1 

 [PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

________________________ 

No. 18-12538 

________________________ 

In re: OCTAVIOUS WILLIAMS, 

 Petitioner. 

________________________ 

Application for Leave to File a Second or Successive 

Habeas Corpus Petition, 28 U.S.C. § 2244(b) 

________________________ 

Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges. 

B Y T H E P A N E L: 

We sua sponte vacate our order in this case dated July 13, 2018 and replace 

it with this published order. 

Pursuant 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: 

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2 

(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 unavailable; or 

(B)(i) the factual predicate for the claim could not have been discovered 

previously through the exercise of due diligence; and 

(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). 

Section 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 

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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). 

Court 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. 

In his 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. 

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Williams’s 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. 

Second, 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. 

Accordingly, 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. 

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WILSON, Circuit Judge, with whom MARTIN and JILL PRYOR, Circuit Judges, 

join, specially concurring: 

I write 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 collateral attacks.”). 

* * * * * 

On May 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.1

 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 docket. 

 

1 See Emergency Application at 5, In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (per curiam) 

(No. 16-12299), ECF No. 1.

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The motions panel2 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 circumstances3

—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. 

 

2

 In this special concurrence, I use “merits panel” to refer to a three-judge panel hearing appeals 

from the argument or non-argument calendar. I use “opinion” to refer to an opinion issued by a 

merits panel. I use “motions panel” to refer to a panel deciding upon motions, including whether 

to grant an application for leave to file a second or successive motion. I use “panel order” to 

refer to an order issued by a motions panel. 

3

 This time, petitioner-inmate Edgar Amado Colon, Jr. had a Federal Public Defender fill out his 

form. Perhaps because she had access to word-processing software (as opposed to Saint Fleur’s 

prison typewriter), the attorney was able to fit ninety-eight words of argument and two Supreme 

Court citations onto our form. See Emergency Application at 5, In re Colon, 826 F.3d 1301 

(11th Cir. 2016) (per curiam) (No. 16-13021), ECF No. 1. Once again, there was nothing else 

filed on our docket in Colon’s case, apart from the Federal Defender’s appearance of counsel 

form. 

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 The 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-panelprecedent 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) (citation omitted). 

So 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 

any available avenue of review—bind all future panels of this court. 

This is the first time that this court has held as much in a published 

merits opinion on direct appeal. Such a holding raises numerous institutional 

concerns for our Circuit, and this court should not have adopted it. But, 

unfortunately, we have. 

* * * * * 

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 Congress has delegated to the circuit courts a gatekeeping role when 

reviewing second or successive petitions under §§ 2244 and 2255. See 28 

U.S.C. §§ 2244(b)(2)–(3), 2255(h). Generally, these sections provide that 

before filing a second or successive application, a petitioner must move this 

court “for an order authorizing the district court to consider the application.” 

28 U.S.C. § 2244(b)(3)(A). We may review such petitions only for whether 

they contain: 

 (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; or 

(2) a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously unavailable. 

Id. § 2255(h). During this review, “we do not make any factual 

determinations.” Jordan v. Sec’y, Dept. of Corr., 485 F.3d 1351, 1357 (11th 

Cir. 2007). Rather, the statute permits us only to determine “whether the 

petitioner has made out a prima facie case of compliance with [its] 

requirements.” Id. at 1358. We have only thirty days to rule, 28 U.S.C. 

§ 2244(b)(3)(D), and our resultant panel order “shall not be appealable and 

shall not be the subject of a petition for rehearing or for a writ of certiorari.” 

Id. § 2244(b)(3)(E). 

In this Circuit, we require non-death second or successive petitionerinmates to use a form that we provide. 11th Cir. R. 22-3(a). This form 

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prohibits petitioners from additional briefing or attachments, and requires all 

argument to take place “concisely in the proper space on the form.” For each 

claim, the current version of the form provides a 1” x 5.25” space in which to 

state a “ground on which you now claim that you are being held unlawfully.” 

It then provides a 7.25” x 5.25” space in which to “summarize briefly the facts 

supporting [this] ground.” And for legal arguments, the form provides a 2.5” x 

5.25” space in which to assert that a claim “rel[ies] on a ‘new rule of 

constitutional law,’” and an 8” x 5.25” space in which to assert that a claim 

“rel[ies] on newly discovered evidence.” 

