Opposition Brief — Luis Fernandez, Petitioner v. United States

No. 24-7240

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LUIS FERNANDEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

Acting Assistant Attorney General

BRENDAN B. GANTS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner

was

entitled

to

postconviction

relief

based on United States v. Davis, 588 U.S. 445 (2019), where

petitioner has not shown that it was more likely than not that he

was convicted under the residual clause of 18 U.S.C. 924(c), which

was invalidated in Davis, as opposed to Section 924(c)’s stillvalid elements clause.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

United States v. Fernandez, No. 07-cr-20714 (June 30, 2009)

Fernandez v. United States, No. 16-cv-25087 (Mar. 14, 2018)

United States Court of Appeals (11th Cir.):

United States v. Perez, No. 09–13409 (Oct. 26, 2011)

United States v. Fernandez, No. 09-13455 (Oct. 26, 2011)

Fernandez v. United States, No. 18-11044 (Jan. 17, 2019)

Fernandez, In re, No. 20-12404 (July 22, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-7240

LUIS FERNANDEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1) is reported

at 114 F.4th 1170.

The order of the district court (Pet. App. A3)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August

13, 2024.

A petition for rehearing was denied on January 16, 2025

(Pet. App. A2).

On April 7, 2025, Justice Thomas extended the

time within which to file a petition for a writ of certiorari to

and including May 16, 2025, and the petition was filed on May 15,

2

2025.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Florida, petitioner was convicted on

one count of conspiring to commit Hobbs Act robbery, in violation

of 18 U.S.C. 1951(a); one count of attempting to commit Hobbs Act

robbery, in violation of 18 U.S.C. 1951(a) and 2; and one count of

possessing a firearm in furtherance of a crime of violence, in

violation of 18 U.S.C. 924(c)(1)(A) and 2. Judgment 1; Superseding

Indictment 2.

He was sentenced to 360 months of imprisonment, to

be followed by three years of supervised release.

Judgment 2-3.

The court of appeals affirmed, 661 F.3d 568, and petitioner did

not seek certiorari.

In 2016, petitioner unsuccessfully moved

under 28 U.S.C. 2255 to vacate his Section 924(c) conviction. 2018

WL 10447093.

In 2020, petitioner obtained leave to file a second

Section 2255 motion to vacate his Section 924(c) conviction.

12404 C.A. Doc. 2-2 (July 22, 2020).

20-

The district court denied

the motion but granted a certificate of appealability.

20-cv-

23034 D. Ct. Doc. 19 (June 28, 2021); 20-cv-23034 D. Ct. Doc. 27

(Aug. 2, 2021).

1.

In

The court of appeals affirmed.

February

2007,

petitioner

carjacked

college student at gunpoint on her way to class.

912, 914–915; 09-12203 U.S. C.A. Br. 7.

Pet. App. A1.

a

pregnant

374 Fed. Appx.

Petitioner and three

accomplices then drove to the woman’s house where they held her,

3

her husband, and their 23-month-old son hostage and threatened to

kill the entire family.

Petitioner

and

his

374 Fed. Appx. at 914.

accomplices

beat

the

husband

with

a

flashlight, submerged his head underwater in a jacuzzi, shocked

him

with

electrical

cords,

and

stabbed

him

in

the

buttocks,

demanding to know where the family kept its money and jewelry.

374 Fed. Appx. at 915; 09-12203 U.S. C.A. Br. 11-12.

They twice

brought the woman into the room to show her what they were doing

to her husband and warned her that she would be next.

Appx. at 915.

374 Fed.

And they continued the torture until one of them

stated that the husband was dead.

Ibid.

Petitioner and his

accomplices then left, stealing the family’s car, photographic

equipment, and a 9mm Beretta handgun. Ibid. The husband ultimately

survived.

Ibid.

Petitioner was not apprehended at the time.

In August 2007, petitioner and several others conspired and

attempted to rob what they believed to be a cocaine stash house.

