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United States v. Hubert

United States Court of Appeals, Eleventh Circuit

March 19, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHAEL ST. HUBERT, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20621-FAM-1

          Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.[*]

         BY THE COURT:

         A member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

          TJOFLAT, Circuit Judge, joined by ED CARNES, Chief Judge, and WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges, concurring in the denial of rehearing en banc.

         Two dissents-those by Judges Wilson and Martin-have seized upon this direct appeal case as an opportunity to criticize our Court's processing and publishing of orders on federal prisoners' applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.

         These two dissents focus on only prisoners' post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners' applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.

         Third, to correct the record about our Court's published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn't (nor has there ever been) any crisis about our Court's published orders.

         I. INSTANT CASE IS DIRECT CRIMINAL APPEAL

         Let's start with what type of proceeding the instant case is and is not. This criminal case is a direct appeal, wherein the appellant-defendant St. Hubert challenges his two federal firearm convictions under 18 U.S.C. § 924(c). St. Hubert has never disputed that he had and brandished a firearm while robbing an AutoZone store on January 21, 2015, and while attempting to rob another AutoZone store on January 27, 2015. United States v. St. Hubert, 909 F.3d 335, 338-40 (11th Cir. 2018).

         Rather, St. Hubert contends that his admitted Hobbs Act robbery crimes do not qualify as predicate "crimes of violence" under § 924(c)(3)'s definitions. Id. at 340. After briefing and oral argument, a panel of this Court affirmed St. Hubert's firearm convictions, concluding his predicate armed robbery offenses qualify as crimes of violence under § 924(c)(3)'s residual and elements clauses. See id. at 344-53. In affirming, the St. Hubert panel followed, in part, this Court's binding precedent in In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016), which held that Hobbs Act robbery qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(A)'s elements clause. St. Hubert, 909 F.3d at 345-46.

         In doing so, our St. Hubert panel pointed out that five other circuits, like our In re Saint Fleur published order, had held that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A)'s elements clause. United States v. Barrett, 903 F.3d 166, 174 (2d Cir. 2018), petition for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States v. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 139 S.Ct. 494 (2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch, 850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S.Ct. 2230 (2017); United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S.Ct. 2228 (2017). Since that time, two other circuits have held the same. United States v. Bowens, 907 F.3d 347, 353-54 (5th Cir. 2018), petition for cert. filed, No. 18-7612 (U.S. Jan. 28, 2019); United States v. Garcia-Ortiz, 904 F.3d 102, 106-09 (1st Cir. 2018), petition for cert. filed, No. 18-7176 (U.S. Dec. 27, 2018). As to Hobbs Act robbery, our Court is simply not an outlier.

         In addition to direct appeals like this case, a federal prisoner has a second post-conviction opportunity to challenge his sentence by timely filing an initial § 2255 motion in the district court. Section 2255(a) provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). If the district court denies the initial § 2255 motion, the federal prisoner may directly appeal that ruling to this Court. Id. § 2255(d).

         In short, as important factual context, the dissents do not address, or complain about, direct appeals or initial § 2255 motions, whereby a federal prisoner already has had two post-conviction opportunities to challenge his sentence. Rather, the dissents ignore those two avenues of redress and are using this direct-appeal case as a vehicle to write about only a third type of post-conviction proceeding: a federal prisoner's application to file a second or successive § 2255 motion pursuant to § 2255(h). I therefore turn to § 2255(h), which restricts prisoners' applications to file successive § 2255 motions.

         II. PRISONERS' APPLICATIONS TO FILE SUCCESSIVE § 2255 MOTIONS

         After a federal prisoner has used his two post-conviction opportunities to challenge his sentence (through a direct appeal and an initial § 2255 motion), Congress has narrowly and significantly limited the subsequent or successive times a federal prisoner can challenge his final sentence. 28 U.S.C. § 2255(h). In the § 2255(h) statute, Congress has restricted such successive post-conviction challenges to only two types of highly circumscribed claims: (1) claims based on "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense"; or (2) claims based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id.

         Congress imposed these restrictions on successive § 2255 motions in order to achieve finality of federal criminal judgments and to stop an endless flow of post-conviction petitions by federal prisoners in the federal courts. See Gonzalez v. Sec'y for Dep't of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (en banc) ("The central purpose behind the [Antiterrorism and Effective Death Penalty Act ("AEDPA")] was to ensure greater finality of state and federal court judgments in criminal cases, and to that end its provisions greatly restrict the filing of second or successive petitions."); see also Williams v. Warden, 713 F.3d 1332, 1338 (11th Cir. 2013) ("Congress expressed its clear intent to impose a jurisdictional limitation on a federal court's ability to grant a habeas petitioner what is effectively a third bite at the apple after failing to obtain relief on direct appeal or in his first postconviction proceeding."); Gilbert v. United States, 640 F.3d 1293, 1311 (11th Cir. 2011) (en banc) ("The statutory bar against second or successive motions is one of the most important AEDPA safeguards for finality of judgment.").

         Significantly here, Congress required all federal prisoners to get advance permission from a federal appellate court in order to even file a successive post-conviction § 2255 motion in a federal district court. 28 U.S.C. § 2255(h) ("A second or successive motion must be certified . . . by a panel of the appropriate court of appeals . . . ."). And Congress has limited the authority of this appellate Court to grant applications only to where the prisoner's application "makes a prima facie showing that the application satisfies the requirements of [§ 2255(h)]." See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). Accordingly, as relevant here, for our Court to grant a federal prisoner's post-conviction application, the prisoner must make a prima facie showing that a new substantive rule of constitutional law retroactively applied to his case and invalidated his sentence. Id. Further, Congress has directed appellate courts to rule on such applications to file successive § 2255 motions within 30 days from the filing. See id. § 2244(b)(3)(D) ("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.").

         These substantial restrictions on federal prisoners filing successive § 2255 post-conviction motions are not our rules, but Congress's statutory mandates to federal courts. After a final judgment and an initial § 2255 post-conviction motion, there is no federal court jurisdiction to consider a successive § 2255 motion except for these two limited types of claims specified in § 2255(h).

