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United States Court of Appeals,Eleventh Circuit.

Courtney MAYS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.

No. 14–13477.

Decided: March 29, 2016

Before WILSON, JORDAN and JILL PRYOR, Circuit Judges. Kevin L. Butler, Allison Case, Federal Public Defender, Birmingham, AL, Deanna Lee Oswald, Federal Public Defender–NAL, Huntsville, AL, for Petitioner–Appellant. Ramona Albin, Enid Dean Athanas, Michael B. Billingsley, Joyce White Vance, U.S. Attorney's Office, Birmingham, AL, for Respondent–Appellee.

Courtney Mays appeals the district court's denial of his first and only 28 U.S.C. § 2255 motion to vacate his sentence. Mays was convicted of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was then sentenced pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act (ACCA). Relying on Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Mays asserts his sentence under § 924(e)(1) is illegal. Specifically, he argues that, in light of Descamps and Johnson, he does not have the number of qualifying prior convictions required to trigger a § 924(e)(1) sentence and, therefore, his sentence under the section is unlawful. We agree and find that Mays's sentence is illegal. Although Descamps and Johnson were decided after Mays's conviction and sentence became final, we hold that both cases apply retroactively in the first post-conviction context. Accordingly, we reverse the district court's denial of Mays's motion and remand for resentencing.


To provide the legal context for Mays's appeal, we begin with a brief discussion of Descamps, Johnson, and the relevant portions of § 924(e). Under § 924(e)(1), “a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense is subject to additional fines and a fifteen-year minimum sentence (and has an enhanced guidelines sentence under U.S.S.G. § 4B1.4).”1 United States v. Petite, 703 F.3d 1290, 1293 (11th Cir.2013) (internal quotation marks omitted); see also 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion [or] involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These three “clauses” are known as the “elements clause,” the “enumerated clause,” and the “residual clause,” respectively.

The Court in Descamps addressed our approach to determining whether a crime constitutes a violent felony under the enumerated clause. The enumerated clause only includes prior convictions for “generic” versions of the offenses it lists. See Descamps, 133 S.Ct. at 2281. There are two approaches for determining whether an offense is generic: the “categorical approach” and the “modified categorical approach.” See id. Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the generic crime.” Id. (internal quotation marks omitted). “The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. In contrast, under the modified categorical approach, we may look beyond the statutory elements of the prior conviction and consider a “limited class of documents, such as indictments and jury instructions,” to determine whether the conviction was for a generic offense. See id. In Descamps, the Supreme Court held that this analysis can only be performed if the statute in question is “divisible,” meaning that it “sets out one or more elements of the offense in the alternative.” See id. at 2281–82.

In Johnson, the Supreme Court considered a constitutional challenge to the residual cause and determined that the clause is unconstitutionally vague. Johnson, 135 S.Ct. at 2557. As such, a defendant cannot be sentenced pursuant to § 924(e)(1) unless he has at least three prior convictions that each meet the criteria of either the elements clause or the enumerated clause. See id. at 2563.


Mays was sentenced to two concurrent terms of 15 years' imprisonment pursuant to § 924(e)(1). The sentencing court imposed a § 924(e)(1) sentence based on two prior convictions for possession of marijuana for other than personal use under Alabama Code § 13A–12–213(a)(1) and one prior conviction for third degree burglary under Alabama Code § 13A–7–7. The marijuana convictions were found to be serious drug offenses and the burglary conviction was determined to be a violent felony.

In July 2012, Mays filed a pro se § 2255 motion for habeas relief, arguing that he received ineffective assistance of counsel during his direct appeal. Soon thereafter, the Supreme Court decided Descamps. In August 2013, Mays filed a notice with the district court alleging he was wrongfully sentenced pursuant to § 924(e)(1). Specifically, he asserted that, under Descamps, his burglary conviction was not a violent felony. He also generally claimed that his sentence is illegal because he does not have at least three prior qualifying convictions under § 924(e)(1).2 The Government responded that Mays was procedurally barred from making such an argument by § 2255's period of limitations. See 28 U.S.C. § 2255(f)(3). The Government also argued that Mays's burglary conviction is a violent felony under the residual clause and, therefore, Descamps—which had no effect on the residual clause—did not render Mays's sentence illegal.