These applications are often decided without counseled argument from 

the petitioner, and are always decided without an opposing brief from the 

government, except for death-penalty-related applications. We also rarely 

have access to the whole record. See generally Jordan, 485 F.3d at 1357–58 

(describing the limitations we face when deciding these applications). When 

making these determinations, therefore, the panel typically races to issue an 

unappealable order based solely on the arguments of a pro se prisoner 

constrained to a little over one page per ground.4

 

4

 For example, the petitioner in this case, Octavious Williams, did not even have the correct form 

or access to a typewriter. See Emergency Application, In re Williams, No. 18-12538 (11th Cir. 

Jun. 15, 2018), ECF No. 1. He filled out the form with a pen and wrote thirteen words of 

argument. Id. at 5. Nothing else was filed on our docket, and we issued an order twenty-eight 

days later. It defies belief that the court would want orders resulting from this process to bind all 

merits panels. 

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Conversely, when we decide a merits appeal, we have essentially 

unlimited time to decide the case, there are usually attorneys on both sides, we 

have extensive briefing, and we have the entire record in front of us (including 

an order from the court below). And the large majority of our published merits 

opinions come from our oral argument calendar, where attorneys for each party 

argue for at least fifteen minutes. Of course, after a merits opinion issues, 

aggrieved parties may petition for panel rehearing, for rehearing en banc, or for 

a writ of certiorari. 

Despite this stark contrast in process, published panel orders and 

published opinions now enjoy the same precedential heft, equally binding 

future panels of this court unless and until overruled by the court sitting en 

banc. In fact, published panel orders perhaps have greater weight, because 

they may not be appealed to the Supreme Court and they may not be the 

subject of a petition for rehearing en banc. We should not elevate these 

hurriedly-written and uncontested orders in this manner. 

* * * * * 

Other circuits do not operate this way. First, and perhaps most 

importantly, other circuits simply do not publish panel orders with anywhere 

near the frequency that we do. In the last five years, we have published fortyCase: 18-12538 Date Filed: 08/01/2018 Page: 10 of 28 
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five second or successive panel orders, while all of the other circuits combined 

have published eighty. 

Second, all of our sister circuits that have definitively spoken on the 

matter do not consider themselves constrained by the thirty-day time limit for 

deciding a second or successive petition.5

 We have once tried to so hold, but—

in what appears to be the only time a panel order has been taken en banc in this 

Circuit (via an ad hoc process)—we reversed ourselves. See In re Johnson, 

814 F.3d 1259, 1262 (11th Cir. 2016) (per curiam), vacated, 815 F.3d 733 

(11th Cir. 2016) (en banc). In line with this, judges in this Circuit consider 

themselves bound by the thirty-day limit, and we dispose of “virtually every 

one of the thousands” of applications under §§ 2244 and 2255 “(at least 99.9% 

of them)” within thirty days.6

 See also In re Henry, 757 F.3d 1151, 1157 n.9 

(11th Cir. 2014) (“[T]his Court necessarily must apply § 2244(b)(2) under a 

tight time limit in all cases, since the statute expressly requires us to resolve 

 

5

 The First, Second, Third, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits have all held that 

they are not strictly bound by the thirty-day rule. See Moore v. United States, 871 F.3d 72, 77–

78 (1st Cir. 2017); Johnson v. United States, 623 F.3d 41, 43 n.3 (2d Cir. 2010); In re Hoffner, 

870 F.3d 301, 307 n.11 (3d Cir. 2017); In re Williams, 330 F.3d 277, 281 (4th Cir. 2003); In re 

Siggers, 132 F.3d 333, 335 (6th Cir. 1997); Gray-Bey v. United States, 201 F.3d 866, 867 (7th 

Cir. 2000); Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015); Browning v. United States, 

241 F.3d 1262, 1263 (10th Cir. 2001). While the Fifth Circuit has an unpublished order noting 

that it is “statutorily required to ‘grant or deny the authorization to file a second or successive 

application not later than 30 days after the filing of the motion,’” In re White, 602 F. App’x 954, 

956 n.2 (5th Cir. 2015) (citation omitted), it does not appear to have so held in a published 

opinion. It does not appear as though the Eighth or D.C. Circuits have opined on the issue. 

