# In re Leonard

> Court of Appeals for the Eleventh Circuit · July 13, 2016 · 655 F. App'x 765

URL: https://www.frixlaw.com/law-library/cases/8680286

## Case

- **Full name:** IN RE: Larry LEONARD
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 13, 2016
- **Citations:** 655 F. App'x 765
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Jordan, Marcus, Martin
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MARTIN, Circuit Judge,
concurring:
The Armed Career Criminal Act (ACCA) was designed to punish repeat offenders who have guns. Generally, a person who was earlier in his life convicted of a felony, and is then found with a gun, has committed a federal crime. ACCA was meant to sort out all those who commit this crime of being a felon in possession, in an effort to punish more serious offenders more harshly. Specifically, ACCA set up a scheme in which people with guns who already had one or two serious felony convictions can receive a sentence of up to ten years, but no more than ten years. However, for a felon who had three or more serious felony convictions (that fit a definition given in the statute); the floor for his sentence is fifteen years. Again, with one or two prior convictions, your sentence could not be more than ten years, but with three or more, your ACCA sentence could not be less than fifteen.
With so much at stake, federal judges across the country have, since the passage of ACCA, been daily called upon to decide whether a particular prior conviction on a man’s record (usually it is a man) is the type that triggers the minimum sentence of fifteen years rather than a sentence that can be no longer than ten. The statute said (in a lot more detail, and using a lot more words) that if the prior conviction was for a “violent felony” then it counts. For all of these years, different judges have been coming to different conclusions about what, exactly, is a “violent felony.” The standard by which federal judges were asked to decide what prior felonies count as “violent” became a real concern for Justice Scalia, in particular, and he tried for years to get his court to rule that one of the definitions of “violent felony” in ACCA was void for vagueness. After waging this battle for nearly ten years, in one of his final opinions for the Court, Justice Scalia finally convinced a majority of his colleagues. In Johnson v. United States, *771 576 U.S. —, 135 S.Ct. 2551 , 192 L.Ed.2d 569 (2015), the Supreme Court struck down ACCA’s so-called “residual clause” (which gave one definition of what is a “violent felony”) as unconstitutionally vague.
Based on the Johnson decision, federal judges now know that we cannot, in the future, give people harsher sentences based on the voided part of ACCA. The question then became, what happens to all the people who had been sentenced under this provision in the past? There are thousands of people already serving sentences arrived at by application of this language which we now know was no good. If a person was sentenced based on three prior convictions, but after the ruling in Johnson we know that person has only two such, convictions, then that person is incarcerated for a period longer than Congress authorized. Beyond that, there is most often a lot more at stake than just the difference between ten and fifteen years. Although ACCA requires a mandatory minimum 15 years, many ACCA sentences are quite a bit longer than that. For example, this court heard last month from a prisoner named Ira Simmons who was convicted 27 years ago of being a felon in possession of a gun. The maximum possible sentence for that conviction is normally 10 years. But because Mr. Simmons had three prior Florida convictions (for burglary, robbery, and assault), the judge used ACCA to impose a 50-year sentence. Without ACCA, Mr. Simmons’s mandatory sentencing range would have been 18 to 24 months, 1
Generally, prisoners suffering under a sentence that we later learn is illegal can get relief through what is called a § 2255 motion. However, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) narrowed that path to relief. The path is now narrow indeed. Under AEDPA, any inmate sentenced in federal court has one year from the date his direct appeal is final to file a § 2255 motion attacking his sentence. After an inmate has filed one § 2255 motion in the district court where he was sentenced, AEDPA says he can’t file another motion (what the statute refers to as a “second or successive” motion) unless he first asks permission from the court of appéals. Most ACCA prisoners already filed a § 2255 motion years ago, so the only way for them to get relief based on the Johnson decision is to come to a court of appeals and ask for permission to file another § 2255 motion in district court. Judges on this nation’s courts of appeals have now witnessed a flood of applications coming from inmates who believe that Johnson may mean their sentence is no longer valid. Remember, any one of these applications might be filed by a person whose sentence should, by law, be capped at ten years, but has been sentenced to multiples of the decade Congress authorized. The panel here addresses Larry Leonard’s third attempt to get our permission to seek relief for his sentence. We turned down his first and second tries.
