[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 17294 Non

- Argument Calendar

________________________ D.C. Docket No s . 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

________________________ (March 18, 2020) Before WILSON , MARTIN , and ROSENBAUM, Circuit Judges. PER CURIAM:

Case: 16-17294 Date Filed: 03/18/2020 Page: 1 of 72 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 issuan ce of the mandate in Ovalles v. United States 1 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).

Case: 16-17294 Date Filed: 03/18/2020 Page: 2 of 73 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 C ir. 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)

. U nder 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 c ourt 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 fur therance 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 § 92 4(c)(3)(B) as the “residual clause.” Thompson v. United States , 924 F.3d 1153, 1155 (11th Cir. 2019).

Case: 16-17294 Date Filed: 03/18/2020 Page: 3 of 74 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 A rmed Career C riminal A ct (“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,
separ ate 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

Case: 16-17294 Date Filed: 03/18/2020 Page: 4 of 75 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 wh ile 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

– 2 6 ( 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 “re cast” as a Davis claim on appeal)

. Specifically, we view t he 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)).

Case: 16-17294 Date Filed: 03/18/2020 Page: 5 of 76 See In re Hammoud , 93 1 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 232 5

– 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.
T he 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

.

Case: 16-17294 Date Filed: 03/18/2020 Page: 6 of 77 d ismissal of Blackman’s § 2255 motion and remand to t he district court to consider, in light of Davis and In re Hammoud , whether he is entitled to relief. VACATED AND REMANDED. Case: 16-17294 Date Filed: 03/18/2020 Page: 7 of 7