Pet. App. A1, at 2; Presentence Investigation Report (PSR) ¶¶ 825.

The plan called for petitioner and several co-conspirators to

enter the stash house in advance of an expected delivery of 20-25

kilograms of cocaine, tie up the people inside, and steal the

cocaine when it arrived.

conversation,

petitioner

PSR ¶¶ 11, 16, 20, 24.

discussed

bringing

During a recorded

several

firearms,

including an “AK-type weapon,” and said he would cut anyone who

resisted in half with a saw.

PSR ¶ 18.

Petitioner helped provide

guns and tie straps for the planned robbery.

PSR ¶¶ 18, 20, 23.

4

Unbeknownst to petitioner and his co-conspirators, the “stash

house” was part of a law-enforcement operation.

2.

Pet. App. A1, at

Officers arrested the conspirators on their way to the planned

robbery, recovering five loaded firearms -- including an AK-47 and

the 9mm Beretta stolen during the hostage-taking -- and other

weapons.

2.

PSR ¶¶ 20-23.

Petitioner faced separate charges for the hostage-taking

and stash-house robberies.

In the hostage-taking case, a jury

found petitioner guilty of two counts of carjacking in violation

of

18

U.S.C.

2119;

hostage-taking

in

violation

of

18

U.S.C.

1203(a); possessing a firearm in furtherance of a crime of violence

in violation of 18 U.S.C. 924(c)(1)(A); and possessing a stolen

firearm (the 9mm Beretta) in violation of 18 U.S.C. 922(j).

374

Fed. Appx. at 913.

The district court sentenced petitioner to life imprisonment

on the hostage-taking count, concurrent terms of imprisonment on

the carjacking and Section 922(j) counts, and a consecutive 84month sentence on the Section 924(c) count.

Doc. 109, at 1-2 (Apr. 14, 2009).

08-cr-20704 D. Ct.

The court of appeals affirmed,

374 Fed. Appx. at 921, and petitioner did not seek certiorari.

Petitioner later filed two Section 2255 motions challenging his

Section 924(c) conviction, which were both denied.

08-cr-20704 D.

Ct. Doc. 151 (June 27, 2017); 08-cr-20704 D. Ct. Doc. 154 (Apr. 2,

2021).

Petitioner does not challenge those convictions -- or his

life sentence on the hostage-taking count -- here.

5

Separately, in the stash-house case, a federal grand jury

charged petitioner with one count of conspiring to possess five

kilograms

or

more

of

cocaine

with

intent

to

distribute,

in

violation of 21 U.S.C. 841(a)(1), (b)(1)(A)(ii), and 846 (Count

3); one count of attempting to possess five kilograms or more of

cocaine with intent to distribute, in violation of 21 U.S.C.

841(a)(1), (b)(1)(A)(ii), and 846, and 18 U.S.C. 2 (Count 4); one

count of conspiring to commit Hobbs Act robbery, in violation of

18 U.S.C. 1951(a) (Count 5); one count of attempting to commit

Hobbs Act robbery, in violation of 18 U.S.C. 1951(a) and 2 (Count

6); and one count of possessing a firearm in furtherance of a crime

of violence and a drug-trafficking crime, in violation of 18 U.S.C.

924(c)(1)(A) and 2 (Count 7).

Superseding Indictment 3-7.

The indictment premised the Section 924(c) charge on the other

charged counts.

Superseding Indictment 7.

At trial, the district

court instructed the jury that, to find petitioner guilty on the

Section 924(c) charge, it had to find that he “committed a drug

trafficking offense or crime of violence charged in Counts [3, 4,

5, or 6].”

Pet. App. A1, at 2 (brackets in original).

The jury

found petitioner guilty on the counts of conspiring to commit Hobbs

Act robbery (Count 5), attempted Hobbs Act robbery (Count 6), and

the Section 924(c) charge (Count 6).

Jury Verdict 1-2.