When courts of appeals get these applications, what the statute directs us to do is “certiffy]” whether the applicant made “a prima facie showing” that his § 2255 motion will “contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. §§ 2244 (b)(3)(C), 2255(h). Yet in reviewing those applications we have been doing more than what the statute directs. The judges of this court, myself included, have been combing through sealed records from the prisoner’s original sentence hearing to speculate about whether the prison *772 er would win if we let him file in district court. After observing this process, I wrote last month that I’d become “wary of deciding whether to grant leave to file a second or. successive § 2255 petition based on a conclusion that the applicant’s proposed claim will fail on the merits.” In re Saint Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016) (Martin, J, concurring). In. another case I observed that “in the two months since Welch v. United States, — U.S. —, 136 S.Ct. 1257 , 194 L.Ed.2d 387 (2016), ... our. court has denied hundreds of applications to file § 2255 motions based on Johnson by scrutinizing whether the applicant’s proposed (in other words, not yet filed) motion will prevail on the merits.” In re McCall, 826 F.3d 1308, 1311 (11th Cir. 2016) (Martin, J., concurring). “[A]ll these decisions were made without briefing or argument from a lawyer, within a tight 30-day deadline.” Id. Most concerning of all is that none of these cases can be appealed. See 28 U.S.C. § 2244 (b)(3)(E).
We have now entered a new phase of this harmful endeavor. AEDPA sets a one-year limit on the time during which a prisoner may seek relief from a new Supreme Court ruling like that in Johnson. See 28’ U.S.C. § 2255(f)(3). Johnson was decided on June 26, 2015, so the year the statute allows inmates to seek relief based on that ruling has passed. But now it is coming to light that some prisoners who made timely applications to seek relief in district court were mistakenly turned away by ours. Mr. Leonard appears to be one of those inmates. This court has decided approximately a thousand applications for permission to file a § 2255 motion based on Johnson in the three months since the Supreme Court told us in Welch that we should not only honor the ruling in Johnson for sentences in the future, but must also apply the rule for prisoners already serving sentences imposed in the past. Our method of handling these cases has resulted in the denial of hundreds of § 2255 motions “before they were ever filed, without input from a lawyer. If even a single one of those orders was mistaken, then a prisoner has been doomed to serve an unlawful prison sentence.” McCall, 826 F.3d at 1310-12 (Martin, J., concurring).
I.
Although I am sure he would have preferred otherwise, Mr. Leonard’s experience in trying to get permission to file a successive § 2255 motion shows the difficult path prisoners have faced—even when they appear to have meritorious claims. Mr. Leonard first filed a pro se application this past February. At the time, we were in the minority of courts that said the Johnson ruling did not apply to prisoners who already filed one § 2255 motion. However, just before Mr. Leonard filed his application, the Supreme Court agreed to hear the Welch case, which Mr. Leonard suspected would allow him to benefit from Johnson. Because he expected Welch might help him, he asked us to temporarily stay his application until the Supreme Court decided Welch. 2 We denied his request, explaining that the “certiorari grant in Welch does not necessarily suggest that [the Supreme Court] will hold that Johnson is retroactive.” In re Leonard, No. 16-10893 (11th Cir. Mar. 30, 2016) (unpublished). That same day, the Supreme Court *773 heard argument in Welch. Nineteen days later, the Welch decision abrogated our court’s precedent, just as Mr. Leonard predicted.
Within a week of the Welch decision, Mr. Leonard filed another pro se application. We denied that one too. This time, the panel acknowledged that Mr. Leonard’s sentence was based on “convictions [that] no longer meet ACCA’s definition of “violent felony,’ which means they are not a valid basis for an ACCA sentence.” In re Leonard, No. 16-11925 (11th Cir. May 24, 2016) (Martin, J, dissenting) (unpublished). But the panel denied Mr. Leonard’s application anyway, saying that even if Johnson knocked out one of the prior convictions that qualified Mr. Leonard for his ACCA sentence, there was another to take its place. The panel did this, as all of us have done in so many of these cases, by looking back at a sealed document that was prepared for Mr. Leonard’s 2009 sentencing. That document said Mr. Leonard had an assault conviction from when he was 17 years old, which would have been 14 years before he stood for his ACCA sentencing. The panel ruled that this decades-old assault conviction barred Mr. Leonard from filing a § 2255 motion “[e]ven though no judge ever used this assault conviction to sentence Mr. Leonard.” Id. A few weeks later, another panel of this court clarified that we can’t use prior convictions to uphold an ACCA sentence unless “the sentencing court specifically identified [those convictions] as qualifying as ACCA predicates.” In re Rogers, 825 F.3d 1335, 1338 (11th Cir. 2016). The Rogers decision articulated why our order on Mr. Leonard’s second application was wrong. Mr. Leonard then filed another pro se application, which is the one we grant today.
