[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-17294

Non-Argument Calendar

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D.C. Docket Nos. 8:16-cv-01659-SCB-TBM; 8:06-cr-00353-SCB-TBM-1

DEANTE BLACKMAN, 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

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(March 18, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Deante Blackman appeals the district court’s dismissal of his 28 U.S.C. 

§ 2255 motion to vacate, in which he argued that his 18 U.S.C. § 924(c) conviction

should be vacated in light of Johnson v. United States, 135 S. Ct. 2551 (2015). We

granted a certificate of appealability (COA) on one issue: whether the district court 

erred in determining that Blackman’s § 2255 motion was time-barred under 

§ 2255(f)(3) in light of Johnson. We held Blackman’s appeal in abeyance pending 

the issuance of the mandate in Ovalles v. United States1 and continued the stay 

until the Supreme Court decided United States v. Davis, 588 U.S. ___, 139 S. Ct. 

2319 (2019).

A prisoner in federal custody may file a motion to vacate, set aside, or 

correct his sentence by asserting “that the sentence was imposed in violation of the 

Constitution or laws of the United States, or that the court was without jurisdiction 

to impose such sentence, or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. 

§ 2255(a). There is a one-year statute of limitations for filing a § 2255 motion to 

vacate, which begins to run following, as relevant here, the date the right asserted 

was initially recognized by the Supreme Court, if that right has been newly 

1 Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017), reh’g en banc granted, opinion 

vacated, 889 F.3d 1259 (11th Cir. 2018), and on reh’g en banc, 905 F.3d 1231 (11th Cir. 2018), 

opinion reinstated in part, 905 F.3d 1300 (11th Cir. 2018), abrogated by United States v. Davis, 

139 S. Ct. 2319 (2019).

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recognized by the Supreme Court and made retroactively applicable to cases on 

collateral review. 28 U.S.C. § 2255(f)(3). This limit is not jurisdictional. Sandvik 

v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam).

We review de novo the district court’s dismissal of a § 2255 motion as 

untimely. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). When 

reviewing a district court’s denial of a § 2255 motion, we review questions of law 

de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 

1232 (11th Cir. 2004) (per curiam). Under our prior-panel-precedent rule, “a prior 

panel’s holding is binding on all subsequent panels unless and until it is overruled 

or undermined to the point of abrogation by the Supreme Court or by this court 

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (2008). 

Section 924(c) of Title 18 of the United States Code criminalizes the use or 

carrying of a firearm in furtherance of a crime of violence or drug-trafficking 

crime. “Crime of violence” is defined as a felony offense that either 

(A) has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another, or 

(B) that by its nature, involves a substantial risk that physical force 

against the person or property of another may be used in the course of 

committing the offense. 

18 U.S.C. § 924(c)(3). We often refer to § 924(c)(3)(A) as the “elements clause” 

and § 924(c)(3)(B) as the “residual clause.” Thompson v. United States, 924 F.3d 

1153, 1155 (11th Cir. 2019). 

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Recently, in Davis, the Supreme Court extended its holdings in Johnson and 

Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018) to § 924(c), holding that

that § 924(c)(3)(B)’s residual clause, like the residual clauses in the Armed Career 

Criminal Act (“ACCA”) and 18 U.S.C. § 16(b), is unconstitutionally vague. 

Davis, 139 S. Ct. at 2336. In so holding, the Court emphasized that there was no 

“material difference” between the language or scope of § 924(c)(3)(B) and the 

residual clauses struck down in Johnson and Dimaya, and, therefore, it concluded 

that § 924(c)(3)(B) was unconstitutional for the same reasons. Id. at 2326, 2336.

