In re Williams

898 F.3d 1098

IN RE: Octavious WILLIAMS, Petitioner.

No. 18-12538

United States Court of Appeals, Eleventh Circuit.

Filed: August 1, 2018

Octavious Williams, Pro Se, Ware SP—Inmate Legal Mail, 3620 Harris Rd., Waycross, GA 31503-0311, for Petitioner.

Christopher Michael Carr, Attorney General's Office, 40 CAPITOL Sq. SW, Atlanta, GA 30334, for Successive Habeas Respondent.

Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b)

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

BY THE PANEL:

We sua sponte vacate our order in this case dated July 13, 2018 and replace it with this published order.

Pursuant to 28 U.S.C. § 2244(b)(3)(A), Octavious Williams has filed an application seeking an order authorizing the district court to consider a second or successive petition for a writ of habeas corpus. Such authorization may be granted only if:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). "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).

Section 2244(b)(1) of Title 28, however, provides that "a claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). A "claim" remains the same so long as "[t]he basic thrust or gravamen of [the applicant’s] legal argument is the same." In re Hill , 715 F.3d 284, 294 (11th Cir. 2013). For applications requesting authorization to file a second or successive petition pursuant to § 2254, this Court has consistently applied § 2244(b)(1) to prohibit the filing of a claim that is the same as a claim presented in a petitioner’s initial habeas petition before the district court. See In re Everett, 797 F.3d 1282, 1291 (11th Cir. 2015) ; In re Mills, 101 F.3d 1369, 1370 (11th Cir. 1996).

Court records show that Williams was convicted in 2001 following a jury trial. Following a series of events not relevant to the present application, he filed, in 2007, his original § 2254 petition, pro se. In it, he raised a number of claims, including ground two, labeled "ineffective assistance of trial counsel; denial of right to impartial trial; biase[d] judge, " and ground three, labeled "ineffective assistance of trial counsel; biase[d] judge. " In support, he argued that his state court trial judge engaged in "improper acts" reflecting bias, that his trial attorney knew about those acts but did nothing, and that counsel was therefore ineffective by not moving for recusal. The district court ultimately found that Williams’s § 2254 petition was untimely, and denied it with prejudice.

In his pro se application, Williams indicates that he wishes to raise one claim in a successive § 2254 petition. He argues that trial counsel was ineffective "because the trial court judge was biased against him." He concedes that he raised this claim in a prior petition, but contends that it relies on a new rule of constitutional law. However, he does not provide a citation to support that contention. And he also concedes that his claim does not rely on newly discovered evidence.

Williams’s application fails for two reasons. First, Williams raised an "ineffective assistance of counsel—biased judge" claim in his original § 2254 petition. Thus, to the extent that the gravamen of the claims is the same, his current claim is precluded by section 2244(b)(1) and "shall be dismissed." 28 U.S.C. § 2244(b)(1) ; In re Mills, 101 F.3d at 1370.

Second, even if Williams’s current claim is not precluded by § 2244(b)( 1), he still has not made a prima facie showing that he would be entitled to relief. Although Williams contends that his claim relies on a new rule of constitutional law, he has failed to cite or otherwise identify a case that would support his claim. Thus, he does not satisfy § 2244(b)(2) ’s criteria.

Accordingly, Williams’s application is DISMISSED to the extent that it is barred by In re Mills and 28 U.S.C. § 2244(b)(1), and DENIED to the extent that it is not.

WILSON, Circuit Judge, with whom MARTIN and JILL PRYOR, Circuit Judges, join, specially concurring:

I write this special concurrence in light of the rule recently adopted by a panel of this court in United States v. St. Hubert , 883 F.3d 1319, 1328–29 (11th Cir. 2018) ("[W]e now hold in this direct appeal that law established in published three-judge orders issued pursuant to 28 U.S.C. § 2244(b) in the context of applications for leave to file second or successive § 2255 motions are binding precedent on all subsequent panels of this Court, including those reviewing direct appeals and collateral attacks.").

* * * * *

On May 5, 2016, federal inmate Markson Saint Fleur used a typewriter at the Federal Correctional Institution in Bennettsville, South Carolina to complete his Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255. After briefly reciting his conviction and procedural history, he typed out his legal argument: forty-three words, with citations to two Supreme Court cases.¹ He signed the form and placed it in the mail. We received it four days later, on May 9. Although Saint Fleur served the United States, the government did not file a response. In fact, nothing else was filed on our docket.

The motions panel² reached its decision on this application thirty days later, on June 8, 2016, as required by statute. Based on these forty-three words of argument, the panel majority wrote an order denying the application and designated it for publication in the Federal Reporter. Holding for the first time in the Eleventh Circuit that Hobbs Act robbery "clearly qualifies as a ‘crime of violence’ under the use-of-force clause in [ 18 U.S.C.] § 924(c)(3)(A)," the panel found that Saint Fleur could not make a prima facie showing under 28 U.S.C. § 2255(h). In re Saint Fleur , 824 F.3d at 1340–41. Sixteen days later—in another published order and under similar circumstances³ —the same motions panel, partially relying upon In re Saint Fleur , found that aiding and abetting Hobbs Act robbery also "clearly qualifies" as a crime of violence under the use-of-force clause. In re Colon , 826 F.3d at 1305. Saint Fleur and Colon had no avenues of review available: Per statute, panel orders of this type cannot be reviewed by the Supreme Court and may not be the subject of a petition for rehearing en banc.

The St. Hubert panel, in a direct appeal from a criminal conviction—with full briefing, oral argument by attorneys on both sides, and no thirty-day time limit—held that In re Saint Fleur and In re Colon bound it as prior panel precedent. With only panel orders and a generic citation to our prior-panel-precedent rule for support, the St. Hubert panel explicitly held:

Lest there be any doubt, we now hold in this direct appeal that law established in published three-judge orders issued pursuant to 28 U.S.C. § 2244(b) in the context of applications for leave to file second or successive § 2255 motions are binding precedent on all subsequent panels of this Court , including those reviewing direct appeals and collateral attacks, "unless and until [they are] overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc."

United States v. St. Hubert , 883 F.3d 1319, 1329 (11th Cir. 2018) (alteration in original) (emphasis added) (citation omitted).

So after St. Hubert , published panel orders—typically decided on an emergency thirty-day basis, with under 100 words of argument (often written by a pro se prisoner), without any adversarial testing whatsoever, and without any available avenue of review—bind all future panels of this court.

This is the first time that this court has held as much in a published merits opinion on direct appeal. Such a holding raises numerous institutional concerns for our Circuit, and this court should not have adopted it. But, unfortunately, we have.

* * * * *

Congress has delegated to the circuit courts a gatekeeping role when reviewing second or successive petitions under §§ 2244 and 2255. See 28 U.S.C. §§ 2244(b)(2)–(3), 2255(h). Generally, these sections provide that before filing a second or successive application, a petitioner must move this court "for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). We may review such petitions only for whether they 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). During this review, "we do not make any factual determinations." Jordan v. Sec’y, Dept. of Corr. , 485 F.3d 1351, 1357 (11th Cir. 2007). Rather, the statute permits us only to determine "whether the...