II.
The mistake made in Mr. Leonard’s case was not necessary. As I’ve said, what Congress authorized courts of appeal to do in ruling on an inmate’s application to file a successive § 2255 motion is “certif[y]” if the applicant made “a prima facie showing” that his motion will “contain ... a new rule of constitutional law, made retroactive to cases on collateral review.” 28 U.S.C. §§ 2244 (b)(3)(C), 2255(h). I have no doubt Mr. Leonard’s motion, now that he can file it, will “contain” a rule of that kind and, his case shows how easy it is to make mistakes when we try to decide anything beyond the simple question posed by § 2255(h). These cases typically come to us as “nothing more than a form filled out by a prisoner.” McCall, 826 F.3d 1308 at 1310-12 (Martin, J., concurring). Because we have so little to go on, “our court has been calling up each prisoner’s record” to decide, as though we ourselves are resen-tencing that prisoner, if his earlier convictions still qualify him for the 15-year mandatory minimum sentence based on the parts of ACCA that Johnson left intact. Id. We’ve now done this in hundreds of cases.
A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way. There are many reasons for this. First, the statute expects us to decide these applications in 30 days. See 28 U.S.C. § 2244 (b)(3)(D). Then, there is the matter of what information we can see and understand during the short time we have to assess each prisoner’s application. When a district court judge is called on to sentence someone in the first instance, the judge, the person to be sentenced, and the government all get what is called a presentence investigation report (PSI). 3 This document is prepared *774 by the probation office and identifies anything that may impact the sentence to be imposed. At the district court sentence hearing, unlike the pure paper review we are doing here, defense lawyers can point out factual errors in the PSI and otherwise educate the court about why the recommendations in the PSI might not be appropriate. The government can advocate its view as well.
None of that process happens when prisoners like .Mr. Leonard apply to our court for permission to go to the district court to have their sentences reexamined. Prisoners filing applications in our court are confined to a short application form. 4 This form does not allow applicants to recreate for us what facts were ultimately found by the sentencing judge, or what legal decisions the judge made. Neither can the prisoner educate us about any legal decision the sentencing judge made which might no longer be correct in light of interpretations of the law announced by the Supreme Court in the meantime. This means we are ill-equipped, not fully informed, and rushed in deciding these cases. We therefore make mistakes.
There are many ways a PSI can mislead us. Again, using Mr. Leonard as an example, his PSI listed that he committed an assault at age 17, but it made no reference to the actual statute under which he was convicted. That means we have to guess about the basis for Mr. Leonard’s conviction. With no access to the state court records for the past conviction we might guess wrong. In the same way, a PSI might not give the particulars of the terms of a prisoner’s plea in state court. Without that information, we can’t know from the PSI whether a prisoner who long ago pleaded guilty to a state crime is actually now eligible for an ACCA sentence based on that crime. For example, the Florida Supreme Court recently ruled that Florida law doesn’t treat a plea of guilty “with adjudication withheld” as a conviction, which means a plea like that can’t be an ACCA predicate. See United States v. Clarke, 822 F.3d 1213, 1215 (11th Cir. 2016). Since the Florida Supreme Court clarified this point only this year, the federal judge who sentenced Mr. Clarke years ago and saw this “adjudication withheld” in the PSI could not have known whether to count that event as a prior criminal conviction for Mr. Clarke when the judge imposed sentence.