The district court accepted the Government's period of limitations defense and dismissed Mays's challenge to his sentence as time-barred. The court also denied Mays's ineffective assistance of counsel claim. This court granted a certificate of appealability (COA) on three issues: (1) whether the district court erred by denying Mays's ineffective assistance of counsel claim; (2) whether the district court erred in dismissing Mays's claim that his sentence is illegal under Descamps; and (3) whether the district court abused its discretion by denying Mays's motion to reconsider.

Mays was appointed counsel prior to filing his brief on appeal. A few months after Mays submitted his brief, the Supreme Court decided Johnson, which prompted him to file a notice of supplemental authority. In the notice, Mays stated, inter alia, that Johnson disposed of the Government's argument that his burglary conviction is a violent felony under the residual clause. Following this notice, the Government and Mays submitted a joint motion for resentencing. In the motion, the Government agreed to withdraw its period of limitations defense against Mays's challenge to his sentence, and Mays agreed to dismiss his ineffective assistance of counsel claim. The Government also conceded that, in light of Johnson, it believes Mays's sentence under § 924(e)(1) is unlawful.

After receiving Mays's notice of supplemental authority and the parties' joint motion for resentencing, we requested supplemental briefing on several issues related to Johnson 's application to this case. In its responding supplemental briefing, the Government stated that it is waiving non-retroactivity as a defense to Mays's Descamps and Johnson arguments. The Government also reiterated its withdrawal of its period of limitations defense to Mays's challenge to his sentence.


The dispositive issue before us is whether Mays's § 924(e)(1) sentence is unlawful. This issue turns on two questions of law: whether (1) Descamps and (2) Johnson apply retroactively to Mays despite being decided after his conviction and sentence became final. If both Descamps and Johnson apply retroactively to Mays—a first time habeas petitioner—then his burglary conviction is not a qualifying conviction under § 924(e)(1), and his sentence is illegal because he does not have at least three qualifying convictions. Accordingly, in considering the legality of Mays's sentence, we focus our analysis on resolving these Descamps and Johnson “retroactivity” questions. However, we first briefly discuss a threshold procedural issue: the scope of the COA.

A. Scope of the COA

All three issues included in the COA are now moot. Mays has withdrawn his ineffective assistance of counsel claim, thereby mooting the first COA issue. Furthermore, the “time-barred” issue that the district court relied on in denying Mays's challenge to his sentence is moot because the Government has waived its period of limitations defense. See Bryant v. Warden, FCC Coleman–Medium, 738 F.3d 1253, 1261 (11th Cir.2013) (“[T]he procedural-default rule is not jurisdictional [in the post-conviction context], but is an affirmative defense that is subject to waiver by the government.”). Therefore, the second and third COA issues are also moot. Nonetheless, as noted above, the core issue raised by Mays before the district court—whether his sentence is legal—remains. Given this issue is not included in the COA, we must consider whether the circumstances warrant expanding the COA to include it.

We find that expansion of the COA is clearly warranted. “On exceptional occasions,” we may expand a COA sua sponte to include issues that “reasonable jurists would find ․ debatable.” See Dell v. United States, 710 F.3d 1267, 1272–73 (11th Cir.2013); Thomas v. Crosby, 371 F.3d 782, 796 (11th Cir.2014) (“[O]ur cases establish the power of our court to add issues to a COA sua sponte.”); Hodges v. Att'y Gen., 506 F.3d 1337, 1341–42 (11th Cir.2007). “Exceptional occasions” include cases where we request supplemental briefing on issues not included in the COA. See Dell, 710 F.3d at 1272–73. Here, we requested supplemental briefing on issues related to the legality of Mays's sentence. In addition, as made apparent by the Government conceding that it believes Mays's sentence is illegal, this issue is one “that reasonable jurists would find ․ debatable.” See id. at 1273. Lastly, if we did not expand the COA, remand to the district court would be necessary. But, whether Mays's sentence is illegal involves purely legal questions that would not benefit from remand. See Reed v. Beto, 343 F.2d 723, 725 (5th Cir.1965) ( “Passing then to the merits of this argument, in view of its being a pure question of law, we see no need to remand it for a determination by the District Court.”).3

