Telcy v. United States

20 F.4th 735

Jacques Hernes TELCY, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 19-13029

United States Court of Appeals, Eleventh Circuit.

Filed: December 10, 2021

David Oscar Markus, Markus/Moss, PLLC, Miami, FL, for Petitioner-Appellant.

Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, Laura Thomas Rivero, Daniel Matzkin, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Respondent-Appellee.

Before Wilson, Lagoa, and Brasher, Circuit Judges.

Lagoa, Circuit Judge:

Jacques Telcy appeals from an order dismissing his 28 U.S.C. § 2255 habeas petition as second or successive. This appeal asks us to determine whether a sentence reduction under section 404(b) of the First Step Act of 2018 qualifies as a "new judgment" for purposes of the bar on second or successive § 2255 motions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. If it does, then it resets the clock for habeas corpus purposes and allows a criminal defendant to file a new, "first" habeas petition. If it does not, as the district court concluded, then any subsequent habeas petition will be deemed "second or successive," and the defendant must first obtain authorization from the Court of Appeals before filing a second § 2255 habeas petition. Without such authorization, a district court lacks jurisdiction and must dismiss a second or successive § 2255 petition as unauthorized.

We conclude that a sentence reduction under the First Step Act does not constitute a new judgment and thus does not reset the habeas clock. When a district court judge reduces a sentence under the First Step Act, the court is not authorized to conduct a plenary, de novo resentencing.

Rather, the First Step Act allows only for sentence reductions for covered offenses. A sentence reduction for a covered offense under the First Step Act neither requires the district court to reconsider the relevant sentencing factors nor requires the district court to hold a hearing where the defendant must be present for the sentence reduction. Indeed, a sentence reduction under the First Step Act does not affect the validity or lawfulness of the underlying sentence. The First Step Act allows, as a matter of legislative grace, district courts to exercise their discretion to issue sentence reductions.

Because a sentence reduction under the First Step Act does not constitute a new judgment for purposes of AEDPA's bar on second or successive habeas petitions, Telcy was required to obtain authorization from this Court before filing his second § 2255 petition. Without such authorization, the district court lacked jurisdiction to entertain the petition. We therefore affirm the district court's order dismissing Telcy's § 2255 petition as second or successive.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 16, 2008, a federal grand jury returned a four count superseding indictment charging Telcy with the following offenses: (1) possession with the intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) ; (2) possession with the intent to distribute 500 grams or more of powder cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) ; (3) using and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (4) possession of a firearm after previously having been convicted of a felony offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Because Telcy had three previous convictions for felony drug crimes in Florida, the government filed a notice of intent to seek an enhancement of Telcy's sentence under 18 U.S.C. § 851. A jury found Telcy guilty on all counts.

The district court sentenced Telcy to a term of life imprisonment as to Count 1 due to his armed career criminal enhancement, along with other concurrent and consecutive sentences for the other three counts (which are not at issue on appeal). Telcy appealed his conviction and sentence, and this Court affirmed. See United States v. Telcy , 362 F. App'x 83 (11th Cir. 2010).

In 2010, Telcy filed a pro se § 2255 habeas petition, arguing that his attorney rendered ineffective assistance of counsel and that the statutes under which he was convicted were unconstitutional. The district court denied the habeas petition as well as a Certificate of Appealability. After timely appealing, Telcy requested that this Court grant a Certificate of Appealability, which was denied.

In 2013, Telcy filed an application with this Court for permission to file a second or successive § 2255 habeas petition, which a panel of this Court denied. In 2016, Telcy again filed an application seeking this Court's permission to file a second or successive habeas petition, arguing that his sentence enhancement was unconstitutional in light of the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause in the Armed Career Criminal Act ("ACCA") was unconstitutional. In denying Telcy's second application, a panel of this Court concluded that Telcy's total sentence would not be impacted by Johnson as his total sentence did not exceed the statutory maximum sentence and the sentence for counts 2 and 4 ran concurrently to a mandatory minimum life sentence.