The PSI can mislead us even in cases where the prisoner did not object to its contents at the time he was sentenced. On the date he was sentenced, Mr. Leonard had three convictions that supported an ACCA sentence. Though Johnson has since taught us that some of those convictions should not have been counted, Mr. Leonard arrived at his sentence hearing understanding that under existing law he qualified for an ACCA sentence based on those three convictions. Mr. Leonard therefore had no motivation to ask the judge to fix any mistakes in his PSI, since he was due to get an ACCA sentence even if the mistakes were corrected. Mr. Leonard may even have had an incentive to not ask the judge to correct those mistakes. As the Supreme Court has explained, a defendant in Mr. Leonard’s shoes “may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations” that don’t affect his sentence. Descamps v. United States, 570 U.S. —, 133 S.Ct. 2276, 2289 , 186 L.Ed.2d 438 (2013). So he “may have let [an error] go by because it *775 was irrelevant to the proceedings. He likely was not thinking about the possibility that his silence could come back to haunt him,” when a court of appeals years later tried to construct a new basis for his incarceration from “superfluous factual allegations” in the old PSI. Id. 5
Beyond these mistakes about facts, there are other types of mistakes we can make in these cases. We now know that Mr. Leonard’s sentence was based on his earlier convictions that no longer meet ACCA’s “violent felony” definition. I recognize that for Mr. Leonard and other applicants like him, their criminal history may include other convictions that qualify as violent felonies as that term is defined under current law. Whether those crimes meet the ACCA definition is a difficult question that requires close analysis of state law. Even when our court has precedent analyzing a particular state crime, evolution of state court interpretations of a state criminal statute means that a crime might count “if it was committed one year but not if it was committed the next.” Saint Fleur, 824 F.3d 1337 at 1342-43 (Martin, J., concurring). 6
At a sentence hearing, a judge has help from lawyers, so she can know exactly the' criminal history of the person she is sentencing. Lawyers can debate whether “the elements of the statute of conviction, not [ ] the facts of each defendant’s conduct,” required what an ACCA definition requires. Taylor v. United States, 495 U.S. 575, 601 , 110 S.Ct. 2143, 2159 , 109 L.Ed.2d 607 (1990). That process can’t happen here when we decide these cases “without argument from a lawyer, within a tight 30-day deadline and in a deluge of hundreds of applications.” McCall, 826 F.3d 1308 at 1310-12 (Martin, J., concurring). So we are vulnerable to applying the wrong law. For example, we might overlook that legal rules applied at the time of the sentencing are now known to be wrong. If a decade ago, a man got a longer sentence based on an interpretation of a statute that the Supreme Court has since told us was wrong, then he is entitled to have the correct law applied if he is resentenced now. But our court has over and over again failed to apply the Supreme Court’s current interpretation of ACCA when ruling on the applications from prisoners seeking to file a successive § 2255 motion so they can benefit from Johnson. 7 I think this is wrong, and at the least, district courts *776 should hear these cases. That way, the question of whether judges can decline to apply certain binding precedent will be decided by .a lower court, and reviewed herp on appeal.
When district courts take the Erst close look at the cases of these prisoners who believe they are serving illegal sentences after Johnson, we have better odds of avoiding these problems. District courts can hear from lawyers. District courts can see and talk to the person serving the sentence. District courts can End facts. District courts can consider and develop the law. These inmates will best be served by an opportunity, allowed by statute, to have their sentences reviewed by district courts. But when we deny permission to file a successive § 2255 motion, AEDPA bars any further appeal or review of that decision. Our denial of permission is the beginning and end of the case.
III.