B. Legality of Mays's Sentence

Mays's challenge to his sentence turns on whether his Alabama Code § 13A–7–7 conviction for third degree burglary is a violent felony.4 We review de novo whether that burglary conviction qualifies as a violent felony. See United States v. Howard, 742 F.3d 1334, 1341 (11th Cir.2014). The only ACCA clauses that could apply to the conviction are the enumerated and residual clauses.5 However, we conclude that, in light of Descamps and Johnson, neither clause applies to Mays.

1. Enumerated Clause

At the time Mays was sentenced, an Alabama Code § 13A–7–7 third degree burglary conviction could qualify as a violent felony under the enumerated clause. See United States v. Rainer, 616 F.3d 1212, 1213, 1216 (11th Cir.2010). Post–Descamps, this is no longer the case. Based on Descamps, we held in Howard that a conviction for third degree burglary cannot qualify as a violent felony under the enumerated clause because Alabama Code § 13A–7–7 is an indivisible, non-generic statute. Howard, 742 F.3d at 1348–49. Thus, if Mays was sentenced today, the enumerated clause would not apply to his burglary conviction. But, given that Mays's conviction and sentence became final prior to Descamps, our analysis does not end here. We must consider whether Descamps and Howard apply retroactively to Mays. This requires us to analyze Descamps through the “retroactivity” framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and related Supreme Court cases.

In Teague and subsequent cases, the Supreme Court “laid out the framework to be used in determining whether a rule announced in one of [its] opinions should be applied retroactively to judgments in criminal cases that are already final.”6 Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 1180, 167 L.Ed.2d 1 (2007). “Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.” Id. “A new rule is defined as a rule that was not dictated by precedent existing at the time the defendant's conviction became final.” Id. at 416, 127 S.Ct. at 1181 (internal quotation marks omitted). As the Supreme Court and other circuits have recognized, Descamps did not announce a new rule—its holding merely clarified existing precedent. See Descamps, 133 S.Ct. at 2283 (“Our caselaw explaining the categorical approach and its ‘modified’ counterpart all but resolves this case.”); id. at 2285 (“That is the job, as we have always understood it, of the modified approach ․” (emphasis added)); Ezell v. United States, 778 F.3d 762, 763 (9th Cir.2015) (“We hold that the Supreme Court did not announce a new rule of constitutional law in Decamps. Rather, it clarified—as a matter of statutory interpretation—application of the ACCA in light of existing precedent.”), cert. denied, ––– U.S. ––––, 136 S.Ct. 256, 193 L.Ed.2d 212 (2015); United States v. Davis, 751 F.3d 769, 775 (6th Cir.2014) (“The Supreme Court in Descamps explained that it was not announcing a new rule, but was simply reaffirming” an existing approach.).

Given Descamps did not announce a new rule, it and Howard apply here. See Whorton, 549 U.S. at 416, 127 S.Ct. at 1180. Under Descamps and Howard, third degree burglary convictions in Alabama cannot qualify as violent felonies under the enumerated clause. Accordingly, the enumerated clause does not apply to Mays's burglary conviction.

2. Residual Clause

Although we conclude that the enumerated clause does not apply, Mays's sentence could still be upheld if the residual clause is applicable. It is clear that the residual clause is unconstitutional under Johnson, but Johnson was also decided after Mays's conviction and sentence became final. Thus, as with Descamps, the dispositive “residual clause” question before us is whether Johnson applies retroactively in the present context.7 This means we must again turn to Teague.8