         Although Congress's statutory restrictions on federal court jurisdiction are substantial, the Supreme Court has at times, albeit not often, issued decisions that ultimately fall within the scope of § 2255(h)(2). As an example, in 2015, the U.S. Supreme Court issued its decision in Johnson v. United States, which held that the "residual clause" definition of a "violent felony" in the Armed Career Criminal Act ("ACCA") was unconstitutionally vague. --- U.S. ---, 135 S.Ct. 2551, 2555-58, 2563 (2015). The ACCA imposes a sentence enhancement if a convicted federal prisoner was already convicted of three prior "violent felonies." 18 U.S.C. § 924(e)(1). Thereafter, the Supreme Court in Welch v. United States held that Johnson announced a new substantive rule that applies retroactively on collateral review to federal sentences enhanced under the ACCA. 578 U.S.,,, 136 S.Ct. 1257, 1264-65, 1268 (2016).

         After Johnson invalidated the ACCA's residual clause and as shown by this Court's statistics in Table 1 below, a large number of federal prisoners' applications-2, 258 applications in our Court in 2016 alone-were filed seeking leave to file second or successive § 2255 motions based on Johnson's ACCA ruling about the residual clause. And in 2016, our Court issued 2, 282 orders on those 2, 258 applications and a few applications carried over from the end of the prior year.

         As required by Congress, the prisoners had to file in this Court before filing in the district court and had to show a prima facie case that Johnson applied to their sentences. The Court carefully reviewed each and every individual application. The Court determined that some of those federal prisoners who filed were not even sentenced under the ACCA, and Johnson did not apply to their cases at all. See, e.g., In re Griffin, 823 F.3d 1350, 1354-56 (11th Cir. 2016) (holding that Johnson's vagueness ruling does not apply to prisoners sentenced under the career offender sentencing guidelines). In its review, this Court also readily determined that other prisoners had an ACCA-enhanced sentence, but that-based on our prior Court precedent-the prisoners' prior convictions qualified as violent felonies under the ACCA's elements clause, without regard to the ACCA's residual clause invalidated in Johnson. See, e.g., In re Rogers, 825 F.3d 1335, 1341 (11th Cir. 2016) (holding that, under this Court's prior precedent in Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), the defendant's prior Florida convictions for aggravated assault and aggravated battery qualified as violent felonies under the ACCA's elements clause); In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016) (holding that, under this Court's prior precedent in United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), United States v. Hill, 799 F.3d 1318 (11th Cir. 2015) (per curiam), and Turner, the defendant's prior Florida convictions for armed robbery and aggravated battery qualified as violent felonies under the ACCA's elements clause).

         In addition, some prisoners claimed the ACCA sentencing decisions in Johnson and Welch invalidated their sentences (or convictions) under wholly separate federal statutes, such as 18 U.S.C. § 924(c) and its "crime of violence" definition. In those cases, this Court determined that Johnson's residual clause holding did not apply to companion § 924(c) crimes and that, even assuming Johnson did, the prisoners' crimes qualified under § 924(c)'s elements clause, which likewise was not affected by Johnson. See, e.g., In re Sams, 830 F.3d 1234, 1236, 1238-39 (11th Cir. 2016); In re Colon, 826 F.3d 1301, 1302-03, 1305 (11th Cir. 2016); In re Saint Fleur, 824 F.3d at 1338-40.

         The dissents improperly criticize our Court for publishing some of our 2, 282 orders in these cases in 2016. However, the dissents ignore that our Court published only 31, or 1.36%, of our large volume of 2, 282 orders in 2016. In fact, taking the five-year period from April 1, 2013 to April 1, 2018, [1] our Court published only 1.2% of its orders in § 2255(h) applications.

         To accurately show these facts, I include two tables of statistics below, which demonstrate that this Court published a total of 45 orders from April 1, 2013 to April 1, 2018.[2] Given the dissents primarily criticize our 2016 published orders as to applications to file successive § 2255(h) motions, Tables 1 and 2 separate the total 45 published orders by year and category of order: either § 2255(h) or § 2244(b).[3] Table 1 shows that 39 of those 45 orders were published in § 2255(h) applications from April 1, 2013 to April 1, 2018 and that 31 of those 39 orders were published in 2016. Table 2 shows that only 6 of those 45 orders were published in § 2244(b) applications from 2013 to 2018.[4]

         Table 1: Number of Applications for Leave to File Successive § 2255(h) in the Eleventh Circuit For Years from April 1, 2013 to April 1, 2018

Year[5]

§ 2255(h) Applications

Orders of Terminations

Published

% of Published Orders

2013

264

273

1

0.37%

2014

219

224

1

0.45%

2015

226

187

4

2.14%

2016

2, 258

2, 282

31

1.36%

2017

293

294

2

0.68%

TOTAL

3, 260

3, 260

39

1.20%

         Table 2: Number of Applications for Leave to File Successive § 2244(b) in the Eleventh Circuit For Years from April 1, 2013 to April 1, 2018

Year

§ 2244(b) Applications

Orders of Terminations

Published

% of Published Orders

2013

344

336

1

0.30%

2014

310

316

3

0.95%

2015

320

324

2

0.62%

2016

274

270

0

0.00%

2017

283

290

0

0.00%

TOTAL

1, 531

1, 536

6

0.39%

         In 2016 after the Johnson and Welch decisions, there was a heightened need to publish at least some of these 2, 282 orders to establish precedent, to provide consistency in panel rulings in so many cases, and to facilitate the administration of these matters. In some cases, it was not hard to see the right answer. In 2016, 8 of the 31 published orders in § 2255(h) cases granted the applications and 23 denied the applications.[6] Further, the dissents fail to note that in all pro se application cases in our Circuit, including every single application in 2016 to file a successive § 2255 motion, our Court's Staff Attorney's Office prepared legal memoranda addressing the Johnson-Welch issues and, in many cases, reviewed presentence investigation reports and sentencing transcripts. In addition, in some prisoners' cases, there were legal memoranda filed by a federal public defender or the government or both later on.

         Contrary to the dissents' criticisms, and as Table 1 demonstrates, our Court published a very small percentage of these orders ruling on applications to file successive § 2255 motions. Although our Court published more in 2016 than in other years, largely in the wake of Johnson and Welch, the percentage still stayed exceedingly small at 1.36%.[7] And to be clear, all of this Court's judges- including those who dissent today-have joined in these orders.