6

 Eleventh Circuit General Order No. 43, at 2 (2018), http://www.ca11.uscourts.gov/sites/ 

default/files/courtdocs/clk/GeneralOrder43.pdf. 

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this application within 30 days, no matter the case.” (emphasis added)).7 This 

extremely compressed timeline can lead to odd results that we would likely not 

accept in a merits appeal. See, e.g., In re Sapp, 827 F.3d 1334 (11th Cir. 2016) 

(per curiam) (published, unsigned panel order followed by a three-judge 

special concurrence); see also, e.g., In re Armstrong, No. 18-10948 (11th Cir. 

Apr. 3, 2018) (per curiam) (unsigned panel order followed by three singlejudge special concurrences). 

Third, even in non-death cases, many other circuits often consider 

briefing from the government before issuing a published order; some also 

entertain oral argument from both parties.8

 We never grant oral argument in 

 

7

 We recently ignored our now-binding precedent in In re Henry by holding all second or 

successive applications in abeyance in the wake of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 

See Eleventh Circuit General Order No. 43, supra note 6; see also, e.g., In re Ratliff, No. 18-

12760 (11th Cir. Jul. 2, 2018), ECF No. 2 (clerk of court holding application in abeyance 

pursuant to General Order 43). Setting aside the fact that a General Order decides no case or 

controversy and cannot overrule a now-binding published order, it does not change my point: we 

almost always decide these applications within thirty days (“at least 99.9%” of the time), while 

other circuits do not hold themselves to that rigid deadline. And, remember, we once tried to 

dismiss In re Henry as dicta and hold that we are not bound by the deadline, In re Johnson, 814 

F.3d at 1268, but the en banc court vacated that order. 815 F.3d at 733. 

8 E.g., Evans-Garcia v. United States, 744 F.3d 235 (1st Cir. 2014) (orally argued); In re 

Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam) (noting there was “extensive briefing 

and oral argument”); In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (orally argued); In re 

Williams, 806 F.3d 322 (5th Cir. 2015) (government brief filed); In re Patrick, 833 F.3d 584 (6th 

Cir. 2016) (government brief filed); Dawkins v. United States, 829 F.3d 549 (7th Cir. 2016) (per 

curiam) (government brief filed); Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016) 

(government brief filed); Ezell v. United States, 778 F.3d 762 (9th Cir. 2015) (government brief 

filed). To be sure, there are instances where other circuits have published orders without 

government briefing or oral argument. But the fact that our non-death published second or 

successive orders always issue without hearing from the government—combined with our 

adherence to the thirty-day limit and propensity for publication—stands far outside the norm. 

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non-death second or successive petitions. And, having reviewed the thirty-nine 

non-death published second or successive orders for which docket information 

is readily available, I was unable to locate any docket on which the United 

States filed an individualized brief prior to the published order’s issuance.9

So, procedurally speaking,10 we have the worst of three worlds in this 

Circuit. We publish the most orders; we adhere to a tight timeline that the 

other circuits have disclaimed; and we, unlike most circuits, do not ever hear 

from the government before making our decision. 

But, despite these shortcomings, published panel orders not only now 

bind all panels of this court—they are also unreviewable. 28 U.S.C. 

§ 2244(b)(3)(E). Litigants may not bring mistakes to the court’s attention 

through petitions for rehearing or petitions for rehearing en banc. Id. Even the 

Supreme Court is powerless to review our decision on a second or successive 

application. Id. Notably, we think that we have the authority to sua sponte 

rehear an order en banc, see In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) 

 

9

 The United States filed its so-called “standing brief” regarding Johnson issues on eleven of 

these dockets. See, e.g., Memorandum of the United States Regarding Applications for Leave to 

File Second or Successive § 2255 Motion Based on Johnson v. United States, In re Starks, 809 

F.3d 1211 (11th Cir. 2016) (per curiam) (No. 15-15493), ECF No. 2. This brief does not respond 

to the particular arguments made by the petitioner. With respect to three of the dockets, the 

government filed briefing particular to the petitioner’s application, but only after the published 

order had issued. The government filed nothing in the remaining dockets reviewed. 

10 This special concurrence speaks only to the procedural infirmities abundant in this Circuit’s 

second or successive process. There are myriad substantive maladies as well. These are 

explained in Judge Martin’s thoughtful special concurrence, which I join in full. 