“Qur court’s massive effort to decide the merits of hundreds of habeas cases within 30 days each, all over a span of just a few weeks” was never necessary. McCall, 826 F.3d at 1311-12 (Martin, J., concurring). I count at least five ways in which this court stands alone in its response to Johnson. First, “I am aware of no order from another court of appeals that combs through an applicant’s presentence investigation report to decide the merits of his yet-unfiled motion without ever hearing from a lawyer. And our court has done this in hundreds of cases.” Id. at 1311 n.7. Second, United States Sentencing Guideline § 4B 1.2(a)(2) uses the same 13 words that Johnson invalidated, and “[a]ll eleven of the other courts of appeals have either held or assumed that Johnson makes the identical language in § 4B1.2(a)(2) unlawful.” Id. at *1 & n.1 (listing cases). Our court alone insists otherwise. See United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). And again, our court set out on this path with no oral argument or adversarial briefing. 8
Third, “[w]e were in the minority of courts that, from the beginning, said pris *777 oners could not benefit from Johnson if they had already filed an earlier § 2255 motion.” McCall, 826 F.3d at 1310-12 (Martin, J., concurring). For months, that ruling “denied the application of Johnson to potentially hundreds of people based on pro se pleadings and without oral argument or briefing.” In re Franks, 815 F.3d 1281, 1289 (11th Cir. 2016) (Martin, J., dissenting). The Supreme Court’s ruling in Welch (remarkably issued only nineteen days after the case was argued), removed the obstacle to Johnson relief for people who had already filed a § 2255 motion. But then the inmates helped by Welch faced another obstacle. Only two months remained until the one-year limitations period for making Johnson claims ran out. In the Eleventh Circuit, over a hundred of those prisoners had tried to file motions seeking relief based on Johnson even before Welch was decided.
Most of those prisoners filed their applications in the three and a half months between the Welch certiorari grant and the day the case was decided. See In re Robinson, 822 F.3d 1196, 1198-1201 (11th Cir. Apr. 19, 2016) (Martin, J., concurring) (listing cases and dates). The Welch certio-rari grant resulted in the fourth way in which our court took a divergent approach: “unlike all other circuits, the Eleventh Circuit refused to stay applications for successive § 2255 motions pending Welch.” 9 Just before Mr. Leonard filed his first application, the full Eleventh Circuit refused to vacate the case that Welch eventually abrogated. See In re Rivero, No. 15-13089 (Mar. 16, 2016). Then, a few days later, the full court also vacated a panel opinion that allowed the court to stay Johnson applications “until the Supreme Court decides Welch.” In re Johnson, 810 F.3d 1247, 1253 (11th Cir. 2016). If either of those votes had gone the other way, hundreds of prisoners would have had more time to file their cases, and the judges of this court would have had more time to evaluate them. Instead, inmates had to re-file their applications, and this court had to decide the same cases again, this time in a crush of hundreds of new Johnson cases. Other courts took steps to avoid this problem.
Fifth, as far as I know, ours is the only court to force a decision on every one of these cases within 30 days of filing. See id. at 1249 n.l (listing other courts’ approaches). We do this based on § 2244(b)(3)(D), which says: “The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” Of course we never take lightly the word “shall” in a statute. But others who have considered this statute have concluded that “failure to comply with the thirty-day provision does not deprive this Court of the power to grant or deny a motion under § 2244(b)(3)(A)” because “the provision is hortatory or advisory rather than mandatory.” In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997). The Ninth Circuit recently observed about its experience deciding Johnson applications: “Given the large volume of second or successive applications our court must process each month, it frequently takes us longer—sometimes much longer—than 30 days to rule.” Orona v. United States, 826 F.3d 1196, 1198-99 (9th Cir. 2016). I can’t help but think that if this court had taken the approach taken by others, our work on these cases would be both less frantic and more accurate.
*778 On the topic of this court’s singular approach, I add one more observation. The Supreme Court recently granted certiorari in the case of a Texas prisoner named Duane Buck. See Buck v. Stephens, — U.S. —, 136 S.Ct. 2409 , 195 L.Ed.2d 779 , (2016). The Court took the case even though the lower court ruled that Mr. Buck’s appeal was so meritless that he couldn’t even file it. Mr, Buck’s petition for certiorari asked: “did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard?” Our treatment of applications for successive § 2255 motions may be even, more troubling than the issue raised in Buck. Unlike the denial of a COA, the statute governing applications like Mr. Leonard’s provides that “denial of an authorization ... to file a second or successive application shall not be appealable and shall not be the subject' of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244 (b)(3)(E). This means no motion for reconsideration, no motion for en banc review, no appeal, and no petition for cert. The decisions we make in these cases are therefore, as a practical matter, not reviewable.