As noted above, under Teague, new rules are not typically applicable to cases on collateral review. Whorton, 549 U.S. at 416, 127 S.Ct. at 1180. However, the Supreme Court has established a general principle that new substantive rules and watershed rules of criminal procedure are not subject to this retroactivity bar. See Montgomery v. Louisiana, 577 U.S. ––––, ––––, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016); Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004); Teague, 489 U.S. at 307–09, 109 S.Ct. at 1073–74. New substantive rules include, for example, “decisions that narrow the scope of a criminal statute by interpreting its terms” and “constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.”9 See Schriro, 542 U.S. at 351–52, 124 S.Ct. at 2522. “Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Id. at 352, 124 S.Ct. at 2522–23 (internal quotation marks omitted). Under this framework, a new rule applies retroactively if: (1) the Supreme Court holds the rule is not subject to the Teague retroactivity bar; or (2) the Teague principles of retroactivity established by the Court, such as those outlined above, provide for retroactive application of the rule. See Tyler v. Cain, 533 U.S. 656, 663–66, 121 S.Ct. 2478, 2482–84, 150 L.Ed.2d 632 (2001); Bryant, 738 F.3d at 1277–78 (finding a new rule retroactive based on the Teague principles of retroactivity but noting that, in the § 2255(h) context, only the Supreme Court can find a rule retroactive).

In In re Rivero, we held that Johnson established a new substantive rule. 797 F.3d 986, 989 (11th Cir.2015). Specifically, we found that Johnson “narrowed the class of people who are eligible for an increased sentence under the” ACCA. Id. In that case, we considered a federal prisoner's application to file a second or successive habeas petition. Such an application may only be granted if it involves newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”10 28 U.S.C. § 2255(h) (emphasis added). The prisoner in Rivero claimed Johnson satisfied the “new rule of constitutional law” requirement.

A new rule is only made retroactive by the Supreme Court if the Court explicitly holds that the rule applies retroactively or such a holding results by “logical necessity” from multiple Court opinions. Tyler, 533 U.S. at 668–70, 121 S.Ct. at 2485–86. “The Supreme Court does not make a rule retroactive when it merely establishes principles of retroactivity[, such as the Teague principles,] and leaves the application of those principles to lower courts.” See id. at 663, 121 S.Ct. at 2482 (internal quotation marks omitted). In Rivero, we concluded that the Supreme Court has not explicitly held Johnson to be retroactive and “[n]o combination of holdings of the Supreme Court ‘necessarily dictate’ that Johnson should be applied retroactively on collateral review.” 797 F.3d at 989. Accordingly, we rejected the prisoner's argument that Johnson was “made retroactive ․ by the Supreme Court,” and we found that the prisoner failed to satisfy § 2255(h). See id. (internal quotation marks omitted).

In contrast to Rivero, we are presented here with a prisoner's first habeas petition, not an application for a second or successive petition. As such, § 2255(h) and its “made retroactive ․ by the Supreme Court” requirement are not applicable. This means we must engage in a broader retroactivity analysis than we did in Rivero. In other words, Rivero is not controlling here. As noted above, the retroactivity analysis demanded by 28 U.S.C. § 2255(h) is narrow—it is limited to whether the Supreme Court has explicitly, or by logical necessity, made a rule retroactive. See Bryant, 738 F.3d at 1278 (stating that the Supreme Court's general retroactivity jurisprudence “is quite different from the stricter, statutory retroactivity requirements in 28 U.S.C. § 2255(h)”). Given that “the Supreme Court does not make a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts,” a § 2255(h) analysis does not address such principles. See Tyler, 533 U.S. at 663, 121 S.Ct. at 2482 (emphasis added); Bryant, 738 F.3d at 1278. However, we may not ignore Supreme Court precedent regarding principles of retroactivity, such as the Teague principles, when § 2255(h) is not implicated.