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(per curiam) (published panel order attempting to defend precedential status of 

published panel orders), and we have done so once before, see In re Johnson, 

815 F.3d 733 (11th Cir. 2016) (en banc) (vacating earlier published panel 

order), but we have no Eleventh Circuit procedures or rules codifying some 

kind of procedure to do so. 

Thus, if we make a mistake in a published panel order—which seems 

quite likely, given the rushed, information-devoid, nonadversarial nature of the 

proceeding—the best a petitioner can hope for is that someone on the court 

notices and sua sponte requests a poll for rehearing en banc, following an 

unknown, rarely-tested procedure to do so. Otherwise, the erroneous order 

binds all future litigants in this Circuit. 

* * * * * 

 Of course, much of the foregoing comes as a necessary result of the 

sheer volume of second or successive applications that this Circuit decides. 

Between 2000 and 2017, we decided 10,565 applications, disposing of at least 

300 each year—3,588 coming in the wake of Johnson between the years of 

2015 and 2017. I do not suggest that we have oral argument or even 

government briefing in each of these proceedings; such a rule would 

overwhelm this court, especially in light of our unique respect for the thirtyday time limit. 

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But these serious limitations in the decision-making process should 

make us reluctant to allow these orders to control the outcome in fully briefed 

and argued merits appeals. And at the very least, the decision to let these panel 

orders bind us should have been made by the full court by way of Circuit Rule. 

However, the St. Hubert panel disagreed, and it promulgated its preferred rule 

in a published opinion. 

Now that the St. Hubert panel has imposed its will on the entire court, 

however, I hope that we will at least add Circuit Rules to mitigate the damage 

to whatever extent possible. Our court needs guidance on when panel orders 

can be published, cf. 11th Cir. R. 36 & I.O.P. 2–9 (outlining publication 

parameters for opinions, not orders), and on the procedures surrounding calling 

for an en banc poll on a published order, cf. Fed. R. App. P. 35; 11th Cir. R. 35 

& I.O.P. 1–9 (specifying en banc polling procedures that revolve around the 

issuance of a mandate, which does not occur for panel orders in the Eleventh 

Circuit). Finally, due to the new paradigm in which any panel order may be 

considered for publication, we should require all orders issuing from this court 

to clearly state their publication status, just as we do for opinions. This will 

eliminate any ambiguity as to the precedential weight to which an order is 

entitled. 

* * * * * 

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 Our country’s legal system “assumes that adversarial testing will 

ultimately advance the public interest in truth and fairness.” Polk Cty. v. 

Dodson, 454 U.S. 312, 318 (1981). Indeed, in other contexts, we disfavor 

nonadversarial ex parte proceedings because they “conflict with a fundamental 

precept of our system of justice.” In re Paradyne Corp., 803 F.2d 604, 612 

(11th Cir. 1986). The rule that this court adopted in St. Hubert takes the 

opposite view: it gives precedential weight to orders resulting from prisoners’ 

abbreviated applications, decided without a government response, in thirty 

days, in an unappealable manner. In doing so, we are running counter to all 

other circuits. The St. Hubert panel gave no justification for this, except that 

published orders should bind if they are “squarely about [a] legal issue.” St. 

Hubert, 883 F.3d at 1328. This is no justification at all, especially in light of 

the institutional concerns noted above. This court should not allow these 

orders to bind merits panels, and I hope that we will reconsider this ill-advised 

rule in the future. 

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MARTIN, Circuit Judge, with whom WILSON and JILL PRYOR, Circuit Judges, 

join, specially concurring: 

I join Judge Wilson’s special concurrence, which eloquently brings to life 

how this court has turned a mere screening duty, assigned to federal courts of 

appeals by 28 U.S.C. § 2244(b)(3), into a rich source of precedent-producing 

opinions that is depriving inmates of a process that could reveal them to be 

wrongfully incarcerated. This is a process our court has debated in recent years, 

and it is one I have certainly come to care about. See United States v. Seabrooks, 

839 F.3d 1326, 1349–50 (11th Cir. 2016) (Martin, J., concurring); In re McCall, 

826 F.3d 1308, 1311–12 (11th Cir. 2016) (Martin, J., concurring). Regrettably, 

this court has now made things tougher for inmates who seek to have courts 

examine the legitimacy of their incarceration, by holding that published orders on 

motions to file second or successive applications are binding on all future appellate 

panels. United States v. St. Hubert, 883 F.3d 1319, 1328–29 (11th Cir. 2018). 

