In re Robinson

822 F.3d 1196, 2016 U.S. App. LEXIS 7091, 2016 WL 1583616

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 19, 2016
• Docket: No. 16-11304-D
• Status: Published

Opinions

ORDER

Troy Robinson seeks authorization to file a second or successive 28 U.S.C. § 2255 motion. We can authorize such a filing only if we certify that the second or successive motion is based on “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)(2). Robinson was sentenced using the Armed Career Criminal Act (ACCA), which requires a minimum 15-year sentence when a defendant with three “violent felony” or “serious drug offense” convictions commits certain firearms offenses. 18 U.S.C. § 924(e). ACCA gives three definitions of “violent felony.” First, § 924(e)(2)(B)(i) covers any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” This is known as the “elements clause.” Second, § 924(e)(2)(B)(ii) covers any offense that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The first 9 words of that subsection are called the “enumerated crimes clause,” and the last 13 are called the “residual clause.”

Robinson’s application is based on Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that ACCA’s “residual clause” is unconstitutional. This Court held months ago that Johnson cannot serve as the basis for a second or successive § 2255 motion because the Supreme Court did not “make” Johnson retroactive. See In re Franks, 815 F.3d 1281 (11th Cir.2016). The Supreme Court has held that the rule announced in Johnson is retroactive because it is a substantive rule of constitutional law. See Welch v. United States, No. 15-6418, — U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387, 2016 WL 1551144 (Apr. 18, 2016). This means Franks is no longer good law.

However, even without Franks, the rule announced in Johnson does not benefit Robinson. Robinson’s ACCA sentence was based on convictions for two serious drug offenses, as well as convictions for armed robbery and for aggravated battery with a firearm. All these convictions were for Florida offenses. Even if the armed robbery offense doesn’t count under the residual clause because of Johnson, it appears to contain “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)®; see United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir.2011). So does the aggravated battery with a firearm offense. See United States v. Hill, 799 F.3d 1318, 1321-22 & n. 1 (11th Cir.2015) (per curiam); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1341 (11th Cir.2013) (per cu-riam). Neither Johnson nor any other case suggests that Robinson’s armed robbery and aggravated battery offenses don’t count as ACCA predicates under the “elements clause.” Indeed our precedent says otherwise. This means Robinson’s sentence is valid even without ACCA’s “residual clause.”

APPLICATION DENIED.