MANN v. UNITED STATES (2019)

United States Court of Appeals, Eleventh Circuit.

Gerard MANN, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 17-13129

Decided: August 30, 2019

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

Andrew L. Adler, Jan Christopher Smith, II, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Petitioner-Appellee Daniel Matzkin, Emily M. Smachetti, U.S. Attorney Service - SFL, Miami, FL, Sivashree Sundaram, U.S. Attorney's Office, Fort Lauderdale, FL, for Respondent-Appellant

The Supreme Court granted Gerard Mann’s petition for writ of certiorari, vacated our October 26, 2018 opinion, and remanded Mann’s case for further consideration in light of United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 2324, 2326, 204 L.Ed.2d 757 (2019). We VACATE and REMAND the district court’s decision with instructions to allow Mann to amend his 28 U.S.C. § 2255 motion to assert a claim based on the new, retroactive rule announced in Davis. See Fed. R. Civ. P. 15; Rules Governing § 2254 Cases, R. 12 (stating that the Federal Rules of Civil Procedure may be applied to the extent they are not inconsistent with any statutory provisions or the rules therein); see also In re Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 2019) (holding that Davis announced a new rule of constitutional law retroactively applicable to cases on collateral review by the Supreme Court).

PER CURIAM:

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