[DO NOTPUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 17-10114

____________________

CHARLES ANDREW FOWLER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:16-cv-01716-JSM-TGW

____________________

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2 Opinion of the Court 17-10114

Before LAGOA, HULL, and MARCUS, Circuit Judges.

LAGOA, Circuit Judge:

Motions filed under 28 U.S.C. § 2255 are subject to a oneyear statute of limitations, which begins to run after one of four 

events. Ordinarily, the one-year limitation runs on “the date on 

which the judgment of conviction becomes final.” Id. § 2255(f)(1). 

But the statute also provides for three other ways to compute the 

one-year timeframe, including “the date on which the right asserted was initially recognized by the Supreme Court, if that right

has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3). 

Here, Charles Fowler appeals from the district court’s denial 

of his motion to set aside, vacate, or correct his sentence filed pursuant to § 2255. While Fowler concedes that he filed his § 2255 

motion with the district court outside of the one-year window 

since his conviction became final, he argues that his motion was 

timely because he filed the motion within one year from the date 

on which the Supreme Court recognized a new right in Johnson v. 

United States, 576 U.S. 591 (2015). In Johnson, the Supreme Court 

held that 18 U.S.C. § 924(2)(B)(ii), the residual clause of the Armed 

Career Criminal Act (“ACCA”), was unconstitutionally vague. 

This Court granted Fowler a motion for a certificate of appealability on the following issue only: “Whether the district court erred in 

dismissing Fowler’s 28 U.S.C. § 2255 motion as untimely?” 

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Before this Court issued the certificate of appealability, and 

while this appeal was pending, this Court entered an order holding 

the matter in abeyance pending the Supreme Court’s decision in 

United States v. Davis, 139 S. Ct. 2319 (2019). After the Supreme 

Court issued its decision in Davis, Fowler, through his counsel, petitioned this Court for leave to file a second or successive § 2255 

motion correctly raising Davis as the new right in Eleventh Circuit 

case number 20-12272. A panel of this Court denied the petition 

without prejudice as premature, noting that this appeal remained 

active and pending. 

As a result of Davis, Fowler in his initial brief petitioned this 

Court to treat his § 2255 motion—expressly based on Johnson—as 

one filed under the Davis decision. For the reasons discussed below, this we cannot do. Because Fowler was convicted under 18 

U.S.C. § 924(c), we affirm the district court’s order dismissing 

Fowler’s motion as untimely, as the Johnson decision was not applicable to Fowler’s conviction. Fowler, however, is not left without a remedy. Because Fowler filed the appropriate form in case 

number 20-12272 for his application to file a successive § 2255 motion within a year of the Supreme Court’s issuance of the Davis

decision, see 11th Cir. R. 22-3(a), we treat Fowler’s initial brief, 

which was filed within a year of the Davis decision, as an application for a second or successive § 2255 motion, given the unique 

procedural circumstances of this particular case. And for the reasons discussed below, we grant the application.

I. FACTUAL AND PROCEDURAL HISTORY 

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A. Direct Appeal 

A federal grand jury indicted Fowler on Count 1 under the 

witness-tampering statute, see 18 U.S.C. § 1512(a)(1)(C), for the 

murder of Officer Christopher Horner with the intent to prevent 

him from communicating information about a federal offense to a 

federal law enforcement officer or federal judge; and Count 2 under 18 U.S.C. §§ 924(c)(1)(A), (j)(1), and 1111(a), for using a firearm 

during a federal crime of violence and, in doing so, committing the 

murder of Officer Horner. Following a trial, the jury found Fowler 

guilty on both counts, and the district court sentenced him to life 

imprisonment on Count 1 and a consecutive term of ten years’ imprisonment on Count 2. 

Fowler appealed his conviction, and a panel of this Court affirmed the conviction for witness tampering on the grounds that 

the “possible or potential communication to federal authorities of 

a possible federal crime is sufficient for purposes” of witness tampering. See United States v. Fowler, 603 F.3d 883, 888 (11th Cir. 