It found

petitioner not guilty of the drug charges (Counts 3 and 4).

at 1.

Id.

6

The district court sentenced petitioner to 360 months of

imprisonment, to be followed by three years of supervised release.

Judgment 2-3.

The court specified that petitioner’s 60-month

sentence on the Hobbs Act counts (Counts 5 and 6) would run

concurrently with his life sentence in the hostage-taking case.

Judgment 2.

sentence for

The court also specified that petitioner’s 300-month

the

Section

924(c)

offense

(Count

7)

would

run

consecutively to the life sentence in the hostage-taking case.

Ibid.

The court of appeals affirmed, 661 F.3d 568, and petitioner

did not seek certiorari.

3.

In 2015, this Court held in Johnson v. United States,

576 U.S. 591, that the residual clause of the definition of

“violent felony” in the Armed Career Criminal Act of 1984 (ACCA),

Pub. L. No. 98-473, 98 Stat. 2185, is unconstitutionally vague.

576 U.S. at 594-597.

This Court subsequently held that Johnson

announced a new substantive rule that applies retroactively to

cases on collateral review.

Welch v. United States, 578 U.S. 120,

122, 130, 135 (2016).

In 2016, petitioner filed a motion under 28 U.S.C. 2255 to

vacate his Section 924(c) conviction in light of Johnson.

16-cv-

25087 D. Ct. Doc. 1 (Dec. 7, 2016) (motion); 16-cv-25087 D. Ct.

Doc. 2 (Dec. 7, 2016) (memorandum of law).

One of Section 924(c)’s

two alternative definitions of “crime of violence,” 18 U.S.C.

924(c)(3)(B), uses language similar to the ACCA’s residual clause,

18

U.S.C.

924(e)(2)(B)(ii).

The

district

court

denied

7

petitioner’s

Section

2255

motion

and

declined

to

issue

a

certificate of appealability, reasoning that petitioner’s claims

were time-barred and procedurally defaulted.

2018 WL 10447093, at

*3-*4; see also 2018 WL 10447059(report and recommendation); 2018

WL 10447054(denying motion to alter or amend judgment).

The court

of appeals denied a certificate of appealability, 18-11044 C.A.

Doc. 15-2 (Jan. 17, 2019), and petitioner did not seek certiorari.

4.

U.S.

In 2019, this Court held in United States v. Davis, 588

445,

definition

that

is

Section

itself

924(c)(3)(B)’s

“crime

of

unconstitutionally

vague.

Id.

violence”

at

470.

Petitioner applied to the court of appeals under 28 U.S.C. 2255(h)

for authorization to file a second Section 2255 motion based on

Davis.

20-12404 C.A. Doc. 1 (June 26, 2020).

Section 2255(h)

allows a second or successive Section 2255 motion if a court of

appeals panel “certifie[s] as provided in section 2244” that the

motion

“contain[s]”

newly

discovered

persuasive

evidence

of

innocence or 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)(1) and (2).

of appeals granted authorization.

The

district

court,

The court

20-12404 C.A. Doc. 2-2.

however,

denied

petitioner’s

motion.

Pet. App. A3. The court reasoned, as a threshold matter, that

petitioner’s claim was procedurally defaulted and that petitioner

had no good cause to excuse his default.

Id. at 5.

And the court

also determined, in the alternative, that petitioner had not

8

established prejudice, because attempted Hobbs Act robbery was a

crime

of

violence

under

circuit

924(c)(3)(A)’s elements clause.

precedent

applying

Section

Id. at 5-6; see Granda v. United

States, 990 F.3d 1272, 1285 (11th Cir. 2021), cert. denied, 142 S.

Ct. 1233 (2022).

After this Court granted certiorari in United States v.

Taylor, 596 U.S. 845 (2022), to decide whether attempted Hobbs Act

robbery is a crime of violence, the district court granted a

certificate of appealability.

20-cv-23034 D. Ct. Doc. 27.

