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Beeman v. United States

United States Court of Appeals, Eleventh Circuit

September 22, 2017

JEFFREY BERNARD BEEMAN, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket Nos. 4:16-cv-00143-HLM, 4:08-cr-00038-HLM-WEJ-1

          Before JULIE CARNES and EDMONDSON, Circuit Judges, and WILLIAMS, [*] District Judge.

          JULIE CARNES, CIRCUIT JUDGE.

         In 2009 Jeffrey Bernard Beeman was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g), and possession with intent to distribute a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Finding that Beeman was subject to enhanced sentences for his firearm and ammunition offenses under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the district court imposed three concurrent 210-month sentences. In 2016 Beeman filed a 28 U.S.C. § 2255 motion to vacate his sentence, contending that he was entitled to resentencing because in Johnson v. United States, 576 U.S., 135 S.Ct. 2551 (2015), the Supreme Court had struck down part of the ACCA as unconstitutionally vague. The district court denied his motion, and Beeman has appealed.

         I. BACKGROUND

         In 1990 Beeman was convicted in Georgia of aggravated assault. In 1999 he was convicted in Georgia of two counts of possession of cocaine with intent to distribute. Then, in 2009, he was convicted of the federal firearm, ammunition, and drug offenses giving rise to the 210-month sentences that he is challenging in his § 2255 motion.

         Normally a conviction for being a felon in possession of a firearm or ammunition carries a statutory maximum sentence of ten years. 18 U.S.C. §§ 922(g), 924(a)(2). But if a defendant who is convicted of one of those offenses already has three or more convictions for a "violent felony" or a "serious drug offense, " the ACCA provides that he must be sentenced to at least 15 years of imprisonment. Id. § 924(e)(1). When Beeman was sentenced in 2009, the ACCA defined a "violent felony" as follows:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

Id. § 924(e)(2)(B). The first prong of that definition, § 924(e)(2)(B)(i), is known as the "elements clause." Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016). The second prong, § 924(e)(2)(B)(ii), is itself split into two clauses. The first part, listing burglary, arson, extortion, or an offense involving the use of explosives, is known as the "enumerated offenses clause, " and the second part is known as the "residual clause." Id.

         Beeman's presentence investigation report (PSR) listed his conviction for aggravated assault and two convictions for possession of cocaine with intent to distribute and concluded that, based on those convictions, he qualified for the ACCA enhancement. Beeman did not object to that recommendation, and the district court adopted it without further discussion. The PSR did not recommend whether the aggravated assault conviction should be found to be a violent felony for ACCA purposes under the elements clause or the residual clause or both, and the district court did not specify whether its finding that the conviction qualified was based on the elements clause or the residual clause or both. Beeman appealed his convictions but not his sentences, and on July 8, 2010, this Court affirmed. United States v. Beeman, 386 F.App'x 827, 835 (11th Cir. 2010).

         On June 26, 2015, the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson, 135 S.Ct. at 2563. And in April 2016, the Court held that the Johnson decision is retroactively applicable to cases on collateral review. Welch v. United States, 578 U.S., 136 S.Ct. 1257, 1268 (2016).

         On June 7, 2016, Beeman filed his § 2255 motion, attacking his ACCA-enhanced sentences for his firearm and ammunition offenses. His argument proceeded in three parts. First, he contended that the Johnson decision invalidated his ACCA sentences because when he was sentenced in 2009 his Georgia conviction for aggravated assault would have qualified as a violent felony under the residual clause of the ACCA. Second, he pointed out that his aggravated assault conviction was not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elements clause he relied heavily on the Supreme Court's 2013 decision in Descamps v. United States, 570 U.S., 133 S.Ct. 2276 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifies as a predicate offense under the ACCA's enumerated offenses and elements clauses. See Mathis v. United States, 579 U.S., 136 S.Ct. 2243 (2016); Descamps, 133 S.Ct. 2276; Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990).

         The district court denied Beeman's § 2255 motion as untimely and, alternatively, on the merits. It determined that Beeman's § 2255 motion was untimely because he filed it more than a year after his judgment of conviction became final and the motion failed to raise a true Johnson claim, instead "at its core, rel[ying] on Descamps." As an alternative ground, the court determined that even under the Descamps decision, a Georgia conviction for aggravated assault qualifies as a violent felony under the ACCA's elements clause.

         II. DISCUSSION

         A. The Time Bar

         "We review de novo the district court's determination that a § 2255 motion to vacate is time-barred." Drury v. United States, 507 F.3d 1295, 1296 (11th Cir. 2007). The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year statute of limitations to bring a § 2255 motion. 28 U.S.C. § 2255(f). The limitations period begins to run on the latest of four possible triggering dates. See id. Typically, the applicable triggering date is "the date on which the judgment of conviction becomes final." Id. § 2255(f)(1). Beeman cannot rely on that limitations period, however, because he filed his § 2255 motion almost five years after its expiration. Instead, he asserts that his § 2255 motion is timely because he filed it within one year of the Supreme Court's Johnson decision, bringing it within the limitations period that begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. § 2255(f)(3).

         The § 2255(f) statute of limitations "requires a claim-by-claim approach to determine timeliness." See Zack v. Tucker, 704 F.3d 917, 924, 926 (11th Cir. 2013) (en banc); accord Davis v. United States, 817 F.3d 319, 327-28 (7th Cir. 2016) ("But as every other circuit to have considered the question has concluded, and we now hold, the timeliness of each claim asserted in either a section 2255 motion or a petition challenging a state-court conviction under 28 U.S.C. § 2254 must be considered independently.") (footnotes omitted). In other words, if a § 2255 movant asserts that his § 2255 motion is timely because he filed it within one year of the Supreme Court's issuance of a decision recognizing a new right, we must determine whether each claim asserted in the motion depends on that new decision. If a particular claim does not depend on the new decision, that claim is untimely and must be dismissed.

         In order for a Supreme Court decision to restart the one-year statute of limitations under § 2255(f)(3), the decision must both (1) recognize a new right and (2) be made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f)(3). The issuance of the Supreme Court's Johnson decision meets both of those requirements. The Supreme Court held in Welch that Johnson announced a new rule that is retroactively applicable to cases on collateral review. See Welch, 136 S.Ct. at 1268. Because the Supreme Court issued Johnson on June 26, 2015, Johnson, 135 S.Ct. 2551, a § 2255 movant wishing to raise a Johnson claim had until June 26, 2016, to file a motion obtaining that claim. See 28 U.S.C. § 2255(f)(3).

         On the other hand, the issuance of the Descamps decision cannot qualify as a triggering date under § 2255(f)(3). It is true that we have held that the Descamps decision is retroactively applicable to cases on collateral review. Mays, 817 F.3d at 733-34. But being retroactively applicable to cases on collateral review is only part of the test for restarting the statute of limitations. AEDPA also requires that the right have been "newly recognized by the Supreme Court." 28 U.S.C. § 2255(f)(3).

         In holding that the Descamps decision is retroactively applicable to cases on collateral review, our Mays decision makes clear that Descamps did not set out a newly recognized right. In fact, we based our decision on the recognition that "Descamps did not announce a new rule-its holding merely clarified existing precedent." 817 F.3d at 734; see also Descamps, 133 S.Ct. at 2283 ("Our caselaw explaining the categorical approach and its 'modified' counterpart all but resolves this case."). And as we have explained, "[i]f the decision merely clarifies an old rule, . . . . the petitioner will not be able to take advantage of the extended statute of limitations under § 2255, which requires a newly recognized right by the Supreme Court." Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 n.4 (11th Cir. 2012). As a result, a § 2255 movant wishing to raise a Descamps claim ...


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