         Notably too, in 2016 alone, the dissenters-as at least two members of the assigned three-judge panel (and sometimes all three members)-published 14 of their own orders on prisoners' applications to file successive § 2255 motions based on Johnson. Thus, the dissenters published 14 of the 31 published orders in 2016. That is roughly 45%. See In re Hunt, 835 F.3d 1277 (11th Cir. 2016); In re Parker, 832 F.3d 1250 (11th Cir. 2016); In re Chance, 831 F.3d 1335 (11th Cir. 2016), abrogation recognized by Curry v. United States, 714 Fed.Appx. 968 (11th Cir. 2018); In re Jones, 830 F.3d 1295 (11th Cir. 2016); In re Gomez, 830 F.3d 1225 (11th Cir. 2016); In re Davis, 829 F.3d 1297 (11th Cir. 2016); In re Clayton, 829 F.3d 1254 (11th Cir. 2016); In re Sapp, 827 F.3d 1334 (11th Cir. 2016); In re Parker, 827 F.3d 1286 (11th Cir. 2016); In re McCall, 826 F.3d 1308 (11th Cir. 2016); In re Rogers, 825 F.3d 1335 (11th Cir. 2016); In re Adams, 825 F.3d 1283 (11th Cir. 2016); In re Pinder, 824 F.3d 977 (11th Cir. 2016); In re Robinson, 822 F.3d 1196 (11th Cir. 2016).

         Before that, in 2015, there were only four published orders in such § 2255(h) applications, yet the dissenters, as at least two members of the assigned three-judge panel, published two of those four orders-50% that year.[8] In re Johnson, 814 F.3d 1259; In re Starks, 809 F.3d 1211.

         None of the dissents tell the reader this full story.[9]

         III. PUBLISHED PANEL ORDERS AS BINDING CIRCUIT PRECEDENT

         Having placed this subject matter in context, I now turn to the dissents' attacks on our Court's rule: that published panel orders are binding precedent under our prior panel precedent rule.

         First, that published panel orders are binding precedent is not a new rule. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) ("To be clear, our prior-panel-precedent rule applies with equal force as to prior panel decisions published in the context of applications to file second or successive petitions. In other words, published three-judge orders issued under § 2244(b) are binding precedent in our circuit."); United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009) (applying In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), a published three-judge order); In re Provenzano, 215 F.3d at 1235 (applying as binding prior-panel precedent In re Medina, 109 F.3d 1556 (11th Cir. 1997), a published three-judge order); see also In re Hill, 777 F.3d 1214, 1222-23 (11th Cir. 2015) (applying as binding precedent In re Henry, 757 F.3d 1151 (11th Cir. 2014), a published three-judge order); St. Hubert, 909 F.3d at 346 (concluding our Circuit already considers published three-judge orders as binding precedent).

         Second, the dissenters incorrectly state that our Court's published orders are insulated from further review. Contrary to the dissents, no published panel order in any case in our Court is insulated from further review.

         For example, whenever a panel publishes an order in any case in our Court, any one of the active members of this Court can sua sponte request an en banc poll in the exact same case asking that the published order be vacated and the case be heard en banc. See Lambrix, 776 F.3d at 794; see also In re Johnson, 815 F.3d 733, 733 (11th Cir. 2016) (en banc) (granting rehearing en banc in a successive application case after a member of this Court requested a poll); In re Morgan, 717 F.3d 1186, 1187 (11th Cir. 2013) (en banc) (denying rehearing en banc in a successive application case after a member of this Court requested a poll); 11th Cir. R. 35, I.O.P. 5 ("Any active Eleventh Circuit judge may request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party."). If the majority of the active judges vote to do so, this Court sitting en banc sua sponte can vacate that published panel order and rehear that same case. See In re Johnson, 815 F.3d at 733; 11th Cir. R. 35-10 ("[T]he effect of granting a rehearing en banc is to vacate the panel opinion and the corresponding judgment."). The real problem for the dissenters, it seems to me, is that they have not garnered the majority votes needed to vacate the particular published panel orders with which they disagree.

         In addition, each and every subsequent case following that initial published order provides a second avenue of review. This direct appeal in St. Hubert's case aptly illustrates this second available avenue of review of binding precedent established in a published panel order.

         Here, the St. Hubert panel relied on our binding precedent in In re Saint Fleur, a published panel order. St. Hubert, 909 F.3d at 345-46 (following In re Saint Fleur's holding that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause, and thus Saint Fleur's sentence was valid even if Johnson rendered § 924(c)(3)(B)'s residual clause unconstitutional). Every time a panel applies this In re Saint Fleur precedent (as the St. Hubert panel did here), any active member of the Court can ask for en banc review of that In re Saint Fleur precedent established in our Court's published panel order. Such an en banc poll was taken in this very case. Simply put, our Circuit law established in published panel orders, such as the In re Saint Fleur precedent, is subject to an en banc poll request each and every time it is applied in a subsequent case (like St. Hubert's).

         Again, the problem for the dissenters is that the law established in the In re Saint Fleur published order is sound, and thus the dissenters have been unable to garner the majority votes needed to change that In re Saint Fleur precedent by taking St. Hubert en banc. Moreover, after our Court's In re Saint Fleur published order in 2016, at least seven of our sister circuits have reached the same holding that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. See Bowens, 907 F.3d at 353-54; Garcia-Ortiz, 904 F.3d at 106- 09; Barrett, 903 F.3d at 174; Melgar-Cabrera, 892 F.3d at 1064-66; Diaz, 863 F.3d at 783-84; Gooch, 850 F.3d at 291-92; Rivera, 847 F.3d at 848-49.[10]

         One dissent also points to, and criticizes by name, eight published orders by our Court from 2016 to 2018 about what constitutes a violent felony under the ACCA or a crime of violence under § 924(c). See Martin, J., dissenting at 14. But as Table 1 above makes obvious, this is a byproduct of the large number of cases that required and received our attention in 2016 to 2018. Surely, the number of published panel orders in 2016 to 2018 should be placed in the context of our 2016 to 2018 caseload in this regard.