This

Court’s subsequent decision in Taylor then held that attempted

Hobbs Act robbery does not qualify as a crime of violence under

Section 924(c)(3)(A)’s elements clause.

5.

596 U.S. at 860.

Reviewing petitioner’s case post-Taylor, the court of

appeals affirmed.

Pet. App. A1.

The court of appeals observed that, under Section 2255(h)(2),

a “second or successive motion” for postconviction relief “must be

certified

* * *

to contain

. . .

a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.”

Pet. App. A1, at 5

(quoting 28 U.S.C. 2255(h)(2)). And the court explained that “only

claims that contain a new rule of constitutional law satisfy

§ 2255’s gatekeeping requirements.”

Ibid.

The court of appeals further observed that, while Davis’s

invalidation of Section 924(c)(3)(B)’s residual clause rested on

constitutional grounds, Taylor and circuit precedent holding that

9

Hobbs

Act

conspiracy

does

not

satisfy

elements clause were statutory decisions.

Section

924(c)(3)(A)’s

Pet. App. A1, at 2.

It

explained that petitioner therefore could not prevail on his second

Section 2255 motion unless he could show as a matter of historical

fact that his Section 924(c) conviction rested on the residual

clause (and was thus unconstitutional under Davis) and not the

elements clause (in which case his claims would be statutory).

Id. at 5-6.

The court of appeals found that petitioner could not make

that showing.

Pet. App. A1, at 6.

The court observed that, under

circuit precedent, petitioner could carry his burden either based

on record evidence or by showing “‘at the time of sentencing that

only the residual clause would authorize a finding that the prior

conviction was a’ crime of violence.”

Id. at 7 (quoting Beeman v.

United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert.

denied, 586 U.S. 1153 (2019)).

The court found nothing in the

record that indicated that petitioner’s Section 924(c) conviction

relied on the residual clause.

Id. at 6.

And after examining the

case law at the time of petitioner’s conviction, the court of

appeals found that a district court could have treated Hobbs Act

attempt

or

conspiracy

as

crimes

924(c)(3)(A)’s elements clause.

of

violence

under

Section

Id. at 7-8.

Each judge filed a separate concurrence.

Judge Rosenbaum

urged the en banc court of appeals to overrule its precedent

requiring prisoners bringing second or successive Section 2255

10

motions based on Johnson or Davis to prove that they were sentenced

under the residual clauses.

Pet. App. A1, at 8-11.

Judge Newsom

explained that he had reconsidered earlier misgivings about taking

the same approach to postconviction Johnson and Davis claims, but

noted potential issues with that approach that might arise in a

future case.

Id. at 11-13.

Judge Luck, who concurred in the

judgment only, agreed that petitioner had not met his burden, and

stated that two small portions of the panel opinion (an assumption

in petitioner’s favor on one point and agreement with petitioner

on another) were unnecessary dicta.

Id. at 13.

ARGUMENT

Petitioner contends (Pet. 8-30) that the court of appeals

erred in requiring him, as a prerequisite for relief on a second

or successive Section 2255 motion premised on United States v.

Davis, 588 U.S. 445 (2019), to show that his Section 924(c)

conviction was more likely than not based on the residual clause

that Davis invalidated.

The court of appeals’ decision is correct

and does not warrant this Court’s review.

Notwithstanding some

circuit disagreement as to the standard for second or successive

Section 2255 motions premised on Johnson v. United States, 576

U.S. 591 (2015), this Court has repeatedly denied certiorari of

issues similar to the one presented here in the Johnson context. 1

1

(2021)

(2021)

(2020)

(2020)

See, e.g., Sanders v. United States, 142 S. Ct. 460

(No. 20-8053); Brown v. United States, 141 S. Ct. 1271

(No. 20-5762); Franklin v. United States, 141 S. Ct. 960

(No. 20-5030); McKenzie v. United States, 141 S. Ct. 954

(No. 19-8597); Tinker v. United States, 140 S. Ct. 1137

11

In any event, petitioner’s claim is premised on Davis, not Johnson.

