of 660 months’ imprisonment, consisting of concurrent sentences of 360 months as to Counts 1 and 4, 240 months as to Counts 2 and 3, 60 months as to Count 10, and 180 months as to Counts 12, 13, and 15, followed by consecutive sentences of 60 months as to Count 6 and 240 months as to Count 14.

In his direct appeal, Cannon raised two alleged trial errors relating to the admission of evidence of prior crimes. Cannon did not raise any issue as to his § 924(c) and (o) convictions on Counts 3, 6, and 14, the validity or sufficiency of the indictment as to those § 924(c) and (o) counts, or the jury’s general verdict. This Court affirmed Cannon’s convictions and sentences, and the Supreme Court denied his petition for writ of certiorari. United States v. Cannon , 76 F. App'x 283 (table) (11th Cir.) (unpublished), cert. denied, 540 U.S. 998, 124 S. Ct. 503, 157 L.Ed.2d 400 (2003).

In 2004, Cannon filed his original § 2255 motion, raising four ineffective assistance of counsel claims. Cannon did not raise any issue as to his § 924(c) and (o) convictions on Counts 3, 6, and 14, the validity or sufficiency of the indictment as to those § 924(c) and (o) counts, or the jury’s general verdict. The district court denied Cannon’s § 2255 motion on the merits, and the district court and this Court denied Cannon a certificate of appealability. Cannon did not file a petition for writ of certiorari.

Cannon then filed four prior applications to file successive § 2255 motions. In 2016, Cannon filed his first and second successive applications, seeking to challenge his enhanced concurrent sentence on Count 15 under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on Johnson v. United States, 576 U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). This Court denied these applications as Cannon had at least three qualifying prior drug and violent felony convictions without regard to the residual clause. In re Cannon, No. 16-11436 (11th Cir. Apr. 14, 2016); In re Cannon, No. 16-13777 (11th Cir. July 20, 2016). In July 2017, Cannon filed his third successive application, seeking to: (1) raise the same Johnson claim challenging his ACCA enhanced concurrent sentence on Count 15; (2) challenge for the first time his § 924(c) & (o) firearm convictions in Counts 3, 6, and 14 because some of his predicate crimes for the firearm convictions—conspiracy to commit Hobbs Act robbery and Hobbs Act robbery—were not crimes of violence; and (3) challenge his indictment charging multiple predicate crimes in a single § 924(c) count. This Court denied this application on the grounds that Johnson did not invalidate the residual clause in § 924(c)(3)(B), and the Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), does not apply retroactively, citing Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014). In re Cannon, No. 17-13178 (11th Cir. July 31, 2017) .

Then, in July 2018, Cannon filed his fourth successive application, seeking to challenge his § 924(c) & (o) firearm convictions because he was charged in a duplicitous indictment, and some of his predicate crimes for the firearm convictions—conspiracy to commit Hobbs Act robbery and Hobbs Act robbery—no longer qualified as crimes of violence, in light of Sessions v. Dimaya, 584 U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), which we also denied. In re Cannon, No. 18-13133 (11th Cir. Dec. 4, 2018). In the most recent prior order, this Court explained, inter alia, that, in light of our precedent, Dimaya did not invalidate the residual clause in § 924(c)(3)(B) and that Cannon’s other challenges to the § 924(c) and (o) counts (Counts 3, 6, and 14) in his indictment are not based on a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review.

II. CURRENT APPLICATION

A. United States v. Davis

In his current application, Cannon challenges his § 924(c) and (o) firearm convictions in Counts 3, 6, and 14 of the indictment on the basis that one of the underlying predicates—conspiracy to commit Hobbs Act robbery—no longer qualifies as a crime of violence under the residual clause of § 924(c)(3)(B), in light of United States v. Davis , 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that § 924(c)(3)(B) is unconstitutionally vague. See Davis , 588 U.S. at ––––, 139 S. Ct. at 2336. Cannon indicates that his claim is based on new rules of constitutional law in Davis and Dimaya .² He further asserts that his indictment "charged multiple predicate offenses in a single § 924(c) and § 924(o) count," and that "the predicate offense or underlying crime of violence used was not specified and easily could be for conspiracy to commit Hobbs Act robbery."

Cannon’s proposed Davis claim...