Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Pollard

United States Court of Appeals, Eleventh Circuit

July 31, 2019

IN RE: DREW JAMAL POLLARD, Petitioner.

          Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

          Before: ED CARNES, Chief Judge, TJOFLAT, and ROSENBAUM, Circuit Judges.

         BY THE PANEL

Drew Jamal Pollard 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. See 28 U.S.C. §§ 2255(h), 2244(b)(3)(A).

I. BACKGROUND

         In 2009, Pollard pleaded guilty to committing armed robbery of a credit union in violation of 18 U.S.C. § 2113(a) and (d), and carrying, using, and brandishing a firearm during a crime of violence (the armed robbery of the credit union) in violation of 18 U.S.C. § 924(c)(1)(A) and (B)(i). The district court sentenced him to 180 months in prison and 5 years of supervised release. Pollard did not appeal.

         Since his conviction and sentence became final, Pollard has filed two 28 U.S.C. § 2255 motions challenging his § 924(c) conviction and sentence. In his first § 2255 motion, Pollard claimed that he was actually innocent because he did not use or brandish a firearm while robbing the credit union, and that his counsel was ineffective for advising him to plead guilty to that crime despite his innocence. The district court dismissed that motion as untimely, and both the district court and this Court denied Pollard a certificate of appealability. See Pollard v. United States, No. 13-15114 (11th Cir. May 8, 2014). In his second § 2255 motion, Pollard claimed that his conviction and sentence were unconstitutional in light of the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The district court found that motion to be untimely as well and concluded that it was also without merit. Again, both the district court and this Court denied Pollard a certificate of appealability. See Pollard v. United States, No. 18-12948 (11th Cir. Jan. 9, 2019).

         Pollard now asks this Court for permission to file a third § 2255 motion, contending that his § 924(c) conviction and sentence are unconstitutional in light of the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019).

         II. DISCUSSION

         This Court may only grant an application to file a second or successive § 2255 motion if the motion contains a claim involving:

(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.

28 U.S.C. § 2255(h). We may "authorize the filing of a second or successive application only if [we] determine[] that the application makes a prima facie showing that the application satisfies the requirements" of § 2255(h). Id. § 2244(b)(3)(C).

         When an applicant contends that his motion contains a claim involving a new rule of constitutional law for purposes of § 2255(h)(2), the prima facie showing that he must make is twofold. He not only has to show that the decision he is relying on announced a new rule of constitutional law, that the rule has been made retroactive by the Supreme Court, and that it was previously unavailable; he must also show that there is a "reasonable likelihood" that he will benefit from the rule. See In re Hires, 825 F.3d 1297, 1299 (11th Cir. 2016) ("When a petitioner seeks leave to pursue a successive § 2255 motion under § 2255(h)(2), we have held that a petitioner must demonstrate a 'reasonable likelihood' that they will benefit from a new, retroactive, and previously unavailable constitutional rule in order to make a prima facie showing that their application satisfies the requirements of ยงยง 2244(b) and 2255(h)."). Otherwise, "any prisoner ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.