And

review

would

be

unlikely

to

have

meaningful

practical

significance for petitioner, given that he is serving a life

sentence for another offense not at issue here.

1.

A

federal

prisoner

generally

may

not

obtain

postconviction relief unless he establishes that his sentence was

“imposed in violation of the Constitution or laws of the United

(2020) (No. 19-6618); Anzures v. United States, 140 S. Ct. 1132

(2020) (No. 19-6037); Starks v. United States, 140 S. Ct. 898

(2020) (No. 19-5129); Clay v. United States, 140 S. Ct. 866 (2020)

(No. 19-6884); Wilson v. United States, 140 S. Ct. 817 (2020) (No.

18-9807); McCarthan v. United States, 140 S. Ct. 649 (2019) (No.

19-5391); Levert v. United States, 140 S. Ct. 383 (2019) (No. 181276); Morman v. United States, 140 S. Ct. 376 (2019) (No. 189277); Ziglar v. United States, 140 S. Ct. 375 (2019) (No. 189343); Zoch v. United States, 140 S. Ct. 147 (2019) (No. 18-8309);

Walker v. United States, 587 U.S. 1065 (2019) (No. 18-8125); Ezell

v. United States, 587 U.S. 966 (2019) (No. 18-7426); Garcia v.

United States, 587 U.S. 941 (2019) (No. 18-7379); Harris v. United

States, 587 U.S. 920 (2019) (No. 18-6936); Wiese v. United States,

586 U.S. 1227 (2019) (No. 18-7252); Beeman v. United States, 586

U.S. 1153 (2019) (No. 18-6385); Jackson v. United States, 586 U.S.

1152 (2019) (No. 18-6096); Wyatt v. United States, 586 U.S. 1078

(2019) (No. 18-6013); Washington v. United States, 586 U.S. 1077

(2019) (No. 18-5594); Prutting v. United States, 586 U.S. 1077

(2019) (No. 18-5398); Curry v. United States, 586 U.S. 1068 (2019)

(No. 18-229); Sanford v. United States, 586 U.S. 1052 (2018) (No.

18-5876); Jordan v. United States, 586 U.S. 1038 (2018) (No. 185692); George v. United States, 586 U.S. 1038 (2018) (No. 185475); Sailor v. United States, 586 U.S. 968 (2018) (No. 18-5268);

McGee v. United States, 586 U.S. 968 (2018) (No. 18-5263); Murphy

v. United States, 586 U.S. 968 (2018) (No. 18-5230); Perez v.

United States, 586 U.S. 921 (2018) (No. 18-5217); Safford v. United

States, 586 U.S. 910 (2018) (No. 17-9170); Couchman v. United

States, 586 U.S. 909 (2018) (No. 17-8480); Oxner v. United States,

586 U.S. 839 (2018) (No. 17-9014); King v. United States, 586 U.S.

827 (2018) (No. 17-8280); Casey v. United States, 585 U.S. 1017

(2018) (No. 17-1251); Westover v. United States, 584 U.S. 964

(2018) (No. 17-7607); Snyder v. United States, 584 U.S. 964 (2018)

(No. 17-7157).

12

States.” 28 U.S.C. 2255(a). In addition, under 28 U.S.C. 2255(h),

a second or successive motion for postconviction relief may not be

filed unless a court of appeals certifies that it contains (as

relevant here) “a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable.”

incorporates

by

28 U.S.C. 2255(h)(2).

reference

the

certification

Section 2255(h)

procedures

in

28

U.S.C. 2244, under which a panel need only determine that the

prisoner has made a “prima facie” showing to that effect.

U.S.C. 2244(b)(3)(C).

28

Section 2244 further provides, however,

that even when such a prima facie showing initially is made, a

legal claim in a second or successive habeas application “shall

[be] dismissed” if it does not in fact “satisf[y] the requirements

of this section,” i.e., the requirements for certification.