         It also bears mentioning that since we published these eight orders, other circuits have reached the same conclusions as many of them about what constitutes a violent felony or a crime of violence. For example, in In re Hines, 824 F.3d 1334, 1336-37 (11th Cir. 2016), cited in Judge Martin's dissent on page 19, this Court held that armed federal bank robbery under 18 U.S.C. § 2113(a) and (d) qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. In In re Sams, 830 F.3d at 1239, this Court further held that bank robbery solely under § 2113(a) qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. Like In re Hines and In re Sams, nine other circuits have held that companion federal convictions for bank robbery under § 2113(a) or armed bank robbery under § 2113(a) and (d) qualify as either violent felonies under the ACCA's elements clause or as crimes of violence under the elements clauses of § 924(c) or U.S.S.G. § 4B1.2(a). See United States v. Deiter, 890 F.3d 1203, 1210-13 (10th Cir. 2018) (holding bank robbery under § 2113(a) is a violent felony under the ACCA's elements clause); United States v. Harper, 869 F.3d 624, 625-27 (8th Cir. 2017) (holding bank robbery under § 2113(a) is a crime of violence under § 4B1.2(a)'s elements clause); United States v. Brewer, 848 F.3d 711, 713-16 (5th Cir. 2017) (same); United States v. McBride, 826 F.3d 293, 295-96 (6th Cir. 2016) (same); United States v. Johnson, 899 F.3d 191, 203-04 (3d Cir. 2018) (holding that both bank robbery and armed bank robbery qualify as crimes of violence under § 924(c)'s elements clause); United States v. Watson, 881 F.3d 782, 784-86 (9th Cir. 2018) (same); Hunter v. United States, 873 F.3d 388, 390 (1st Cir. 2017) (same); United States v. Armour, 840 F.3d 904, 907-09 (7th Cir. 2016) (same); United States v. McNeal, 818 F.3d 141, 151-57 (4th Cir. 2016) (same).

         Similarly, in In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016), also cited in Judge Martin's dissent on page 19, this Court held that federal carjacking under 18 U.S.C. § 2119 qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. Four other circuits have likewise held that federal carjacking under § 2119 qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. See United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018); United States v. Gutierrez, 876 F.3d 1254, 1255-57 (9th Cir. 2017), cert. denied, 138 S.Ct. 1602 (2018); United States v. Jones, 854 F.3d 737, 740-41 & n.2 (5th Cir.), cert. denied, 138 S.Ct. 242 (2017); United States v. Evans, 848 F.3d 242, 246-48 (4th Cir.), cert. denied, 137 S.Ct. 2253 (2017).

         The judges of this Court may have valid differences of opinion about the legal issues involving the ACCA's definition of a violent felony or § 924(c)'s definition of a crime of violence, as discussed in these 31 published orders during 2016 and the 4 published orders during 2015. However, it is incorrect to say, as the dissents do, that binding precedent established in published panel orders of this Court, like In re Saint Fleur, are insulated from all further review. In the wake of Johnson and Welch, the judges of this Court and the Court's dedicated staff attorneys and law clerks worked long hours faithfully reviewing and considering 2, 282 prisoners' applications in 2016 alone. This concurrence is done to afford the needed context to the process and our Court's having published 31 orders on those applications to file successive § 2255 motions in 2016.[11]

         For all of these reasons, I concur in this Court's denial of rehearing en banc (1) as to whether Hobbs Act robbery qualifies as a crime of violence under § 924(c)'s definitions and (2) as to our Court's rule that published panel orders constitute binding precedent.[12]

          WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc.

         Consider a hypothetical. A defendant is convicted of a federal crime and sentenced to a term of imprisonment. His conviction and sentence are affirmed on appeal. He brings a collateral challenge, see 28 U.S.C. § 2255(a), but it fails. Perhaps he brings more than one collateral challenge; all of them fail. Eventually, in some other case, the Supreme Court announces a new rule of law that applies retroactively to cases on collateral review. But the new rule plainly cannot benefit the prisoner-either because it does not apply to his situation or because applying it would make no difference to his conviction or sentence. Even so, he applies to this Court for permission to file a second, third, or umpteenth collateral challenge based on the new rule. Does the Antiterrorism and Effective Death Penalty Act require that we grant his application and create unnecessary work for the district court? Judge Martin's dissent appears to contend that the answer is "yes." Our Court has disagreed.

         I join Judge Tjoflat's opinion in full, but I write separately to answer our colleague's challenge and to defend our commonsense practice of denying prisoners' applications to file doomed collateral challenges that cannot possibly bring them relief. The basis of our colleague's argument that denying these applications contravenes "the plain mandate" of the Act is not entirely clear. Dissenting Op. of Martin, J., at 60. Her dissent draws an insistent but far from self- explanatory distinction between a "prima facie showing" and a "merits decision," and it suggests that we held in In re Holladay, 331 F.3d 1169 (11th Cir. 2003), that our prima facie assessment of a prisoner's application to file a second or successive collateral challenge must not touch "the merits" of the claims the prisoner wishes to raise. But we explained in Holladay itself-indeed, we said it was "manifestly obvious"-that we would deny applications that had no "reasonable likelihood" of resulting in relief. Id. at 1173. After all, whenever a circuit court denies an application for a second or successive motion, it necessarily decides that the application has no merit. And the circuit courts collectively deny thousands of these applications on the merits every year.

         To vindicate the strong interest in the finality of fully litigated criminal convictions, the Antiterrorism and Effective Death Penalty Act imposes "stringent requirements for the filing of a second or successive [collateral challenge]," id. (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)), and, as Judge Martin's dissent acknowledges, it gives courts of appeals "a gatekeeping function" with respect to the enforcement of those requirements, Dissenting Op. of Martin, J., at 84. Before a federal prisoner may file a second or successive section 2255 motion in the district court, he must apply to "the appropriate court of appeals" for permission to do so. 28 U.S.C. § 2244(b)(3)(A); see id. § 2255(h) (incorporating these procedures for federal prisoners). The court of appeals must then "certif[y] as provided in section 2244" that the motion will "contain-

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

Id. § 2255(h); see also id. § 2244(b)(2) (analogous requirements for state prisoners with minor differences in wording). We are permitted to authorize a second or successive challenge only if we "determine[] that the application makes a prima facie showing that [it] satisfies the[se] requirements." Id. § 2244(b)(3)(C).