In In re Hammoud, we held that Davis announced “a new rule of 

constitutional law, made retroactive to cases on collateral review by the Supreme 

Court, that was previously unavailable.” 931 F.3d 1032, 1038–39 (11th Cir. 2019); 

see 28 U.S.C. § 2255(h)(2). In doing so, we explained that Davis extended 

Johnson’s and Dimaya’s holdings to a new statutory context, while noting that 

Davis’s result was not necessarily dictated by precedent. In re Hammoud, 931 

F.3d at 1038–40 (stating that Davis was a new constitutional rule “in its own right, 

separate and apart from (albeit primarily based on) Johnson and Dimaya”). We

also held that the district court, having never previously considered the Davis

issue, should review the merits of such a claim in the first instance. Id. at 1040–41. 

We noted that “in the district court, Hammoud will bear the burden of showing that 

he is actually entitled to relief on his Davis claim, meaning he will have to show 

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that his § 924(c) conviction resulted from application of solely the residual clause.” 

Id. at 1041 (citing Beeman v. United States, 871 F.3d 1215, 1222–25 (11th Cir. 

2017)). Additionally, we recently addressed the merits of an appellant’s Davis

claim where the claim was originally raised under Johnson but recast as a Davis 

claim, as Davis was decided while the appeal was pending. United States v. 

Steiner, 940 F.3d 1282, 1288, 1292–93 (11th Cir. 2019) (per curiam). 

As an initial matter, the COA is sufficiently broad to encompass Blackman’s 

Davis claim.2

 See Davis, 139 S. Ct. 2325–26 (stating that there was no “material 

difference” between the language and scope of the residual clauses struck down in 

Johnson and Dimaya and § 924(c)(3)(B)’s residual clause); Steiner, 940 F.3d at 

1288, 1292–93 (addressing the merits of a Johnson claim “recast” as a Davis claim 

on appeal). Specifically, we view the COA as broad enough to encompass whether 

Blackman’s § 2255 motion is timely as to his Davis claim and, additionally, 

whether his Davis claim can be properly considered within the present § 2255 

proceedings. 

Here, it is clear that Davis announced the new rule of constitutional law 

applicable to Blackman’s challenge to his § 924(c) conviction, rather than Johnson. 

2 Even if the COA did not encompass Blackman’s Davis claim, we could sua sponte expand the 

COA to address this claim. Mays v. United States, 817 F.3d 728, 733 (11th Cir. 2016) (per 

curiam) (“On exceptional occasions, we may expand a COA sua sponte to include issues that 

reasonable jurists would find . . . debatable.” (internal quotation mark omitted)). 

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See In re Hammoud, 931 F.3d at 1038–39.3 And, because Davis represented an 

extension of the Supreme Court’s decisions in Johnson and Dimaya, we conclude 

that the district court’s conclusions that Johnson did not apply to § 924(c) and, 

therefore, that Blackman’s § 2255 motion was untimely, were erroneous. See 

Davis, 139 S. Ct. at 2325–27; In re Hammoud, 931 F.3d at 1038–40 (explaining 

that the rule announced in Davis was primarily based on Johnson and Dimaya). 

However, because Davis was decided while Blackman’s appeal was pending, the 

district court necessarily never considered it. Regardless, because Blackman raised 

his Davis claim within one year of the Davis decision, we conclude that his § 2255 

motion was timely filed. See 28 U.S.C. § 2255(f)(3).

Moreover, the district court never considered whether Blackman had shown 

that his § 924(c) conviction relied solely on the residual clause. See In re

Hammoud, 931 F.3d at 1040–41; Beeman, 871 F.3d at 1222–25. It also did not 

address the merits of Blackman’s arguments that his predicate convictions do not 

categorically qualify as crimes of violence under § 924(c)(3)(A)’s elements clause. 

The district court is in a better position to review Blackman’s Davis claim in the 

first instance. In re Hammoud, 931 F.3d at 1040–41. Accordingly, we vacate the 

3 Blackman’s claim that In re Hammoud was wrongly decided is foreclosed by our prior precedent 

rule. See Archer, 531 F.3d at 1352.

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dismissal of Blackman’s § 2255 motion and remand to the district court to 

consider, in light of Davis and In re Hammoud, whether he is entitled to relief. 

VACATED AND REMANDED.

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