And as Judge Wilson points out, our court is issuing these precedent setting 

opinions without the benefit of adversarial testing, because we are mandated to rule 

within thirty days of the inmate’s filing, and we routinely do so based only on a 

form filled out by the inmate alone. Our method for conducting this screening 

function affects scores of people serving long sentences in Alabama, Florida, and 

Georgia. I share Judge Wilson’s hope that our court reconsiders this practice going 

forward. 

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In addition to sharing Judge Wilson’s views, I write separately to highlight 

how this court’s use of rulings on prisoners’ mere requests to file a second or 

successive application to create binding precedent goes far beyond the prima facie 

examination called for by the statute.1

 The job of courts of appeals in screening 

these motions was never meant to include merits decisions about whether an 

inmate is properly serving a (sometimes significantly) longer sentence because his 

criminal history includes crimes of violence or violent felonies under the elements 

clauses of 18 U.S.C. § 924(c)(3)(A) and (e)(2)(B)(i). 

I. 

When an inmate who has already once asked for habeas relief comes to 

believe there is a legal flaw in the sentence he is serving, the statute requires him to 

get permission from our court before he can go back to District Court to seek 

relief. In asking us for that permission, by way of a motion filed in our court, the 

prisoner briefly summarizes why he should be allowed to file a second or 

successive application. And when his request is based on a new rule of 

constitutional law, the statute makes our review of this request quite narrow. Our 

role is to “certif[y]” when the inmate makes “a prima facie showing” that the 

 

1

 Although I do not find it the most natural fit, I use the terminology of the statute to distinguish 

“motions,” which are requests filed in the courts of appeals for permission to file a second or 

successive application seeking relief from a prison sentence. Section 2244 refers to the actual 

filing that seeks relief, the § 2254 petitions and § 2255 motions filed in district courts, as the 

“applications,” and I will do so as well. See 28 U.S.C. §§ 2244, 2254, 2255. 

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proposed application will “contain . . . 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

Although our inquiry is narrow, there are a couple of things required of us. 

First, we look to identify whether the prisoner is seeking relief based on a “new 

rule of constitutional law.” 28 U.S.C. § 2255(h)(2). Second, we look to see if that 

new rule has been “made retroactive to cases on collateral review by the Supreme 

Court.” Id. Our court has referred to these two requirements as the “minimum 

showing” necessary to file a second or successive application. In re Holladay, 331 

F.3d 1169, 1173 (11th Cir. 2003).3

A second or successive § 2255 motion must also identify, or “contain,” this 

new constitutional rule. 28 U.S.C. § 2255(h). The exact meaning of this 

requirement is unsettled across the circuits. In Holladay, this court held that a 

“requisite showing” was “a sufficient showing of possible merit to warrant a fuller 

 

2

 Motions for leave to file a second or successive § 2254 application must make a similar 

showing that the application “relies 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)(2)(A) (emphasis added); see also In re Arnick, 826 F.3d 787, 789 n.2 (5th Cir. 2016) 

(Elrod, J., dissenting) (discussing the Fifth Circuit’s holding that the provisions establish 

identical legal standards). 

3

 Most of the published decisions from other circuits applying the gatekeeping function in the 

context of new rules of constitutional law address these two questions. See, e.g., Ezell v. United 

States, 778 F.3d 762, 767 (9th Cir. 2015) (holding Descamps v. United States, 570 U.S. 254, 133 

S. Ct. 2276 (2013), did not announce a new rule of constitutional law); In re Payne, 733 F.3d 

1027, 1029 (10th Cir. 2013) (holding Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 

(2013), announced a new rule of constitutional law but had not been made retroactive on 

collateral review by the Supreme Court). 

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exploration by the district court.” 331 F.3d at 1173–74 (adopting the standard set 

in Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). We elaborated that 

“if in light of the documents submitted with the application it appears reasonably 

likely that the application satisfies the stringent requirements for the filing of a 

second or successive petition, we shall grant the application.” Id. at 1173 

(quotations omitted and alterations adopted). 