2010) (emphasis in original), vacated, 654 F.3d 1178 (11th Cir. 

2011). The Supreme Court reversed the conviction, holding that 

the government must show more than a mere possibility of communication with a federal official for a conviction under the witness-tampering statute. See Fowler v. United States, 563 U.S. 668, 

676–78 (2011). Rather, the Supreme Court held, the government 

must establish “a reasonable likelihood” that the victim would have 

made “at least one relevant communication . . . to a federal law 

enforcement officer.” Id. at 677–78 (emphasis removed).

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Consistent with the Supreme Court’s holding, this Court instructed the district court to determine whether the evidence presented at trial was sufficient to satisfy the Supreme Court’s standard of “reasonable likelihood.” See United States v. Fowler, 654 

F.3d 1178, 1178–79 (11th Cir. 2011). On remand, the district court 

determined it was not, and offered the government an opportunity 

to retry Fowler on Count 1. The district court also stated it would 

vacate the sentence on Count 2, reasoning “because obviously a 

ten-year sentence on Count 2 is interrelated with the life sentence 

I gave on Count 1. I would not have given someone ten years on 

a murder-with-a-firearm charge standing alone.” The district court 

vacated Fowler’s conviction and sentence on Count 1 after the government decided not to retry him on that count, vacated the tenyear sentence on Count 2, and re-sentenced him to life imprisonment on Count 2. Another panel on this Court affirmed Fowler’s 

re-sentence. See United States v. Fowler, 749 F.3d 1010, 1014 (11th 

Cir. 2014).

B. Fowler’s Initial 28 U.S.C. § 2255 Motion 

Several years after his sentence had become final, on June 

23, 2016, Fowler filed a § 2255 motion to set aside, vacate or correct 

his sentence, asserting that he was entitled to relief pursuant to 

Johnson v. United States, 576 U.S. 591 (2015), which held that the 

residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), of ACCA was unconstitutionally vague, and that the one-year limitations period began to 

run from “the date on which the right asserted was initially recognized by the Supreme Court. . . . and made retroactively applicable 

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to cases on collateral review.” The district court dismissed the motion, finding that Johnson struck only 18 U.S.C. § 924(e)(2)(B)(ii), 

the residual clause of ACCA, not 18 U.S.C. § 924(c), ACCA’s elements clause—under which Fowler was convicted and sentenced. 

The district court further denied Fowler’s request for a certificate 

of appealability.

Fowler proceeded to file a notice of appeal, which this Court 

treated as a motion for a certificate of appealability. While this appeal was pending, the Supreme Court entertained and heard arguments in United States v. Davis, 139 S. Ct. 2319 (2019), which resulted in this Court entering an order holding the matter in abeyance pending the Supreme Court’s decision in Davis. On June 24, 

2019, the Supreme Court’s decision in Davis issued, holding that 18 

U.S.C. § 924(c)(3)(B) of ACCA was also unconstitutionally vague. 

This Court then granted Fowler a motion for a certificate of appealability on the following issue only: “Whether the district court 

erred in dismissing Fowler’s 28 U.S.C. § 2255 motion as untimely?” 

C. Fowler’s Application for Leave to File Second or Successive 

28 U.S.C. § 2255 Motion 

On June 23, 2020—during the pendency of this appeal—

Fowler filed in this Court an application for leave to file a second 

or successive § 2255 motion. See In re Fowler, No. 20-12272 (11th 

Cir. 2020). In the application for case number 20-12272, Fowler 

argued that Davis rendered his conviction under 18 U.S.C. § 924(c) 

unconstitutional. A panel of this Court concluded that his proposed § 2255 motion was “not second or successive within the 

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meaning of §§ 2255(h) and 2244(b)” because his original § 2255 proceeding was not yet final, and therefore denied Fowler’s application without prejudice as premature.