A month after AEDPA (and with it, § 2244(b)(3)(E)) became law in April 1996, the Supreme Court held that these “new restrictions on successive petitions ... do not amount to a ‘suspension’ of the writ.” Felker v. Turpin, 518 U.S. 651, 664 , 116 S.Ct. 2333, 2340 , 135 L.Ed.2d 827 (1996). Three Justices filed a concurrence warning that “the question whether the statute exceeded Congress’s Exceptions Clause power” might need to be revisited “if the courts of appeals adopted divergent interpretations of the gatekeeper standard.” Id. at 667 , 116 S.Ct. at 2342 (Souter, J., concurring). I hope someone better equipped than me will take this opportunity to look at whether the divergent views taken by this court require reexamination of this question asked by these Justices so soon after AEDPA was enacted. 10
IV.
In deciding whether an inmate gets to pursue relief based on the Supreme Court’s Johnson ruling, I believe the question should simply be whether his sentence was based on crimes that met ACCA’s “violent felony” definition before Johnson but no longer do. 11 The approach our court has taken instead is, I believe, fraught *779 with hazard and subject to error. As long as we continue this approach, we are bound to make more mistakes. Our mistakes don’t go away when we deny an application. Prisoners whose applications we’ve mistakenly denied will file again. And well they should. The federal courts are the branch of government charged with administering justice in individual cases. If we’ve made mistakes it is our job to fix them. I hope Mr. Leonard’s case is an exception, but I fear it is not. And “if there are others who are wrongfully detained without a remedy, we should devote the time and incur the expense to hear their cases. What is the role of the courts, if not this?” Gilbert v. United States, 640 F.3d 1293, 1336 (11th Cir. 2011) (en banc) (Martin, J., dissenting). In the cases we’ve gotten wrong, I hope lawyers continue to let us know.
. These details are set out in Simmons v. United States, No. 1:16-cv-22369 (S.D. Fla. July 7, 2016) (order appointing counsel and setting expedited briefing).
. A month before Mr. Leonard made this request, a panel of this court held that we could stay Johnson applications “until the Supreme Court decides Welch.” In re Johnson, 810 F.3d 1247, 1253 (11th Cir. 2016). While Mr. Leonard’s application was pending, the full Eleventh Circuit vacated the panel opinion that allowed the stay. See In re Johnson, 815 F.3d 733 (11th Cir. 2016). The same week, the Ml court also voted not to vacate the opinion that Welch later abrogated. See In re Rivero, No. 15-13089 (Mar. 16, 2016).
. The sealed document from Mr. Leonard's sentencing that showed the assault conviction from when he was 17 was his PSI.
. This form, which can be seen at http://goo. g1/auE5HQ, gives prisoners exactly two lines to "[s]tate concisely every ground on which you now claim that you are being held unlawfully.” The form also warns: "All questions must be answered concisely in the proper space.” And it says: "Do not submit separate petitions, motions, briefs, arguments, etc.”
. Though our precedent lets courts apply sentencing statutes based on unobjected-to facts in a PSI, Descamps may have abrogated that rule. See United States v. Howard, 742 F.3d 1334 , 1349 & n.10 (11th Cir. 2014).
. For example, Mr. Leonard’s PSI shows that he had a Florida assault conviction. Our court has precedent that says that Florida assault "will always” meet one of the ACCA definitions that survived Johnson. Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1338 (11th Cir. 2013). However, this court’s more recent precedent tells a more complex story. See In re Jackson, 826 F.3d 1343, 1346-47 (11th Cir. 2016). In Mr. Jackson’s case, he was convicted of assault in Florida before that state had passed a statute defining assault, and it turns out that his conviction for common law assault could have been based on acts which don’t meet any remaining ACCA definition of a "violent felony.” For that reason, we granted Mr. Jackson’s application to a file a successive § 2255 motion. Mr. Leonard’s case may be different from Mr. Jackson’s or from Mr. Turner's for that matter. I do not know what category Mr. Leonard's assault conviction will ultimately fall into.