Very few opinions from our circuit or others grapple with the meaning of 

“prima facie showing” or what it means to “contain” a new rule of constitutional 

law. The few that do agree that the statute establishes a permissive standard that 

does not require any analysis of a claim’s merits. See Ochoa v. Sirmons, 485 F.3d 

538, 541–42 (10th Cir. 2007) (per curiam) (“This statutory mandate does not direct 

the appellate court to engage in a preliminary merits assessment. Rather, it focuses 

our inquiry solely on the conditions specified in § 2244(b) that justify raising a 

new habeas claim . . . .”). In this vein, the Third Circuit stated that whether an 

application “relies on” a new rule cannot be based on “whether the claim has merit, 

because [the Third Circuit does] not address the merits at all in [its] gatekeeping 

function.” In re Hoffner, 870 F.3d 301, 308 (3d Cir. 2017). And in the Fifth 

Circuit, Judge Elrod, writing in dissent, observed that “where the movant seeks a 

non-frivolous extension of a new rule of constitutional law that the Supreme Court 

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21 

has made retroactive, our review should be complete.” In re Arnick, 826 F.3d 787, 

791 (5th Cir. 2016) (Elrod, J., dissenting) (emphasis omitted). 

The plain language of the statute shows that it sets a less demanding 

standard for allowing a second or successive application than for allowing appeals 

from rulings of District Courts in habeas corpus proceedings. I have pointed to the 

different standards set by the statute in the past. In re Saint Fleur, 824 F.3d 1337, 

1343 (11th Cir. 2016) (Martin, J., concurring). In order to appeal District Court 

rulings on a habeas corpus proceeding, the statute requires either a District or 

Circuit judge to certify that the inmate has “made a substantial showing of the 

denial of a constitutional right” and indicate which “issue or issues satisfy” this 

requirement. 28 U.S.C. § 2253(c)(2)–(3). This certification, which an inmate must 

have for a habeas appeal, is designated by the statute as a Certificate of 

Appealability. 28 U.S.C. § 2253(c)(1). And this certification contrasts with the 

motion seeking “[p]ermission to file a second or successive § 2255 petition 

[which] merely requires a ‘prima facie showing’ that [the] petition will ‘contain a 

new rule of constitutional law, made retroactive to cases on collateral review by 

the Supreme Court.’” Saint Fleur, 824 F.3d at 1343 (Martin, J., concurring) 

(alterations adopted) (quoting 28 U.S.C. §§ 2244(b)(3)(C), 2255(h)(2)). The plain 

meaning of the text of the statute “invites even less of an inquiry into the merits of 

the proposed claim than the standard for a” Certificate of Appealability. Id. 

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Congress was well aware of the effect of the standard for getting a Certificate of 

Appealability, when in the same Act, it chose to adopt a textually less demanding 

standard for motions for leave to file second or successive applications. See Slack 

v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1603 (2000) (explaining that 

AEDPA largely codified the standard for granting certificates of probable cause 

announced in Barefoot v. Estelle, 463 U.S. 880, 894, 103 S. Ct. 3383, 3395 

(1983)); Bennett, 119 F.3d at 469 (referring to the lack of guidance from “statutory 

language or history or case law” on the prima facie showing standard adopted in 

AEDPA). 

Consistent with the statute’s command, our sister circuits have largely 

refrained from deciding the merits of a particular applicant’s claim at the motion 

stage. See, e.g., Morris v. United States, 827 F.3d 696, 699 (7th Cir. 2016) 

(Hamilton, J., concurring in the grant of an application) (“I think the best course 

for now, in this and similar cases where application of ACCA depends on an 

attempt conviction, is to grant the application to allow further development of the 

attempt issue in the district courts.”); In re Williams, 759 F.3d 66, 70–71 (D.C. 

Cir. 2014) (“The government’s argument concerning the application of the new 

rule in Graham [v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010)] to this case, i.e., 

how Graham applies to a case concerning a crime that straddled the age of 

majority, is a question for the district court in the first instance, not the court of 

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23 

appeals.”). So although the exact meaning of “contain” as used in § 2255(h) is not 

settled law, it is clear that “the merits” of a proposed claim “are not relevant to 

whether [the applicant] can obtain permission to bring a second or successive 

§ 2255 motion.” In re Joshua, 224 F.3d 1281, 1282 n.2 (11th Cir. 2000) (per 

curiam). It is hard to measure the harm done in recent years to inmates sentenced 

in this circuit by this court’s failure to heed this prohibition. 