During oral argument in this appeal, counsel for Fowler explained he filed the application for leave to file a second or successive § 2255 motion out of an abundance of caution, as he recognized that Davis controlled the analysis of Fowler’s postconviction 

claims but the decision in Davis had not yet issued when the initial 

§ 2255 motion was filed in the district court. In Fowler’s initial brief 

in this appeal, he again requested that this Court treat his brief as 

an application for a second or successive § 2255 motion based on 

Davis. The initial brief was filed within the one-year window on 

which the right asserted was newly recognized in Davis. 

II. STANDARD OF REVIEW 

Our review “is restricted to the issue[] specified in the certificate of appealability.” Spencer v. Dep’t of Corr., 609 F.3d 1170, 

1180 (11th Cir. 2010) (quoting Williams v. Allen, 598 F.3d 778, 795 

(11th Cir. 2010)). Here, the issue on appeal is strictly limited to 

whether the district court erred in dismissing Fowler’s § 2255 motion as untimely. Our review of that issue is de novo. Daniels v. 

United States, 809 F.3d 588, 589 (11th Cir. 2015).

III. ANALYSIS 

On appeal, Fowler asks us to recast or construe his § 2255 

motion as a claim under Davis. This we cannot do. Davis is not 

simply an extension of Johnson; “Davis announced a new

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substantive rule.” In re Hammoud, 931 F.3d 1032, 1039 (11th Cir. 

2019) (emphasis added). In Hammoud, we considered an application for leave to file a second or successive § 2255 motion from an 

individual who contended that his § 924(c) conviction was no 

longer valid in light of Davis. 931 F.3d at 1035–36. There, we held 

that Davis announced a new rule of constitutional law. Id. at 1038. 

In so concluding, we explained that Davis announced a new rule, 

in part, because its holding was not necessarily dictated by Johnson, 

as illustrated by the circuit split that preceded it. Id. at 1038–39. 

We also held that the Supreme Court made the Davis rule retroactively applicable to criminal cases that became final before it was 

announced. Id. at 1039. We further concluded that the applicant’s 

claim was not barred as repetitious because, although he had raised 

a Johnson claim in a previous successive application, that claim was 

distinct from his Davis claim because Davis announced a new rule 

separate and apart from Johnson. Id. at 1039–40.

A federal prisoner who wishes to file a second or successive 

§ 2255 motion may receive authorization to do so if he makes a 

prima facie showing that the proposed motion contains claims 

premised on “a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §§ 2244(b)(3)(C), 2255(h)(2). A federal prisoner may not raise a claim in a second or successive § 2255 

motion if he already raised that claim in a prior application. In re 

Baptiste, 828 F.3d 1337, 1339–40 (11th Cir. 2016).

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In other words, “a Johnson claim is distinct from a Davis

claim.” Granda v. United States, 990 F.3d 1272, 1283 (11th Cir. 

2021). Indeed, in In re Hammoud, this Court stated that: “Hammoud’s reliance on . . . Johnson to support his § 924(c) challenge is 

misplaced, as [Johnson] involved . . . the ACCA . . . . Thus, Hammoud’s present claim is best described as a Davis claim.” In re 

Hammoud, 931 F.3d at 1036 n.1. Hammoud and Granda read together make abundantly clear that Davis is not “Johnson-plus.” To 

the extent that our prior case law was not clear, we reaffirm and 

hold that defendants challenging their convictions and sentences 

under § 924(c) must bring their § 2255 motions under Davis, not 

Johnson.

Fowler contends, however, that the notion that Davis created a new rule separate and distinct from Johnson was a courtesy 

to defendants who were outside the one-year window from Johnson to file § 2255 motions. In other words, Fowler argues that if 

this Court never issued In re Hammoud and, therefore, never determined that Davis was separate and distinct from Johnson, defendants without the foresight to see Davis invalidating § 924(c) at 

some point in the future would be unable to file such collateral attacks on their convictions if one year lapsed since Johnson and they 

failed to file a challenge. Fowler argues that this Court’s decision, 

Solomon v. United States, 911 F.3d 1356 (11th Cir. 2019), supports 

his argument. In Solomon, the certificate of appealability raised 

the question of whether Johnson applied to § 924(c). Id. at 1357. 