         Judge Martin's dissent revolves around the three words "prima facie showing," but that phrase does not interpret itself. Often, a "prima facie case" or "prima facie showing" refers to what a plaintiff must prove to shift the burden of proof or production to the defendant. See Dissenting Op. of Martin, J., at 69 (citing Black's Law Dictionary for a definition in this vein). The dissent provides as two examples the burden-shifting frameworks that govern claims of racial discrimination in jury selection, see Batson v. Kentucky, 476 U.S. 79 (1986), and workplace discrimination under Title VII of the Civil Rights Act, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dissenting Op. of Martin, J., at 69-71. In these frameworks, "prima facie showing" has a purely formal meaning: it defines the set of elements proof of which suffices to raise a presumption of liability, subject to rebuttal if the defense meets some specified burden of its own.

         But this formal sense of the phrase "prima facie showing" does not fit section 2244(b)(3)(C). The statutory restrictions on second or successive collateral challenges plainly do not set up a burden-shifting framework. A prisoner's prima facie showing of compliance with section 2255(h) does not create any presumption that the government must rebut with an adequate showing of its own. Indeed, the prima facie showing does not even create a presumption of compliance with section 2255(h); the district court approaches that question de novo. See In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013). So how does our "prima facie" inspection of the prisoner's application differ from the district court's plenary assessment? The Act demands an answer to this question, but the dissent's analogies to burden-shifting frameworks do not help us find it.

         When "prima facie showing" cannot bear a formal definition, it sometimes bears instead a functional meaning. For example, the Board of Immigration Appeals describes the standard for reopening of removal proceedings as requiring "a prima facie showing of eligibility" for the relief sought. In re L-O-G-, 21 I. & N. Dec. 413, 415 (BIA 1996); see also Matter of Sipus, 14 I. & N. Dec. 229, 230 (BIA 1972) (referring to "a prima facie case for reopening"). Judge Martin's dissent provides this example, see Dissenting Op. of Martin, J., at 71-72, but it undermines the argument that "prima facie showing" has a rigid meaning that categorically excludes consideration of the merits. The Board has made clear that "[n]o hard and fast rule can be laid down as to what constitutes a sufficient showing of a prima facie case for reopening." Sipus, 14 I. & N. Dec. at 231; accord L-O-G-, 21 I. & N. Dec. at 418 ("[T]here are no easy rules for deciding what makes a prima facie case . . . and what does not.").

         Instead, in this context, a prima facie showing is simply whatever "satisf[ies] [the Board] that it would be worthwhile to develop the issues further at a plenary hearing on reopening." Sipus, 14 I. & N. Dec. at 231. This standard is not blind to the merits. On the contrary, it requires "a reasonable likelihood of success on the merits" in the judgment of the Board, and, under this standard, the Board has denied motions for reopening for a variety of merits-related reasons. L-O-G-, 21 I. & N. Dec. at 420. For example, in Sipus, the movant's "new facts" were plainly inadequate to support eligibility for relief, so the Board could not "infer . . . that she [might] be able to prove [eligibility] if given a chance at a reopened hearing." 14 I. & N. Dec. at 231. The Board has also denied a motion for reopening based on its discretionary determination in the first instance that the movant had been convicted of "a particularly serious crime," making him legally ineligible for relief. In re S-V-, 22 I. & N. Dec. 1306, 1309 (BIA 2000), disapproved on other grounds by Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006).

         In the foundational decision about section 2244(b)(3)(C), the Seventh Circuit interpreted it to include a similar "worthwhileness" standard: "By 'prima facie showing' we understand . . . simply a sufficient showing of possible merit to warrant a fuller exploration by the district court." Bennett, 119 F.3d at 469. The Seventh Circuit made clear that this definition did not treat "prima facie showing" as a legal term of art with a formal meaning because it was articulated "without guidance in the statutory language or history or case law." Id. In Holladay, we adopted this language from Bennett, see 331 F.3d at 1173-74, and every other numbered circuit has done the same. See Rodriguez v. Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998); Bell v. United States, 296 F.3d 127, 128 (2d Cir. 2002); Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir. 2007); In re Williams, 330 F.3d 277, 281 (4th Cir. 2003); Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001); In re Lott, 366 F.3d 431, 432-33 (6th Cir. 2004); Johnson v. United States, 720 F.3d 720, 720 (8th Cir. 2013); Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997); United States v. Murphy, 887 F.3d 1064, 1068 (10th Cir. 2018).

         Although Judge Martin's dissent invokes the Bennett-Holladay standard to lament the supposed good old days "when this Court honored the statutorily imposed limitations of a prima facie review," Dissenting Op. of Martin, J., at 73, the Seventh Circuit in Bennett did not describe its definition as especially permissive or as one that required courts of appeals to close their eyes to the impossibility of relief. On the contrary, when Donald Bennett sought permission to file a third section 2255 motion under the "newly discovered evidence" gateway for successive motions, see 28 U.S.C. § 2255(h)(1), the Bennett court stressed that he bore a "very heavy burden" of "ha[ving] to show, albeit only prima facie, that the newly discovered evidence would have established [his innocence] by clear and convincing evidence," and it denied his application because the evidence he relied on was plainly inadequate. 119 F.3d at 469. In part, Bennett's burden was especially heavy because he wanted to relitigate an insanity defense that itself required clear and convincing proof, so his burden of proof was clear-and-convincing squared. See id. But Bennett makes clear that a court of appeals' "prima facie" inspection of an application under section 2255(h) does not require it to close its eyes to the merits altogether. After all, how could "a fuller exploration" be "warrant[ed]," id., when it would serve only to waste the district court's time and be of no use to the prisoner?

         Perhaps our colleague would limit the Bennett court's willingness to acknowledge that a motion is certainly doomed to the "newly discovered evidence" gateway, but she cannot take that position and eulogize Holladay at the same time because Holladay followed the same approach with respect to the "new rule" gateway, 28 U.S.C. § 2255(h)(2); see also id. § 2244(b)(2)(A). When Alabama death-row inmate Glenn Holladay sought leave to file a second federal habeas petition based on the Supreme Court's novel holding that the Constitution bars the execution of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304 (2002), we held that Atkins provided a retroactive new rule of constitutional law, but "[i]mportantly" that holding "[did] not terminate our analysis." 331 F.3d at 1173. Describing the identification of a new rule as "merely . . . the minimum showing that [a petitioner] must make," we held that it was "manifestly obvious that in order to make a prima facie showing" based on Atkins, "Holladay also must demonstrate . . . a reasonable likelihood that he [was] in fact mentally retarded." Id.; accord In re Morris, 328 F.3d 739, 740-41 (5th Cir. 2003); In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005). "Were it otherwise," we reasoned, "literally any prisoner under a death sentence could bring an Atkins claim in a second or successive petition," and "[n]o rational argument can possibly be made" that the Act requires us to permit the inundation of the district courts with wholly meritless second or successive collateral challenges every time the Supreme Court announces a new rule. Holladay, 331 F.3d at 1173 n.1.