On December 21, 2018, Congress enacted the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, into law. A defendant "is eligible for a sentence reduction under the First Step Act only if he previously received ‘a sentence for a covered offense.’ " Terry v. United States , ––– U.S. ––––, 141 S. Ct. 1858, 1862, 210 L.Ed.2d 108 (2021) (quoting First Step Act § 404(b), 132 Stat. at 5222). The First Step Act made retroactive the statutory penalties for covered offenses enacted under the Fair Sentencing Act thus allowing defendants like Telcy—who were convicted before the enactment of the Fair Sentencing Act—to take advantage of the Fair Sentencing Act of 2010's more lenient sentencing provisions. See id. (explaining that the First Step Act defines "covered offense" as " ‘a violation of a Federal criminal statute, the statutory penalties for which were modified by’ certain provisions in the Fair Sentencing Act" (quoting First Step Act § 404(a), 132 Stat. at 5222)); United States v. Stevens , 997 F.3d 1307, 1312 n. 2 (11th Cir. 2021) ; see also Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372.

In February 2019, Telcy, through counsel, filed a motion for sentence reduction under the First Step Act in the district court. Although the government agreed that Telcy was eligible under the First Step Act for a sentence reduction on Count 1, as the penalty had been reduced from a mandatory term of life imprisonment to a term of between ten years and life, the government nonetheless argued that the district court should deny the motion based on Telcy's criminal history, the trial evidence, and the 18 U.S.C. § 3553 factors. On February 26, 2019, the district court granted in part Telcy's First Step Act motion and reduced Telcy's sentence on Count 1 from a term of life imprisonment to a term of 235 months. The district court further reduced the term of supervised release to eight years. The district court did not hold a hearing, did not revisit its previous factual findings, and did not discuss the other counts for which Telcy was convicted.

In April 2019, Telcy filed another application with this Court seeking permission to file a second or successive § 2255 habeas petition, arguing that, because his guideline range was based on the ACCA enhancement and the district court considered this guideline range when it imposed a reduced sentence, he would suffer adverse collateral consequences if he were not allowed to challenge the enhancement in light of Johnson . A panel of this Court denied this application, noting that nothing in the record showed or suggested that the district court had relied on ACCA's residual clause in sentencing Telcy and that, as a result, Telcy had failed to make the requisite showing that he was more likely than not sentenced under it. See Order, In re: Jacques Telcy , No. 19-11619 (11th Cir. May 29, 2019) (relying on Beeman v. United States , 871 F.3d 1215, 1221–22 (11th Cir. 2017) ); see also Beeman , 871 F.3d at 1221–22 ("To prove a Johnson claim, the movant must show that—more likely than not—it was use of the residual clause that led to the sentencing court's enhancement of his sentence.").

In July 2019, Telcy filed a pro se § 2255 habeas petition in the district court challenging the district court's February 2019 sentence reduction without seeking this Court's permission. In that petition, he argued that he was not required to obtain this Court's permission before filing his habeas petition because his First Step Act sentence reduction constituted a "new judgment" under Magwood v. Patterson , 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). On the merits, Telcy raised the following two habeas claims: (1) that he was wrongly convicted under the ACCA and (2) that his counsel rendered ineffective assistance.

The district court denied Telcy's habeas petition, concluding that it lacked jurisdiction to hear the petition as Telcy's petition was a second or successive § 2255 motion that had not been authorized by a Certificate of Appealability from this Court. In doing so, the district court rejected Telcy's argument that a sentence reduction under the First Step Act was a "new judgment" under Magwood . Telcy filed a motion for reconsideration, which was denied. This appeal followed.¹

II. STANDARD OF REVIEW

"We review de novo whether a petition for a writ of habeas corpus is second or successive." Patterson v. Sec'y, Fla. Dep't of Corr. , 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc); see also Stewart v. United States , 646...