Curtis Solomon v. United States (11th Cir. January 2019)
28 U.S.C. § 2255 – District court properly denied § 2255 motion based on the residual clause of § 924(c) since it was not based on a “new rule of constitutional law” in light of the Court’s holding in Ovalles II that the residual clause of § 924(c) was not unconstitutional.
Solomon was convicted by a jury in 2008 on multiple conspiracy and substantive counts of Hobbs Act robbery and corresponding counts for using and carrying a firearm during and in relation to those robberies under § 924(c). Soloman’s first § 2255 motion was denied by the district court in 2013.
In 2016, Solomon filed an application for leave to file a successive § 2255 motion, challenging his § 924 convictions in light of the Supreme Court’s decision in Johnson, which struck down the residual clause of the ACCA. The Court denied Solomon’s application as to his convictions on the substantive § 924(c) counts but granted the motion as it corresponded to the conspiracy convictions in order to determine whether they were based on the residual clause of § 924(c).
In July 2017, the district court denied Solomon’s second § 2255 motion, holding that Solomon’s motion was not based on newly discovered evidence or a “new rule of constitutional law” since the Court held in Ovalles I that the residual clause of § 924(c) was not unconstitutional.
On appeal, the Court affirmed the district court’s denial, citing this time to Ovalles II. The Court also reiterated its holding in In re: Garrett that Solomon could not challenge the application of the residual clause to his offense since Ovalles II announced a new rule of statutory law, not a “new rule of constitutional law.”
Appeal from the Southern District of Florida
Per Curiam Opinion by W. Pryor, Grant, and Hull