28

U.S.C. 2244(b)(4).

Those

stringent

standards

reflect

the

principle

that

collateral review “is an extraordinary remedy” that “‘will not be

allowed to do service for an appeal.’”

Bousley v. United States,

523 U.S. 614, 621 (1998) (citation omitted).

After the completion

of direct review in a criminal case, “a presumption of finality

and legality attaches to the conviction and sentence,” Brecht v.

Abrahamson, 507 U.S. 619, 633 (1993), and courts are “entitled to

presume” that the defendant's sentence is lawful, United States v.

Frady, 456 U.S. 152, 164 (1982).

* * *

That “presumption of regularity

makes it appropriate to assign a proof burden to the

13

defendant” on collateral review.

Parke v. Raley, 506 U.S. 20, 31

(1992); see Hawk v. Olson, 326 U.S. 271, 279 (1945) (explaining

that a prisoner necessarily “carries the burden in a collateral

attack on a judgment”).

The limitations on postconviction relief, and the prisoner’s

burden of proof, require a prisoner seeking postconviction relief

from a Section 924(c) conviction based on Davis to show that his

conviction actually resulted from a Davis error. Davis invalidated

Section 924(c)(3)(B)’s residual clause, but it did not call into

question Section 924(c)(3)(A)’s elements clause.

588 U.S. at 470.

Accordingly, the court of appeals correctly determined that a

prisoner who files a second or successive Section 2255 motion based

on Davis is required to establish, by a preponderance of the

evidence,

that

he

was

convicted

under

the

unconstitutional

residual clause, not the still-valid elements clause.

A1, at 5-6.

Pet. App.

A Section 2255 movant who cannot show that his

conviction was more likely than not based on constitutional error

cannot nonetheless bypass Congress’s stringent limits on second or

successive Section 2255 motions to litigate statutory challenges

to his conviction and sentence that might have brought in his

original appeal.

Because petitioner failed to make the required

showing -- indeed, he appears to acknowledge (Pet. 24) that he

cannot make it -- relief was properly denied.

2.

Petitioner’s contrary arguments lack merit and would

upend the burden of proof on collateral review.

14

Petitioner argues (Pet. 25-28) that once a movant makes a

prima facie showing of a constitutional error sufficient to satisfy

the “gatekeeping” function of Section 2255(h)(2), he is entitled

to plenary review for legal error under Section 2255(a), including

on

questions

of

statutory

interpretation.

That

argument

disregards Section 2255(h)(2)’s incorporation of Section 2244’s

provisions

concerning

appellate

certification,

including

subsection (b)(4)’s directive that the district court dismiss any

claim “unless the applicant shows that the claim satisfies the

requirements of this section.”

28 U.S.C. 2244(b)(4).

That directive requires that a second or successive Section

2255 motion be dismissed unless the prisoner shows that his claim

satisfies the certification criteria.

See U.S. Br. at 45-48, Bowe

v. United States, No. 24-5438 (June 11, 2025) (Bowe U.S. Br.). 2

Otherwise, a prisoner could seek to leverage a prima facie showing

of constitutional error -- no matter how minor or meritless it

turns out to be -- to bring a statutory attack on his conviction

or sentence, even one wholly unrelated to his constitutional claim.

This Court has granted review in Bowe to consider whether

it has certiorari jurisdiction and, if it has such jurisdiction,

whether 28 U.S.C. 2244(b)(1) applies to a claim presented in a

second or successive motion to vacate under 28 U.S.C. 2255.

Although the government’s explanation of why Section 2244(b)(1)

does not apply includes a discussion of why Section 2244(b)(4)

does apply, see Bowe U.S. Br. at 45-48, the question directly

presented in Bowe is not implicated in this case. And petitioner

has not requested that the Court hold this petition pending the

disposition of Bowe.

2

15

That result cannot be squared with Congress’s choice of

“finality over error correction” in carefully limiting second or

successive collateral attacks.