II. 

After Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), over 

two thousand inmates filed motions with this court seeking relief because the 

residual clause of the Armed Career Criminal Act was invalidated in Johnson v. 

United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). In most all of these 

thousands of post-Welch motions, inmates asserted they were serving sentences, 

made longer due to their criminal history, including prior convictions which had 

been deemed “violent” by the sentencing judge. Our job was to decide whether 

each of these inmates made the prima facie showing that their application 

“contain[ed]” the new rule of constitutional law announced in Johnson. It seemed 

clear that any given application failed to “contain” a Johnson claim when it did 

nothing more than cite Johnson. In re Thomas, 823 F.3d 1345, 1348 (11th Cir. 

2016) (per curiam). But see Ochoa, 485 F.3d at 545 (referencing “efforts to inject 

a merits-related element” into the § 2244(b)(2) review, but recognizing this would 

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require an “amendment of the statute, which is the province of Congress, not the 

courts.”). But because Johnson was so recently decided, we had little precedent 

about whether the criminal history of these inmates still qualified them as violent 

offenders after the demise of the residual clause. So in ruling on this mass of 

motions, our court had to decide whether to allow an inmate to proceed to District 

Court for evaluation (i.e., grant his motion) where no binding precedent dictated 

whether his predicate crime should have resulted in a longer sentence. Also, we 

had to decide the extent to which we ourselves should try and reimagine an 

inmate’s original sentencing, now with the punitive statute rewritten as per 

Johnson. 

In answering these questions, our guiding star should have been the “text 

and context” of §§ 2244(b)(C)(3) and 2255(h) as well as “equity.” Hoffner, 870 

F.3d at 308–09. But despite the narrow role given us by those statutes, when our 

court receives Johnson motions, I’ve observed that we “comb[] through sealed 

records from the prisoner’s original sentence hearing and go[] ahead to make a 

decision about whether the prisoner will win if we let him file his § 2255 motion in 

district court.” In re Clayton, 829 F.3d 1254, 1257 (11th Cir. 2016) (Martin, J., 

concurring). Ultimately our court ruled to require us to decide the merits of 

whether the inmate had been more harshly sentenced based on the surviving parts 

of the Armed Career Criminal Act, as opposed to the portion that was invalidated 

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by the Supreme Court in Johnson. See, e.g., Thomas, 823 F.3d at 1349 (denying a 

motion for a second or successive § 2255 motion after looking back to the 

sentencing record to say that the District Court did not rely on the portion of the 

Armed Career Criminal Act invalidated by the Supreme Court in Johnson). This 

test is simply more demanding than the prima facie showing called for under the 

statute. See Saint Fleur, 824 F.3d at 1343 (Martin, J., concurring); Ochoa, 485 

F.3d at 546 (holding that the only relevant question is “the satisfaction of the 

conditions specified in § 2244(b)(2)(A)”). By adopting this practice, this court 

routinely rejects motions from inmates who believe they are serving sentences 

unlawfully prolonged based on a statute that has now been declared 

unconstitutional. 

Our court entered hundreds of orders denying motions based on this merits 

inquiry, thus touching many lives. Most perniciously, by my count, this court has 

published eight opinions going beyond the prima facie showing standard to hold 

(for the first time, and now thanks to St. Hubert, in a binding and precedential 

decision) that a particular crime was a “crime of violence” or a “violent felony” 

under the elements clauses in § 924(c)(3)(A), (e)(2)(B)(i), or United States 

Sentencing Guideline § 4B1.2(a). See In re Hines, 824 F.3d 1334, 1337 (11th Cir. 

