In re: Tracy Garrett (11th Cir. November 2018)

The Federal Docket

December 3, 2018

Section 2255 – Neither the Court’s en banc decision in Ovalles nor the Supreme Court’s decisions in Johnson and Dimaya provide federal prisoners seeking leave to file successive § 2255 motions a “new rule of constitutional law” through which to challenge their convictions under § 924(c).

In his thirteenth application for leave to file a successive motion under 28 U.S.C. § 2255, Tracy Garrett asserted that his sentence for carrying a firearm during a “crime of violence” under § 924(c) was unconstitutional. Under § 2255(h), a defendant may file a successive § 2255 motion if it is based on a “new rule of constitutional law, made retroactive on cases to collateral review to the Supreme Court, that was previously unavailable.”

Citing Johnson and Dimaya, in which the Supreme Court struck down catch-all definitions of “crime of violence,” Garrett argued that the definition of “crime of violence” under § 924(c) was similarly void-for-vagueness. Accordingly, he contended that his application met the standard under § 2255(h) because it contained a retroactive “new rule of constitutional law.”

The Eleventh Circuit rejected his argument, reiterating its en banc holding in Ovalles v. United States that “crime of violence” under § 924(c) is not unconstitutionally vague, since determining whether an underlying offense is a “crime of violence” can be done under a factual, “conduct-based approach.”

The Court conceded, however, that Garrett had been sentenced under the “categorical approach” to qualifying a “crime of violence” under § 924(c), as his sentencing had occurred before the “conduct-based approach” was announced in Ovalles. Nonetheless, Ovalles’s “conduct-based approach” was not a new rule of constitutional law, but rather a statutory one, and, as the Court observed, “the substation of one interpretation of a statute for another never amounts to ‘a new rule of constitutional law.’”

Application for Leave to File Second or Successive Motion under § 2255

Opinion by W. Pryor, joined by Hull and J. Carnes

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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