Jones v. Hendrix, 599 U.S. 465,

480 (2023).

Even if the constitutional and statutory claims are

related,

Section

a

2255

movant

cannot

use

the

prima

facie

determination of a constitutional claim to obtain postconviction

relief without a carefully examined showing that it is more likely

than not that the judgment in his criminal case was in fact the

result of a constitutional error.

For similar reasons, petitioner’s objections that prisoners

have received “illegal convictions” or “sentences” and that he

will

“‘spend

twenty-five

years

in

prison

for

Congress did not make a crime’” are misplaced.

26, 30 (citations omitted).

something

that

Pet. i, 2, 20, 25-

As a threshold matter, petitioner

himself will never actually serve such time because his Section

924(c) sentence is set to run consecutively to his life sentence

for hostage-taking.

See p. 6, supra.

Regardless, in every case where a conviction is predicated on

a statutory error not identified within a year of the conviction

becoming final, Congress has prioritized finality over the risk of

error.

See 28 U.S.C. 2255(f)(1); cf. Jones, 599 U.S. at 480

(emphasizing

“§ 2255(h)’s exclusion of statutory claims”).

If,

for example, Congress had never enacted Section 924(c)(3)(B)’s

residual clause, petitioner unquestionably could not collaterally

attack

his

Section

924(c)

conviction,

even

though

Hobbs

Act

16

conspiracy and attempt convictions were later held to be invalid

predicates under the elements clause.

Petitioner asserts (Pet. 20-21) that second or successive

Johnson and Davis claims are effectively unavailable in circuits

that require prisoners to demonstrate the existence of the claimed

constitutional error, and he urges (Pet. 29) that such a rule is

“hopelessly impractical.”

Petitioner is incorrect.

To meet his

burden, a movant may point to the record or to case law from the

time of his conviction showing that it is more likely than not

that the conviction or sentence relied on the invalid residual

clause, rather than the elements clause.

8.

See Pet. App. A1, at 6-

The circuits following the approach in the decision below have

repeatedly granted relief on Johnson claims in second or successive

motions, including in some of the very cases cited by petitioner. 3

And where the government determines that a prisoner has a valid

Davis claim, the government’s usual practice is to waive any

applicable procedural defenses on collateral review and agree that

E.g., Weeks v. United States, 930 F.3d 1263, 1279 (11th

Cir. 2019) (finding that “relevant legal precedent” made it

“obvious” that sentence rested on residual clause); United States

v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018) (cited at Pet.

18) (finding that “background legal environment” showed that court

must have relied on residual clause); United States v. Taylor, 873

F.3d 476, 482 (5th Cir. 2017) (cited at Pet. 13) (declining to

select standard because prisoner could meet his burden to show

that court relied on residual clause under any rule); see also

Walker v. United States, 900 F.3d 1012, 1015-1016 (8th Cir. 2018)

(cited at Pet. 18) (vacating denial of successive 2255 motion and

remanding for a determination whether movant had shown Johnson

error), cert. denied, 587 U.S. 1065 (2019).

3

17

the Section 924(c) conviction should be vacated.

See Br. in Opp.

at 10-11, Grzegorczyk v. United States, 142 S. Ct. 2580 (2022)

(No. 21-5967).

Petitioner’s assertions (Pet. 28) that the court of appeals’

approach imposes an “unfair” burden and leads to an “arbitrary

application of Johnson and Davis” are incorrect.

proof

and

persuasion

reflects

longstanding

“The burden of

and

fundamental

interests in finality,” and that burden applies to Johnson and

Davis claims “as with any other type of claim.”

Beeman v. United

States, 871 F.3d 1215, 1223 (11th Cir. 2017), cert. denied, 586

U.S. 1153 (2019).

Nor does requiring prisoners to meet the burden

of proof result in the selective application of Johnson or Davis.

