Summary
The Eleventh Circuit granted Wissam T. Hammoud leave to file a second or successive 28 U.S.C. § 2255 motion challenging his § 924(c) conviction under United States v. Davis. The court held that Davis announced a new substantive constitutional rule made retroactive by Supreme Court precedent and concluded that Hammoud made a prima facie showing that his conviction may have rested on § 924(c)’s unconstitutional residual clause.
Topics
Practice areas
Questions Presented
- Whether United States v. Davis announced a new rule of constitutional law for purposes of 28 U.S.C. § 2255(h)(2).
- Whether Davis was made retroactively applicable to cases on collateral review by the Supreme Court.
- Whether In re Baptiste barred Hammoud's successive application because he had previously raised a related Johnson- and Dimaya-based challenge.
- Whether Hammoud made a prima facie showing that his § 924(c) conviction may have rested solely on the statute's unconstitutional residual clause.
- Whether the authorization proceeding conclusively resolved the merits of Hammoud's Davis claim.
Holdings
- United States v. Davis announced a new substantive rule of constitutional law because it invalidated 18 U.S.C. § 924(c)(3)(B)'s residual clause and narrowed the class of persons eligible for punishment under § 924(c).
- For purposes of § 2255(h)(2), the Supreme Court's holdings in Davis and Welch necessarily dictate that Davis's new substantive rule applies retroactively to criminal cases that became final before Davis was announced.
- In re Baptiste does not bar Hammoud's present application because Davis announced a new constitutional claim distinct from the Johnson- and Dimaya-based claim raised in his prior application.
- Hammoud made a prima facie showing that his § 924(c) conviction may have implicated the unconstitutional residual clause because neither the Supreme Court nor the Eleventh Circuit had determined whether § 373 solicitation of murder qualifies as a crime of violence under the elements clause, the residual clause, or both.
- The authorization order did not decide the merits of Hammoud's Davis claim; the district court must determine whether the § 924(c) conviction resulted from application of solely the residual clause, with Hammoud bearing the burden of establishing entitlement to relief.
Key quotations
“So Hammoud has made a prima facie showing that his § 924(c) conviction in Count 5 may—not that it does, but it may—implicate § 924(c)’s residual clause and Davis.” (p. 11)
“Hammoud’s application is granted only as to his Davis claim challenging his § 924(c) firearm conviction in Count 5.” (p. 12)
Factual background
Hammoud pleaded guilty to four federal offenses, including solicitation to commit murder under 18 U.S.C. § 373 and use of a firearm during a crime of violence under 18 U.S.C. § 924(c). His plea agreement specified that the firearm was possessed during the solicitation offense. The district court imposed a consecutive 60-month sentence for the § 924(c) offense as part of a total 240-month sentence. Hammoud later asserted that the solicitation conviction could qualify as a § 924(c) crime of violence only under the residual clause invalidated in Davis.
Procedural history
Hammoud pleaded guilty in 2005 to retaliation against a witness, solicitation to commit murder, using a firearm during a crime of violence, and possession of a firearm by a convicted felon, receiving a total 240-month sentence. The Eleventh Circuit affirmed his convictions on direct appeal and dismissed his sentencing challenge under the plea-agreement waiver. His original § 2255 motion was denied in 2008. After the Eleventh Circuit denied a prior successive-motion application in 2018, Hammoud filed this application based on Davis, which was decided while the present application was pending. The court granted authorization as to his Davis challenge to the § 924(c) conviction.
Remand instructions
The district court shall consider the merits of Hammoud's § 2255 Davis claim, along with any defenses and arguments raised by the respondent. Hammoud must establish that his § 924(c) conviction resulted from application of solely the residual clause.