While Solomon was issued prior to the Supreme Court’s decision 

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in Davis, Fowler points to language in Solomon that describes the

authorization to file a second or successive § 2255 motion as “a 

threshold determination and narrowly circumscribed,” and that 

“[t]he successive motion does not stand in the place of a first § 2255 

motion, allowing the movant to raise any claim that would have 

been cognizable in an original § 2255 proceeding.” Id. at 1360. 

Again, this language works in Fowler’s favor only if we disregard 

Hammoud’s central holding. Fowler’s initial § 2255 motion—the 

motion that is on appeal—was improper from the outset; it sought 

relief from his conviction under § 924(c) based on a right established in Johnson, which did not address § 924(c).

Indeed, Fowler’s co-defendant raised an identical argument. 

In Paige v. United States, 798 F. App’x 470, 471 (11th Cir. 2020), the 

defendant, convicted and sentenced under § 924(c), filed a § 2255 

motion under Johnson. A panel of this Court concluded that 

“[b]ecause [the] instant § 2255 motion only raised a Johnson claim, 

and because, under In re Hammoud, Johnson claims are distinct 

from Davis claims, the district court did not err in denying Paige’s 

§ 2255 motion.” Id. at 472. 

Fowler argues that Paige and other similar cases, such as 

Granda, represent a “completely different set of circumstances,” as

they were “decided on the merits.” While it is true that we are not 

presented with the merits of Fowler’s claims here, the threshold 

question of whether the Supreme Court created a new right in Davis separate and apart from Johnson nonetheless applies equally 

here. Fowler’s attempt to distinguish the issue here—the 

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timeliness of his § 2255 motion—from the issue in Paige—the merits of Paige’s motion—is a distinction without a difference. Because 

Fowler filed his § 2255 motion well after the one-year limitation 

from the date of his conviction being final, the only other way for 

Fowler to satisfy the one-year limitations period under the statute 

was to file the motion within one year of a newly recognized right 

by the Supreme Court in Davis. Identifying precisely under which 

right recognized by the Supreme Court a defendant purports to 

challenge his or her conviction and sentence is not just a matter for 

the merits of a § 2255 motion; it is also a matter for determining 

timeliness based on the explicit statutory language of 28 U.S.C. 

§ 2255(f)(3).

The issue in Fowler’s certificate of appealability is a narrow 

one: whether the district court erred in dismissing Fowler’s § 2255 

motion as untimely. It did not. Fowler filed his § 2255 motion well 

past one year from the date on which his conviction became final. 

The alternative limitations period based on a newly created right 

by the Supreme Court does not save his untimely filing because 

Johnson did not invalidate the statute under which Fowler was 

convicted, and a Johnson claim cannot be construed as a Davis

claim. We therefore affirm the district court’s order but note that 

as the certificate of appealability asked this Court to determine only 

whether Fowler timely filed his § 2255 motion, we offer no comment on his alternative argument on the merits of his motion.

Notwithstanding the affirmance on the certificate of appealability, we recognize that Fowler in his initial brief in this case asked 

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this Court to treat the initial brief as an application to file a successive § 2255 motion based on Davis, within a year of the Davis decision. Additionally, Fowler, in case number 20-12272, filed an application to file a successive § 2255 motion based on Davis within a 

year of that decision using the appropriate form, although that application was denied by this Court without prejudice as premature

as his § 2255 motion Johnson appeal was held in abeyance pending 

the outcome of Davis. See 11th Cir. R. 22-3(a). As a result of these 

unique circumstances, we treat Fowler’s initial brief—which was 

filed within one year of a right newly recognized by the Supreme 

Court in Davis—as an application for a second or successive § 2255 

motion based on Davis, and we grant the application. 

APPEAL AFFIRMED; APPLICATION FOR LEAVE TO 

FILE SECOND OR SUCCESSIVE § 2255 MOTION GRANTED. 

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