In re: Tracy Garrett

In re: Tracy Garrett, No. 18-13680-F, (November 2, 2018)

The Court held that an application to file a successive motion under § 2255, brought by a defendant convicted under § 924(c) and based on Johnson and Dimaya, was not based on a “new rule of constitutional law,” since the Eleventh Circuit held en banc in Ovalles that “crime of violence” under § 924(c) is not void-for-vagueness. The Court also held that the “conduct-based approach” to § 924(c) announced in Ovalles did not create a “new rule of constitutional rule.”

New Rule of Constitutional Law/ § 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

TOPICS: § 2255