         Under Holladay's sensible regime, a prisoner cannot discharge his prima facie burden merely by invoking a new rule; as we phrased the standard in a later decision, he must also "show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in a second or successive [challenge]." In re Henry, 757 F.3d 1151, 1162 (11th Cir. 2014); cf. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (distinguishing legal conclusions in a complaint from the "show[ing]" of entitlement to relief required by Federal Rule of Civil Procedure 8(a)(2)). To put it tersely, the prisoner must show that the new rule has some "bearing on his case." Henry, 757 F.3d at 1162.

         Judge Martin may disagree with Holladay-as the Tenth Circuit did in a decision that her dissent cites favorably, see Ochoa v. Sirmons, 485 F.3d 538, 545 (10th Cir. 2007)-but in that case she should not invoke its authority while rejecting its rule, which we applied in all of the orders to which her dissent takes exception. See Dissenting Op. of Martin, J., at 75-77. For example, a prisoner whose sentence under the Armed Career Criminal Act "does not turn on the validity of the residual clause," In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016), is a prisoner who cannot possibly benefit from the Supreme Court's holding that the residual clause is unconstitutionally vague, see Johnson v. United States, 135 S.Ct. 2551 (2015). So is a prisoner whose conviction for carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c), or whose sentence under the former career-offender sentencing guideline, United States Sentencing Guidelines Manual §§ 4B1.1-4B1.2 (Nov. 2015), would stand whether or not Johnson affects section 924(c) or the career-offender guideline. In declining to permit "literally any prisoner under [an Armed Career Criminal Act, section 924(c), or career-offender] sentence [to] bring a[] [Johnson] claim in a second or successive petition," Holladay, 331 F.3d at 1173 n.1, we have not "exceeded [our] statutory mandate," Dissenting Op. of Martin, J., at 74. Instead, we have executed our statutory mandate as we interpreted it in Holladay, which, as the dissent reminds us, "is still binding precedent for our Circuit." Id. at 73.

         The logic of Holladay exposes any rigid dichotomy between a prisoner's "prima facie showing" and "the merits" of his claim as untenable. True, whether Johnson or any other new rule that a prisoner invokes really supports his claim is a question that relates to "the merits." But it is no less true that a prisoner's prima facie showing must include the demonstration that his motion will "contain," 28 U.S.C. § 2255(h)(2), or "rel[y] on," id. § 2244(b)(2)(A), a new rule of constitutional law, and that requirement demands more than that the prisoner write the magic word "Johnson." If a new rule plainly does not apply to a prisoner's situation or applying it would make no difference to his conviction and sentence, then he necessarily cannot "show a reasonable likelihood that that he would benefit from the new rule," and his application fails at the starting gate for the same reason his collateral challenge would fail on the merits. Henry, 757 F.3d at 1162. So it is no wonder that we and other courts have frequently referred to "the merits" in asking whether an application satisfies section 2255(h). See, e.g., In re Baptiste, 828 F.3d 1337, 1340 (11th Cir. 2016) (calling the denial of a previous application raising the same claim a "reject[ion] on the merits"); Henry, 757 F.3d at 1157 n.9 ("As the dissenting opinion sees the case, Henry should be entitled to file a second or successive petition under § 2244(b)(2) because he's made a sufficient merits showing."); id. at 1169 (Martin, J., dissenting) ("I must also address the merits of Mr. Henry's case."); id. at 1170 ("I view the merits . . . differently than the Majority."); Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) ("reach[ing] the merits" of a prisoner's application for leave to file a second or successive motion).

         There is nothing remotely strange about this partial overlap between a threshold inquiry and the merits. Consider "the somewhat analogous certificate of appealability . . . context," In re Saint Fleur, 824 F.3d 1337, 1343 (11th Cir. 2016) (Martin, J., concurring), in which "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has "emphasized" that this inquiry "is not coextensive with a merits analysis." Buck v. Davis, 137 S.Ct. 759, 773 (2017). But as the Court explained in the same discussion, "[o]f course when a court of appeals . . . determines that a prisoner's claim is not even debatable, that necessarily means the prisoner has failed to show that his claim is meritorious." Id. at 774. Indeed, the Supreme Court itself has affirmed the denial of a certificate of appealability based on its determination that a habeas petitioner's claim failed as a matter of constitutional law. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (posing the dispositive question "whether the Constitution requires anything more" than the jury instructions the petitioner challenged and "hold[ing] that it does not"). In the second-or-successive context as in the appealability framework, that a threshold procedural inquiry and the merits are not coextensive does not mean that they do not overlap.

         Even in the Batson and Title VII examples-which, as I have explained, do not clarify what section 2244(b)(3)(C) means when it refers to "a prima facie showing"-a plaintiff's prima facie case is not independent of "the merits." If a court rejects a Batson claim because the claimant has failed to establish the requisite prima facie showing, nobody would dispute that the court has rejected that claim on the merits. See Brown v. Alexander, 543 F.3d 94, 103 (2d Cir. 2008) (applying the framework for claims "adjudicated on the merits in [s]tate court," 28 U.S.C. § 2254(d), to a "decision that a prima facie case had not been made out under Batson"); Franklin v. Sims, 538 F.3d 661, 666 (7th Cir. 2008) (same). And if a court grants summary judgment against a Title VII claim because the plaintiff has failed to discharge his prima facie burden under McDonnell Douglas, nobody would dispute that that claim too has been decided on the merits. See Morón-Barradas v. Dep't of Educ. of P.R., 488 F.3d 472, 478-80 (1st Cir. 2007) (granting preclusive effect to a Puerto Rico court's determination that a Title VII plaintiff had failed to establish a prima facie case of discrimination). In each of these cases, any distinction between "the merits question" and "the prima facie showing alone" collapses when the plaintiff fails at step one. Dissenting Op. of Martin, J., at 70; see also Jackson v. United States, 875 F.3d 1089, 1091 n.4 (11th Cir. 2017) (explaining that the dismissal of a complaint with prejudice for failure to state a claim is ordinarily "an adjudication on the merits").