.This idea can be illustrated by this court's treatment of the Supreme Court’s 2013 ruling in Descamps, which explained the proper method for evaluating a person’s prior convictions. This is, of course, the question that comes up for people whose sentences violated Johnson. But in rushing to rule on so many of these cases in such a short period, this court has been erratic about whether and when Descamps applies in this context. The court’s *776 first published opinion on this issue held that Descamps did not apply to a Johnson claim because the sentencing judge had cited the Taylor case when imposing sentence. See In re Thomas, 823 F.3d 1345, 1348-49 (11th Cir. 2016). Weeks later another panel held that Descamps does apply when we can’t tell which ACCA definition the sentencing judge had in mind (the "enumerated crimes clause” and “residual clause” are just two halves of one statutory subsection, so judges weren’t precise about this). See In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016). Later that afternoon a third panel ruled that “Descamps cannot serve as a basis” for any Johnson claim. See In re Hires, 825 F.3d 1297, 1302-1304 (11th Cir. 2016), Two days later, a fourth panel tried to reconcile the "tension” in these cases. Rogers, 1 825 F.3d 1335 , 1338-39 n.6. That same day another panel held that we can ignore Descamps even for prisoners sentenced after Descamps. See In re Cook, No. 16-12745 (11th Cir. June 17, 2016) (unpublished). Thomas, Adams, Hires, and Rogers are all published opinions, which means they set binding precedent. All of this precedent was established in a very short time period without any of the deliberation or adversarial presentation that goes into a normal appeal.
. The Supreme Court will hear a case next term in which it can evaluate this court’s ruling in Matchett. See Beckles v. United States, — U.S. —, 136 S.Ct. 2510 , — L.Ed.2d — (2016). In that regard, it is noteworthy that our court has expanded the ruling in Matchett. While Matchett ruled in a case for which the inmate was serving a sentence imposed under the discretionary guideline system, our court has applied Matchett to hold that prisoners can’t even make "a prima facie showing” that Johnson applies to the pre-Booker mandatory guidelines. See In re Griffin, 823 F.3d 1350 (11th Cir. 2016). This decision was also made without any briefing or adversarial testing. I say this is noteworthy because Travis Becldes was sentenced after Booker, so the Supreme Court’s ruling in his *777 case might not address the mandatory guideline issue our court decided in Griffin.
. Brief of the Federal Public and Community Defenders and the National Association of Federal Defenders as Amici Curiae in Support of Petitioner, at 4 n.3, Jones v. United States, No. 15-8629 (U.S. April 21, 2016). I have not verified this claim, but I see no reason to doubt it.
. This problem isn’t limited to Johnson claims. Our court recently denied a Johnson application based on the “concurrent sentence doctrine,” which treats an illegal sentence as "harmless” if a prisoner is serving another sentence that is just as long as the illegal one. In re Williams, 826 F.3d 1351, 1356 (11th Cir. 2016). The Supreme Court has long warned that this doctrine is nothing more than a "rule of judicial convenience.” Benton v. Maryland, 395 U.S. 784, 791 , 89 S.Ct. 2056, 2061 , 23 L.Ed.2d 707 (1969). And our court had never before "applied harmless error or the concurrent sentence doctrine in the context of an application to file a second or successive § 2255 motion.” Williams, 826 F.3d at 1356 . Without any briefing or advocacy on the question, Williams held that this doctrine barred a prisoner from even filing his § 2255 motion. Days later, a split panel used Williams to deny a pro se application for permission to file a § 2255 motion based on Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455 , 183 L.Ed.2d 407 (2012). See In re Hernandez-Miranda, No, 16-12893 (11th Cir. June 28, 2016) (unpublished). Mr. Heman-dez-Miranda was "a juvenile when he joined a conspiracy for which he was later sentenced to life without parole.” IcL at 13 (Martin, J., dissenting). Because of the restrictions on review of our rulings in this context, the panel’s order was the beginning and end of Mr. Hernandez-Miranda’s Eighth Amendment claim,
. The answer to that question should be "no” only if a sentence clearly was based on "serious drug offenses” or crimes that we have held are "violent felonies” after John *779 son, see e.g., United States v. Brown, 805 F.3d 1325 (11th Cir. 2015) (per curiam); United States v. Hill, 799 F.3d 1318 (11 th Cir. 2015) (per curiam). Also, we can't assume any fact that the sentencing judge wasn’t required to find. See Descamps, 133 S.Ct. at 2289 . That means we can’t assume everything in a PSI is true, regardless of whether the defendant objected.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8680286. Public record. Not legal advice.