Applying the Teague principles, Johnson is retroactive because it qualifies as a substantive rule.11 First, we have already found that Johnson is a new substantive rule since it narrows the class of people that may be eligible for a heightened sentence under the ACCA. See Rivero, 797 F.3d at 989. Second, “a significant risk exists that some defendants ․ who were sentenced before [Johnson ] have erroneously received the increased penalties under § 924(e) and now are serving prison terms ․ that the law cannot impose upon them.” See Bryant, 738 F.3d at 1278 (citing Schriro, 542 U.S. at 352, 124 S.Ct. at 2522–23) (internal quotation marks omitted). This case is demonstrative. Mays does not simply face a significant risk of unlawful punishment in light of Johnson. Unlawful punishment is guaranteed. Johnson “eliminated [the] State's power to ․ impose [the very] punishment” that Mays currently faces—a prison term based on the residual clause. See Montgomery, 136 S.Ct. at 729–30 (discussing the scope of and rationale underlying the Teague substantive rule principle). Finally, Rivero supports a finding that Johnson applies retroactively under the Teague principles. Referencing Schriro 's conclusion that, under Teague, “new substantive rules generally apply retroactively on collateral review,” Rivero stated that Johnson would apply retroactively to a prisoner “seeking a first collateral review of his sentence.” See Rivero, 797 F.3d at 991. Therefore, we hold that Johnson applies retroactively on collateral review to prisoners seeking habeas relief for the first time.

In light of our finding that Johnson applies retroactively to prisoners, like Mays, who are challenging their § 924(e)(1) sentence via an initial habeas petition, we conclude that Mays's burglary conviction cannot be considered a violent felony under the residual clause.

* * *

In sum, neither the enumerated clause nor the residual clause applies to Mays's burglary conviction. The conviction is, therefore, not a violent felony, and Mays has, at most, two qualifying prior convictions under § 924(e)(1). As a result, Mays's sentence is illegal.12


We reverse the district court's denial of Mays's § 2255 motion to vacate and remand this case to district court for resentencing, without the § 924(e)(1) enhancement. In resentencing Mays, the district court shall perform a fresh review of the 18 U.S.C. § 3553(a) factors. See United States v. Estrada, 777 F.3d 1318, 1323 (11th Cir.2015) (per curiam) (ordering that, on remand for resentencing, “the district court shall consider all appropriate 18 U.S.C. § 3553(a) factors in determining a reasonable sentence”).


We have held that Johnson v. United States, ––– U.S. ––––, ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015)—which ruled that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), is unconstitutionally vague—“announced a new substantive rule of constitutional law.” In re Rivero, 786 F.3d 986, 988 (11th Cir.2015) (denying application for leave to file a second or successive motion to vacate because the Supreme Court had not made Johnson retroactive to cases on collateral review). Under Montgomery v. Louisiana, ––– U.S. ––––, ––––, 136 S.Ct. 718, 729, 193 L.Ed.2d 599 (2016), which the Supreme Court decided after Rivero, “when a new [substantive] rule of constitutional law controls the outcome of a case, the Constitution requires” that rule to be given retroactive effect on collateral review.

The combination of Rivero and Montgomery makes Johnson retroactive and applicable to cases on initial collateral review. Whether or not Montgomery also calls into question the retroactivity holding of Rivero itself (as to applications to file a second or successive motion to vacate based on Johnson ) is a matter left for another day. I note also that Montgomery, which held that Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), announced a new substantive rule of constitutional law which had to be given retroactive effect on collateral review, abrogates our contrary decision (and much of the retroactivity analysis) in In re Morgan, 713 F.3d 1365 (11th Cir.2013).

Finally, I recognize that the Johnson issue is being raised for the first time on appeal and that our review is therefore for plain error. That standard of review, however, does not call for a different result here. We have held that, where a sentence exceeds the statutory maximum, plain error exists and needs to be corrected because it affects the defendant's substantial rights as well as the fairness, integrity, and public reputation of the judicial proceedings. See United States v. Sanchez, 586 F.3d 918, 930 (11th Cir.2009) (sentences of life imprisonment, resulting from district court's plain error in treating a defendant's prior Florida drug offenses as “serious drug offenses” under the “three strikes law,” 18 U.S.C. § 3559(c), had to be vacated because they exceeded the statutory maximum terms of 20 years that would have otherwise applied); United States v. Eldick, 393 F.3d 1354, 1354 n. 1 (11th Cir.2004) (“The sentence rendered was plain error because it exceeded the statutory maximum.”).

With these thoughts, I join the court's opinion in full.


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