         So what remains of Judge Martin's critique after we discard the mistaken premise that merits are merits, threshold inquiries are threshold inquiries, and never the twain shall meet? Her dissent objects to eight published orders because they decided that particular offenses were crimes of violence or violent felonies, see Dissenting Op. of Martin, J., at 75-77, but it never explains how it is inconsistent with our gatekeeping function under section 2255(h) to deny applications based on questions of law-which we usually think it is our job to answer-and a routine examination of judicial records-which we must often wade into in any event to determine whether a motion would indeed be "second or successive." See Evans-García v. United States, 744 F.3d 235, 240 (1st Cir. 2014) ("[A] circuit court should deny certification where it is clear as a matter of law, and without the need to consider contested evidence, that the petitioner's identified constitutional rule does not apply to the petitioner's situation."); cf. S-V-, 22 I. & N. Dec. at 1309 (finding no "prima facie eligibility for withholding of removal" based on the Board's discretionary first-instance determination that the movant's robbery conviction was for a "particularly serious crime"). The dissent protests that "the heavily abridged second or successive application procedures" impair our ability to make a reasoned decision, Dissenting Op. of Martin, J., at 76, but it never explains why 30 days is too little time for three judges with the help of their law clerks and staff attorneys to research and decide the discrete legal issue whether a particular offense is or is not a crime of violence, an inquiry with which our Court has plenty of experience. See id. at 61 (observing that "[t]he issue of what constitutes a crime of violence . . . has been the subject of extensive consideration in this Circuit").

         This Court is not the only circuit that has published orders denying prisoners' applications on the ground that Johnson could not benefit them because their predicate offenses were crimes of violence. See In re Irby, 858 F.3d 231 (4th Cir. 2017); Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016). And, as long as we are on the subject of persuasive authority, several of our sister circuits have disagreed with Judge Martin's "permissive[]" notion of how the application process should work in other ways. Dissenting Op. of Martin, J., at 73. For example, five circuits-four not counting ours-have held that the Act permits courts of appeals to deny second or successive collateral challenges based on manifest untimeliness, at least in certain circumstances. See In re Williams, 759 F.3d 66, 68-69 (D.C. Cir. 2014); In re Vassell, 751 F.3d 267, 271 (4th Cir. 2014); In re Lewis, 484 F.3d 793, 798 (5th Cir. 2007); In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006); Outlaw v. Sternes, 233 F.3d 453, 455 (7th Cir. 2000); see also In re Jackson, 826 F.3d 1343, 1350 & n.8 (11th Cir. 2016) (acknowledging that a "hands-off approach" with respect to timeliness "will not suit every application" and reaffirming Hill). The First Circuit has held that it can rely on judicial records to determine that an applicant is outside the scope of a new rule. See Evans-García, 744 F.3d at 240. And the Fifth and Eighth Circuits have held that a second or successive collateral challenge does not "contain" or "rel[y] on" a new rule when it "depends on recognition of a second new rule" that would be an extension of the first. Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir. 2016); accord In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016). Now is not the time to examine whether all of these decisions were correct; lest we forget, the Court today is denying rehearing en banc of a direct appeal. But it is significant that the dissent's minimalist concept of our gatekeeping function would unsettle not just our own practices but also those of many of our sister circuits.

         The dissent complains that "[t]he members of this Court are bound to treat [our published orders] as binding precedent in this Circuit, unless and until the Supreme Court or this Court sitting en banc reverses each of them, one by one," but the same is true of all of our precedents. Dissenting Op. of Martin, J., at 83. Of course, Judge Martin and our other dissenting colleagues are free to disagree with the legal conclusions that panels have reached in the course of denying applications to file second or successive motions. But if they do, they would be better served by trying to persuade the rest of us to reconsider those holdings en banc, see Concurring Op. of Tjoflat, J., at 17-22, than by rehashing their position that we cannot deny the doomed applications of prisoners who cannot achieve relief, compare, e.g., Dissenting Op. of Wilson, J., at 53-57, and Dissenting Op. of Martin, J., at 64-84, with Ovalles v. United States, 905 F.3d 1231, 1266-73 (11th Cir. 2018) (en banc) (Martin, J., dissenting); In re Williams, 898 F.3d 1095, 1100- 05 (11th Cir. 2018) (Wilson, J., specially concurring); id. at 1105-10 (Martin, J., specially concurring); In re Hernandez, 857 F.3d 1162, 1165-66 (11th Cir. 2017) (Martin, J., concurring in result); In re Clayton, 829 F.3d 1254, 1263-67 (11th Cir. 2016) (Martin, J., concurring in result); In re McCall, 826 F.3d 1308, 1311-12 (11th Cir. 2016) (Martin, J., concurring); In re Colon, 826 F.3d 1301, 1308 (11th Cir. 2016) (Martin, J., dissenting); and Saint Fleur, 824 F.3d at 1341-44 (Martin, J., concurring).

         Finally, some of the complaints in Judge Martin's dissent less reflect disagreement with our precedents than dissatisfaction with Congress's policy choices. The dissent laments that the Act gives prisoners only "one chance to collaterally attack their sentence as a matter of right" and that the chance "comes too soon" for some convicts with lengthy sentences, Dissenting Op. of Martin, J., at 64, but the statutory system of alternating limitations periods constitutes an integral part of Congress's orderly regulation of federal postconviction review, see 28 U.S.C. §§ 2244(d), 2255(f). The dissent charges us with abusing our "gatekeeping function" "to lock the gate and throw away the key," Dissenting Op. of Martin, J., at 84, but we have done no more than to execute our gatekeeping function under the Act as we have understood it at least ever since we held in Holladay that not every application that incants a new rule opens the lock. The dissent protests that "prisoners sentenced in Alabama, Florida and Georgia may be serving illegal sentences for which they have no remedy," id., but Congress has emphatically rejected an error-correction-at-all-costs model of postconviction review.

         Instead, Congress has decided that collateral litigation, like all things, must eventually come to an end. And we are bound to respect that mandate.

          JORDAN, Circuit Judge, concurring in the denial of rehearing en banc.

