for Leave to File a Second or Successive Motion to Vacate,
Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)
MARCUS, MARTIN, and JILL PRYOR, Circuit Judges.
to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Orestes
Hernandez has filed an application seeking an order
authorizing the district court to consider a second or
successive motion to vacate, set aside, or correct his
federal sentence, 28 U.S.C. § 2255. Such authorization
may be granted only if this Court certifies that the second
or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). "The court of appeals may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of this subsection." Id. § 2244(b)(3)(C);
see also Jordan v. Sec'y, Dep'tof Corrs.,
485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this
Court's determination that an applicant has made a
prima facie showing that the statutory criteria have
been met is simply a threshold determination).
application, Hernandez seeks to raise one claim in a second
or successive § 2255 motion. Hernandez asserts that his
claim relies on a new rule of constitutional law, citing
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), is unconstitutionally vague. He also asserts
that his claim relies on Mathis v. United States,
136 S.Ct. 2243 (2016). Hernandez contends that the Supreme
Court's holding in Johnson implicates the
mandatory terms of imprisonment he received under 18 U.S.C.
§ 924(c) for using a firearm during a crime of violence.
He argues that his convictions for Hobbs Act robbery and
extortion, 18 U.S.C. § 1951, and carjacking, 18 U.S.C.
§ 2119, no longer qualify as crimes of violence under
§ 924(c), after the Supreme Court's holding in
Johnson and Mathis.
28 U.S.C. § 2244(b)(1), a claim presented in a second or
successive habeas corpus application under § 2254 that
was presented in a prior application must be dismissed. 28
U.S.C. § 2244(b)(1). This Court has held that §
2244(b)(1)'s mandate applies to applications for leave to
file a second or successive § 2255 motion. In re
Baptiste, 828 F.3d 1337, 1339-40 (11th Cir. 2016).
Hernandez has previously filed an application for leave to
file a second or successive § 2255 motion based on
Johnson. In that application, Hernandez contended
that his § 924(c) convictions were no longer valid. We
denied his application, reasoning that Hernandez's Hobbs
Act convictions qualified as crimes of violence under §
924(c)(3)(A)'s use-of-force clause. In re: Orestes
Hernandez, No. 16-11862, manuscript op. at 2-3 (11th.
Cir. May 17, 2016). We noted that Hernandez's indictment
confirmed that he was convicted under the part of § 1951
that contained a use of force. Id. at 3.
Accordingly, we denied his application, reasoning that
Hernandez's sentence was valid even if Johnson
invalidated § 924(c)'s residual clause. Id.
Because Hernandez raises the same argument in this
application that we previously denied on the merits, under
binding precedent his application must be denied.
Baptiste, 828 F.3d at 1339.
Mathis does not provide an independent basis for his
application, as the Supreme Court's holding in
Mathis did not announce a "new rule of
constitutional law." See 28 U.S.C. §
2255(h). Rather, the Supreme Court in Mathis
provided guidance to courts in interpreting an existing
criminal statute. See Mathis, 136 S.Ct. at 2248-57.
because Hernandez has failed to make & prima
facie showing of the existence of either of the grounds
set forth in 28 U.S.C. § 2255, his application for leave
to file a second or successive motion is hereby DENIED.
MARTIN, Circuit Judge, concurring in result, joined by JILL
PRYOR, Circuit Judge:
Hernandez was sentenced to 775-months imprisonment. 300
months of his sentence-25 years in prison-came from three
mandatory-minimum sentencing enhancements he got for using a
gun in the commission of his crimes under 18 U.S.C. §
924(c). Mr. Hernandez asks us to make sure the crimes he was
charged with qualify as crimes of violence so as to justify
the 25 extra years he received under § 924(c). However,
we are barred from reviewing his application by In re
Baptiste, 828 F.3d 1337 (11th Cir. 2016), which held
that "the federal habeas statute requires us to dismiss
a claim that has been presented in a prior application"
to file a § 2255 motion. Id. at 1339. I have
stated my view that this bar created by our Court in
Baptiste has no basis in the text of the habeas
Baptiste was construing ... 28 U.S.C. §
2244(b)(1), which says any "claim presented in a second
or successive habeas corpus application under section 2254
that was presented in a prior application shall be
dismissed." Of course,  § 2255 motions ... are
filed by federal prisoners [and] § 2255 motions are
certainly not brought "under section 2254, " which
governs petitions filed by state prisoners. But the
Baptiste panel ruled that even though §
2244(b)(1) does not mention § 2255 motions, it applies
to them anyway, since "it would be ...