As

the

First

“[r]equiring

Circuit

has

observed

in

[Section

2255

movants]

to

the

Johnson

establish

context,

--

by

a

preponderance of the evidence -- that they were sentenced pursuant

to the residual clause does not lead to treating similarly situated

defendants differently.

uniform rule.”

Precisely the opposite: it is imposing a

Dimott v. United States, 881 F.3d 232, 242, cert.

denied, 585 U.S. 1017 (2018).

“What would be arbitrary is to treat

Johnson [or Davis] claimants differently than all other § 2255

movants claiming a constitutional violation.”

Beeman, 871 F.3d at

1224.

Finally, petitioner is incorrect to the extent he contends

(Pet. 11, 13-14) that his claim is supported by Stromberg v.

California, 283 U.S. 359 (1931), which invalidated a conviction

18

based on a general verdict when the jury had been instructed on

alternative theories of guilt, one of which was unconstitutional.

Id. at 367-369.

Stromberg involved a direct appeal from a state-

court conviction, and thus did not implicate a federal prisoner’s

burden to prove his claim in order to obtain collateral relief.

And even Stromberg errors are subject to harmless-error review,

meaning that reversal is not warranted based on the theoretical

possibility that the jury relied on an improper ground.

Hedgpeth

v.

Pulido,

555

U.S.

57,

61-62

(2008)

(per

See

curiam).

Stromberg does not support petitioner’s view that he should be

allowed to use Davis to obtain plenary review of his conviction

years after the fact without demonstrating that his case actually

rests on a Davis error.

3.

Petitioner contends (Pet. 8-19) that this Court’s review

is warranted because of a disagreement among the courts of appeals

over

whether

prisoners

bringing

second

or

successive

Johnson

claims bear the burden to demonstrate that their sentence was based

on the ACCA’s residual clause.

But on petitioner’s own account

(Pet. 9-19), that disagreement has existed since at least 2017,

with nine of the ten circuits that petitioner identifies in the

split

having

joined

issue

by

2019.

This

Court

has

denied

certiorari on the Johnson question numerous times since then.

p. 10 n.1, supra.

See

And petitioner does not point to any development

in the intervening years that would warrant a different outcome

here.

19

Johnson claims themselves -- which must generally have been

filed by June 26, 2016, see 28 U.S.C. 2255(f)(3) -- have grown

increasingly stale.

And while petitioner appears now to have

abandoned his argument below that Davis claims should be subject

to a lower standard than Johnson claims, C.A. Reply Br. 4, any

disagreement with respect to Davis claims in particular -- which

themselves must have been filed by June 24, 2020, see 28 U.S.C.

2255(f)(3) -- has not been addressed by many circuits.

Like the court below, the Fifth and Tenth Circuits have

relied on Johnson cases to recognize that a prisoner bringing a

Davis claim must show that he was most likely sentenced under

Section 924(c)’s residual clause.

United States v. Lott, 64 F.4th

280, 283-284 (5th Cir. 2023); United States v. Bowen, 936 F.3d

1091, 1108-1109 (10th Cir. 2019).

While the Third Circuit has

permitted

so

Davis

claims

to

advance

long

as

the

prisoner’s

conviction “may have” been based on the residual clause, United

States v. Jordan, 96 F.4th 584, 589, cert. denied, 145 S. Ct. 256

(2024), the nascent disagreement is shallow.

And petitioner

himself has neither identified nor asserted it as a basis for this

Court’s review.

4.

In any event, this case would be an unsuitable vehicle

to resolve the question presented because the issue lacks practical

significance for petitioner.

While petitioner emphasizes (Pet.

23) the length of his Section 924(c) sentence, petitioner is

serving a separate life sentence for hostage-taking.

08-cr-20704

20

D. Ct. Doc. 109; p. 4, supra.

issue here.

That sentence is final and not at

It is therefore unlikely that even a favorable

decision by this Court on the question presented would have a

practical effect on petitioner’s prison term.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

Acting Assistant Attorney General

BRENDAN B. GANTS

Attorney

SEPTEMBER 2025