2016) (per curiam) (bank robbery in violation of 18 U.S.C. § 2113(a), (d)); Saint 

Fleur, 824 F.3d at 1341 (Hobbs Act robbery); In re Colon, 826 F.3d 1301, 1305 

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(11th Cir. 2016) (per curiam) (aiding-and-abetting Hobbs Act robbery); In re 

Smith, 829 F.3d 1276, 1280 (11th Cir. 2016) (per curiam) (carjacking in violation 

of 18 U.S.C. § 2119); In re Watt, 829 F.3d 1287, 1290 (11th Cir. 2016) (per 

curiam) (aiding-and-abetting assaulting a postal employee); In re Sams, 830 F.3d 

1234, 1239 (11th Cir. 2016) (per curiam) (bank robbery in violation of 18 U.S.C. § 

2113(a)); In re Burgest, 829 F.3d 1285, 1287 (11th Cir. 2016) (per curiam) 

(Florida manslaughter and kidnapping).4 This practice has continued as recently as 

this past March. In In re Welch, 884 F.3d 1319 (11th Cir. 2018), a panel held, as a 

matter of first impression, that Alabama first degree robbery and Alabama first 

degree assault categorically qualify as violent crimes under the elements clause of 

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Id. at 1324. This led 

to the panel’s holding that Mr. Welch “has three prior qualifying ACCA 

convictions that survive Johnson’s invalidation of the residual clause, which means 

that his application fails to make a prima facie showing that he is entitled to relief 

under Johnson.” Id. at 1325. The court that sentenced Mr. Welch had no 

opportunity to consider his claim that Johnson entitled him to relief. 

 

4

 Some of these decisions were issued over a dissent, which would ordinarily require oral 

argument under this circuit’s rules. See 11th Cir. R. 34-3(b)(3); see also Colon, 826 F.3d at 1308 

(Martin, J., dissenting) (“Deciding the merits of not-yet-filed § 2255 motions in this way is 

especially dangerous in cases like Mr. Colon’s that turn on a complex question of first 

impression.”); Smith, 829 F.3d at 1285 (Jill Pryor, J., dissenting) (“We certainly have never held 

that the [carjacking] statute would qualify categorically even setting aside the residual clause in 

§ 924(c). It would be impractical and imprudent to decide this complex question in the first 

instance here.”). 

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This circuit’s practice of ruling on motions in such a way as to create 

binding precedent that a given conviction must count as a “crime of violence” or a 

“violent felony” for federal sentencing purposes is an outlier from the practice of 

other circuits.5

 This practice also reflects a split among circuits about how to 

perform the gatekeeping function of §§ 2244(b)(3)(C) and 2255(h). 

Compare Ochoa, 485 F.3d at 543, with In re Williams, 826 F.3d 1351, 1357 (11th 

Cir. 2016) (declining to grant a motion where the applicant “made a prima facie 

showing under Johnson as to Count 3” but could not show “that he would ‘benefit’ 

from Johnson, since he received a concurrent mandatory life sentence on Count 1 

that . . . is unaffected by Johnson”). And this circuit’s outlier status is particularly 

worrisome in this context, where the statute denies prisoners the ability to seek 

review by way of an appeal or a writ of certiorari to the Supreme Court. See 28 

U.S.C. § 2244(b)(3)(E). In light of this limitation and the lack of uniformity 

among federal appeals courts, this issue may be the proper subject for certifying a 

question to the Supreme Court about the correct application of the prima facie 

showing standard. See 28 U.S.C. § 1254(2) (permitting certified questions from 

courts of appeals); Felker v. Turpin, 518 U.S. 651, 667, 116 S. Ct. 2333, 2342 

 5

 I’ve found only two published decisions from other circuits that made similar decisions 

on second or successive applications. In re Irby, 858 F.3d 231, 234 (4th Cir. 2017); Dawkins v. 

United States, 809 F.3d 953, 954, 956 (7th Cir. 2016). In Dawkins, Judge Ripple dissented, 

arguing that the application “raise[d] an important question” that should be “address[ed] more 

carefully than the time constraints statutorily imposed on [] consideration of motions under 28 

U.S.C. § 2244(b)(3)(B) permit.” Id. at 956 (Ripple, J., dissenting). 

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(1996) (Souter, J., concurring) (suggesting a certified question would be 

appropriate “if the courts of appeals adopted divergent interpretations of the 

gatekeeper standard” of § 2244(b)). 

In the meantime, we compound these problems by making decisions on 

motions for leave to file second or successive applications binding precedent 

outside of that context. Already now, as a result of St. Hubert’s holding and the 

eight erroneous decisions I’ve identified above, all judges of this court are 

prohibited from giving inmates the type of merits review of their sentences that 

inmates routinely receive in other circuit courts of appeal. 

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