IN RE: WISSAM T. HAMMOUD, Petitioner.
for Leave to File a Second or Successive Motion to Vacate,
Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)
Before: WILLIAM PRYOR, JORDAN and HULL, Circuit Judges.
to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Wissam
T. Hammoud has filed an application seeking an order
authorizing the district court to consider a second or
successive motion to vacate, set aside, or correct his
federal sentence, 28 U.S.C. § 2255. Such authorization
may be granted only if this Court certifies that the second
or successive motion contains a claim involving one of the
following two circumstances:
(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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). "The court of appeals may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of this subsection." Id. § 2244(b)(3)(C);
see also Jordan v. Sec'y, Dep't of Corrs.,
485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this
Court's determination that an applicant has made a
prima facie showing that the statutory criteria have
been met is simply a threshold determination).
2004, Hammoud was charged by a federal grand jury with
various crimes in a 13-count superseding indictment. In 2005,
pursuant to a written plea agreement, Hammoud pleaded guilty
to these four counts: (1) retaliating against a witness, in
violation of 18 U.S.C. § 1513 (Count 1); (2)
solicitation to commit murder, in violation of 18 U.S.C.
§ 373 (Count 3); (3) use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count 5);
and (4) possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g) (Count 13). As to the
§ 924(c) firearm charge in Count 5, the plea agreement
specified that Hammoud possessed a firearm during the
solicitation crime charged in Count 3. The district court
dismissed the remaining nine counts and sentenced Hammoud to
a total imprisonment term of 240 months, consisting of (1)
concurrent 180-month sentences as to Counts 1 (retaliation)
and 3 (solicitation); (2) a concurrent 120-month sentence as
to Count 13 (felon in possession); and (3) a consecutive
60-month sentence as to Count 5 (the § 924(c) offense).
2006, Hammoud filed a direct appeal challenging his guilty
pleas as to Counts 1 and 13 and his total sentence. See
United States v. Hammoud, 229 Fed.Appx. 869, 871 (11th
Cir. 2007). On appeal, this Court affirmed Hammoud's
convictions and dismissed his sentencing claim based on the
sentence appeal waiver provision in his plea agreement.
Id. at 877. In 2008, Hammoud filed his original
§ 2255 motion to vacate, set aside, or correct his
sentence raising a single ineffective assistance of trial
counsel claim, which the district court denied on the merits.
2018, Hammoud filed an application for leave to file a second
or successive § 2255 motion with this Court, arguing,
among other things, that § 924(c)(3)(B) was
unconstitutional, in light of the new rule of constitutional
law announced in Johnson v. United States, 576
U.S.___, 135 S.Ct. 2551 (2015), and Sessions v.
Dimaya, 584 U.S. ___, 138 S.Ct. 1204 (2018), which held,
respectively, that the residual clauses in the Armed Career
Criminal Act ("ACCA") and 18 U.S.C. § 16(b)
were unconstitutionally vague. We denied Hammoud's 2018
application on the merits because, under our then-binding
precedent in Ovalles v. United States ("Ovalles
II"), 905 F.3d 1231, 1253 (11th Cir. 2018) (en
banc), abrogated by United States v. Davis, 588 U.S.
___, 139 S.Ct. 2319 (2019), and In re Garrett, 908
F.3d 686, 689 (11th Cir. 2018), abrogated in part by
Davis, 588 U.S. ___, 139 S.Ct. 2319, neither
Johnson nor Dimaya could support a
vagueness-based challenge to § 924(c)(3)(B).
present application, Hammoud contends that his § 924(c)
conviction in Count 5 is no longer constitutionally valid.
Specifically, Hammoud asserts that § 924(c)(3)(B)'s
residual clause is unconstitutional, in light of the new rule
of constitutional law set forth in Davis,
Dimaya, and Johnson, and that his companion
solicitation conviction in Count 3 could have qualified as a
"crime of violence" only under § 924(c)'s
now-defunct residual clause.
determine whether Hammoud's proposed Davis claim
meets the statutory criteria, we must first address three
preliminary issues: (1) whether Davis announced a
new rule of constitutional law; (2) if so, whether
Davis has been made retroactively applicable to
cases on collateral review by the Supreme Court; and (3)
whether Hammoud's Davis claim is barred under
our precedent in In re Baptiste, 828 ...