Application for Leave to File a Second or Successive Habeas
Corpus Petition, 28 U.S.C. § 2244(b)
WILSON, MARTIN, and JILL PRYOR, Circuit Judges.
sponte vacate our order in this case dated July 13, 2018 and
replace it with this published order.
to 28 U.S.C. § 2244(b)(3)(A), Octavious Williams has
filed an application seeking an order authorizing the
district court to consider a second or successive petition
for a writ of habeas corpus. Such authorization may be
granted only if:
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). "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't of 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).
2244(b)(1) of Title 28, however, provides that "a claim
presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application
shall be dismissed." 28 U.S.C. § 2244(b)(1). A
"claim" remains the same so long as "[t]he
basic thrust or gravamen of [the applicant's] legal
argument is the same." In re Hill, 115 F.3d
284, 294 (11th Cir. 2013). For applications requesting
authorization to file a second or successive petition
pursuant to § 2254, this Court has consistently applied
§ 2244(b)(1) to prohibit the filing of a claim that is
the same as a claim presented in a petitioner's initial
habeas petition before the district court. See In re
Everett, 797 F.3d 1282, 1291 (11th Cir. 2015); In re
Mills, 101 F.3d 1369, 1370 (11th Cir. 1996).
records show that Williams was convicted in 2001 following a
jury trial. Following a series of events not relevant to the
present application, he filed, in 2007, his original §
2254 petition, pro se. In it, he raised a number of
claims, including ground two, labeled "ineffective
assistance of trial counsel; denial of right to impartial
trial; biase[d] judge, " and ground three,
labeled "ineffective assistance of trial counsel;
biase[d] judge." In support, he argued that his
state court trial judge engaged in "improper acts"
reflecting bias, that his trial attorney knew about those
acts but did nothing, and that counsel was therefore
ineffective by not moving for recusal. The district court
ultimately found that Williams's § 2254 petition was
untimely, and denied it with prejudice.
pro se application, Williams indicates that he
wishes to raise one claim in a successive § 2254
petition. He argues that trial counsel was ineffective
"because the trial court judge was biased against
him." He concedes that he raised this claim in a prior
petition, but contends that it relies on a new rule of
constitutional law. However, he does not provide a citation
to support that contention. And he also concedes that his
claim does not rely on newly discovered evidence.
application fails for two reasons. First, Williams raised an
"ineffective assistance of counsel - biased judge"
claim in his original § 2254 petition. Thus, to the
extent that the gravamen of the claims is the same, his
current claim is precluded by section 2244(b)(1) and
"shall be dismissed." 28 U.S.C. § 2244(b)(1);
In re Mills, 101 F.3d at 1370.
even if Williams's current claim is not precluded by
§ 2244(b)(1), he still has not made a prima
facie showing that he would be entitled to relief.
Although Williams contends that his claim relies on a new
rule of constitutional law, he has failed to cite or
otherwise identify a case that would support his claim. Thus,
he does not satisfy § 2244(b)(2)'s criteria.
Williams's application is DISMISSED to the extent that it
is barred by In re Mills and 28 U.S.C. §
2244(b)(1), and DENIED to the extent that it is not.
WILSON, Circuit Judge, with whom MARTIN and JILL PRYOR,
Circuit Judges, join, specially concurring:
this special concurrence in light of the rule recently
adopted by a panel of this court in United States v. St.
Hubert, 883 F.3d 1319, 1328-29 (11th Cir. 2018)
("[W]e now hold in this direct appeal that law
established in published three-judge orders issued pursuant
to 28 U.S.C. § 2244(b) in the context of applications
for leave to file second or successive § 2255 motions
are binding precedent on all subsequent panels of
this Court, including those reviewing direct appeals and
* * * *
5, 2016, federal inmate Markson Saint Fleur used a typewriter
at the Federal Correctional Institution in Bennettsville,
South Carolina to complete his Application for Leave to File
a Second or Successive Motion to Vacate, Set Aside, or
Correct a Sentence under 28 U.S.C. § 2255. After briefly
reciting his conviction and procedural history, he typed out
his legal argument: forty-three words, with citations to two
Supreme Court cases. He signed the form and placed it in the
mail. We received it four days later, on May 9. Although
Saint Fleur served the United States, the government did not
file a response. In fact, nothing else was filed on our
motions panel reached its decision on this application
thirty days later, on June 8, 2016, as required by statute.
Based on these forty-three words of argument, the panel
majority wrote an order denying the application and
designated it for publication in the Federal Reporter.
Holding for the first time in the Eleventh Circuit that Hobbs
Act robbery "clearly qualifies as a 'crime of
violence' under the use-of-force clause in [18 U.S.C.]
§ 924(c)(3)(A)," the panel found that Saint Fleur
could not make a prima facie showing under 28 U.S.C. §
2255(h). In re Saint Fleur, 824 F.3d at 1340-41.
Sixteen days later-in another published order and under
similar circumstances-the same motions panel, partially relying
upon In re Saint Fleur, found that aiding and
abetting Hobbs Act robbery also "clearly qualifies"
as a crime of violence under the use-of-force clause. In
re Colon, 826 F.3d at 1305. Saint Fleur and Colon had no
avenues of review available: Per statute, panel orders of
this type cannot be reviewed by the Supreme Court and may not
be the subject of a petition for rehearing en banc.
St. Hubert panel, in a direct appeal from a criminal
conviction-with full briefing, oral argument by attorneys on
both sides, and no thirty-day time limit-held that In re
Saint Fleur and In re Colon bound it as prior
panel precedent. With only panel orders and a generic
citation to our prior-panel-precedent rule for support, the
St. Hubert panel explicitly held:
Lest there be any doubt, we now hold in this direct appeal
that law established in published three-judge orders
issued pursuant to 28 U.S.C. § 2244(b) in the context of
applications for leave to file second or successive §
2255 motions are binding precedent on all subsequent
panels of this Court, including those reviewing direct
appeals and collateral attacks, "unless and until [they
are] overruled or undermined to the point of abrogation by
the Supreme Court or by this court sitting en banc."
United States v. St. Hubert, 883 F.3d 1319, 1329
(11th Cir. 2018) (alteration in original) (emphasis added)
after St. Hubert, published panel orders-typically decided on
an emergency thirty-day basis, with under 100 words of
argument (often written by a pro se prisoner), without any
adversarial testing whatsoever, and without ...