United States v. Michael St. Hubert (11th Cir. March 2019), EN BANC

The Federal Docket

April 5, 2019

28 U.S.C. § 2255 – Published opinions on federal prisoners’ applications for leave to file successive motions under § 2255 are binding on future panels in direct appeals.

28 U.S.C. § 2255 – Attempts to commit offenses that qualify as “crimes of violence” under the elements clause of the ACCA are themselves “crimes of violence.”

Judge Tjoflat wrote an opinion concurring in the denial of rehearing the case en banc, charging that the dissenting opinions by Wilson and Martin “distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution.” Judge Tjoflat focused on the restrictions Congress imposed on filing successive § 2255 motions and the high volume of applications the Court had to work through in light of Johnson and Welch. Crucially, he noted, “our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions.” He defended the context in which the Court has published orders on applications to file successive § 2255 motions, arguing that these orders produce “sound law.” And even if the Court gets the law wrong, he wrote, the en banc process provides a remedy.

Judge William Pryor also wrote an opinion respecting the denial of a rehearing en banc, defending the “commonsense practice” of denying “doomed collateral challenges.” Judge Pryor’s opinion addressed Judge Martin’s criticism regarding the appropriate standard for adjudicating applications for successive § 2255(h) motions, arguing that the “prima facie showing” required of an applicant necessarily implicates the merits of his or her application and that a “prima facie showing” does not mandate a lesser threshold for § 2255 applicants.

Judge Jordan concurred as well, though he noted that he has “institutional concerns” about the Court’s “recent practice of publishing so many” orders on applications for successive § 2255 motions. Judge Jordan referenced statistics showing that the Eleventh Circuit issues more of these types of published orders than any other circuit. For example, the Court published 80 such orders between 2013 and 2018, with the Fifth and Sixth Circuits coming closest with 14 and 12, respectively, in that time frame. The opinion included an appendix illustrating the number of opinions published by each Circuit. Judge Jordan noted that he would be cognizant of the problem going forward and hoped that the Court would revisit its practice.

Judge Wilson wrote a dissenting opinion focusing on the institutional concerns he had for the Court reaffirming its rule giving binding precedential authority to panel orders on applications to file successive § 2255 motions. He reiterated that the successive § 2255 context was ill-suited to produce published opinions and case law. He explained that the applications are ruled on within 30 days, on an emergency basis, and that the applications are generally written by pro se prisoner defendants. Judge Wilson also took issue with Judge Tjoflat’s “sweeping charge” that the dissents were “attacks on the integrity of the court as an institution.”

Judge Jill Pryor wrote a dissenting opinion as well. In addition to recognizing the “institutional (and, possibly, constitutional)” problems with the holding in St. Hubert, she also argued against categorically treating attempts to commit a “crime of violence” as themselves “crimes of violence.”

In her dissent, Judge Martin expressed that the dissents were not an “attack on the institution of the federal courts,” but rather were important components of a vital discussion regarding how the Eleventh Circuit should treat its opinions, especially when those opinions are rendered in the drastically different contexts of adjudicating § 2255(h) applications and adjudicating a fully-briefed direct appeal. She also noted that the Court’s recent opinions have exacerbated a problematic trend where the Court has denied § 2255(h) applications based on the merits rather than the appropriate standard of whether the applicant made a prima facie showing.

Appeal from the Southern District of Florida

Concurrence in the denial of rehearing by Tjoflat, joined by E. Carnes, W. Pryor, Newsom, and Branch

Concurrence by W. Pryor

Concurrence in denial of rehearing by Jordan

Dissent by Wilson, joined by Martin, J. Pryor, Rosenbaum (in part)

Dissent by Martin, joined by J. Pryor

Dissent by J. Pryor, joined by Wilson and Martin

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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