         The panel in this case has held that published orders issued by three-judge panels on applications for leave to file second or successive habeas corpus petitions or motions to vacate, pursuant to 28 U.S.C. §§ 2244(b)(2)-(3), 2255(h), constitute binding precedent in our circuit. See United States v. St. Hubert, 909 F.3d 335, 345-46 (11th Cir. 2018). I voted against rehearing this case en banc because I cannot think of a workable common-law principle that denies precedential effect to such orders. If there is going to be some change in the effect given to these orders, I believe that will need to be done by way of a court rule (e.g., a rule providing [as we have done with unpublished opinions] that such orders do not have precedential effect, or a rule providing that such orders will only be binding in the second or successive application context, or a rule providing that such orders can be published only when there has been adversarial briefing).[1]

         Nevertheless, I have institutional concerns about our recent practice of publishing so many of these orders. I include myself as part of the problematic trend, as I have authored one of these orders, see In re Moss, 703 F.3d 1301 (11th Cir. 2013), and have also been a member of panels which have issued others.

         Applications under §§ 2244(b)(2)-(3) and 2255(h) are different in significant respects from the matters usually handled by three-judge panels. Those differences strongly suggest that we should exercise more caution in deciding to publish an order disposing of an application, particularly on substantive issues of first impression.

         First, the applications must be decided within 30 days of filing. See § 2244(b)(3)(D). Although this time limit is not mandatory in the jurisdictional sense, see, e.g., In re Davis, 565 F.3d 810, 813 (11th Cir. 2009) (order issued in April of 2009 for an application filed in October of 2008 asserting actual innocence), we try very hard to meet the compressed timeline imposed by Congress. But, practically speaking, we do not have 30 full days to do our work. The panel usually receives the staff attorney memorandum on the application (which is often pro se) a week or two from the date of filing, leaving only two to three weeks to rule on the application (while, of course, tending to numerous other matters, including other applications). This abbreviated schedule, which does not generally exist with respect to the other motions we handle on a daily or weekly basis, can lead to rulings without sufficient time for analysis and reflection. And that, in turn, can result in mistakes.

         Second, in this circuit the applications are almost always ruled upon without adversarial participation or briefing. Sometimes we decide only on the basis of a pro se litigant's submission, as supplemented by a staff attorney memorandum. In a system like ours, that means that we may miss something important (e.g., critical parts of the district court record, or an issue we did not think of ourselves) on the quick road to decision and publication.

         Third, the applications result in decisions that are not generally reviewable. Pursuant to § 2244(b)(3)(E), orders on applications are not appealable and cannot be the subject of a petition for rehearing or for a writ of certiorari. Panels have on occasion revisited their orders sua sponte (for example, when the staff attorney's office has called a panel's attention to a mistake), but relying on a panel to identify and recognize its own error without assistance from the parties once the application is adjudicated is certainly not the norm in appellate procedure. I recognize that it is an open question whether an order disposing of an application can be the subject of a sua sponte en banc proceeding. But even if that limited avenue exists, the absence of typical channels of review provides an additional institutional reason to publish fewer of these now-binding orders.

         In sum, when we review and rule on applications pursuant to §§ 2244(b) and 2255(h), "major aspects of the normal appellate process [are] absent." United States v. Glover, 731 F.2d 41, 49 (D.C. Cir. 1984) (Mikva, J., dissenting about then-existing summary affirmance procedures). "There are no briefs, no oral arguments, [and] no collegiality of the decisional process. There is no time for deliberation, and very little dialogue on the merits, on the process, or the result." Id. at 50. We are stuck with the 30-day limit that Congress has set for us, but that deadline should mean less published orders, not more.

         In the last five years (2013-18) we lead the country by a significant margin in the number of published orders issued under §§ 2244(b)(2)-(3) and 2255(h). In that five-year period, ending April 1, 2018, we have published 45 such orders, while all of the other circuits combined have published 80 orders. The next closest circuits to ours in publication are the Fifth Circuit with 14 and the Sixth Circuit with 12. The remaining circuits have fewer than 10 each: First Circuit (7); Second Circuit (6); Third Circuit (3); Fourth Circuit (6); Seventh Circuit (8); Eighth Circuit (9); Ninth Circuit (7); Tenth Circuit (7); and D.C. Circuit (1). And a number of the published orders in the other circuits were issued only after adversarial briefing and/or oral argument.[2]

         Two years ago, in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), we received around 2, 000 applications under §§ 2244(b)(2)-(3) and 2255(h) (mostly filed by federal prisoners under § 2255(h)). Given this avalanche of filings, and the 30-day clock, there were days when I (and probably every judge then on the court) would review 40-50 applications and have time for little else. Yet, despite the overwhelming number of applications we received, and the very limited time we had to resolve them, in 2016 we managed to publish 35 of our orders. In that same year, our sister circuits published a total of just 20 orders: First Circuit (0); Second Circuit (0); Third Circuit (0); Fourth Circuit (3); Fifth Circuit (4); Sixth Circuit (3); Seventh Circuit (4); Eighth Circuit (3); Ninth Circuit (1); Tenth Circuit (2); and D.C. Circuit (0). If the other circuits can get by without adding to the pages in the Federal Reporter, we should be able to as well.

         Publishing orders issued under §§ 2244(b)(2)-(3) and 2255(h) sometimes makes sense. For example, in In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir. 2003), we explained what a "prima facie case" means under § 2244(b). Given that the "prima facie case" requirement applies to all applications filed, it was important to have a general governing standard for all panels to apply.

         But there are downsides to publishing too many of these orders, which now constitute binding precedent. I hope that in the coming years we will use the publication option sparingly.

         Appendix of Published Orders under 28 U.S.C. §§ 2244(b) & 2255(h) in the Circuit Courts of Appeals from April 1, 2013, to April 1, 2018

         First Circuit

         Pagan-San Miguel v. United States, 736 F.3d 44 (1st Cir. 2013)

         Evans-Garcia v. United States, 744 F.3d 235 (1st Cir. 2014)

         Butterworth v. United States, 775 F.3d 459 (1st Cir. 2015)

         Pakala v. United States, 804 F.3d 139 (1st Cir. 2015)

         Bucci v. United States, 809 F.3d 23 (1st Cir. 2015)

         Moore v. United States, 871 F.3d 72 (1st Cir. 2017)

         Hardy v. United States, 871 F.3d 85 (1st Cir. 2017)

         Second ...


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