[PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS 

 FOR THE ELEVENTH CIRCUIT 

 ________________________ 

 No. 16-12519-J 

 ________________________ 

IN RE: KEITH DEVON ADAMS, 

Petitioner. 

 __________________________ 

 Application for Leave to File a Second or Successive 

Motion to Vacate, Set Aside, 

or Correct Sentence, 28 U.S.C. § 2255(h) 

_________________________ 

Before: TJOFLAT, WILSON and JILL PRYOR, Circuit Judges. 

B Y T H E P A N E L: 

Keith Devon Adams seeks authorization to file a second or successive 28 

U.S.C. § 2255 motion. He can file such a motion only if it is “certified . . . by a 

panel of the appropriate court of appeals to contain” either: 

(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 

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(2) 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. § 2255(h). “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). 

I. 

 Mr. Adams was sentenced under the Armed Career Criminal Act (“ACCA”), 

which requires a higher prison sentence if a defendant convicted of being a felon in 

possession of a firearm has three or more previous convictions for a “violent 

felony.” 18 U.S.C. § 924(e)(1). The ACCA provides three definitions of “violent 

felony.” First, § 924(e)(2)(B)(i) covers any offense that “has as an element the use, 

attempted use, or threatened use of physical force against the person of another.” 

This is known as the “elements clause.” Second, § 924(e)(2)(B)(ii) covers any 

offense that “is burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of physical injury 

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to another.” The first 9 words of that subsection are called the “enumerated crimes 

clause,” and the last 13 are called the “residual clause.” 

Without noting under which clause each prior conviction fell, Mr. Adams’s 

presentence investigation report (“PSI”) stated that the ACCA enhancement 

applied based on: (1) a 2001 Florida conviction for “robbery/carjacking”; (2) a 

2005 Florida conviction for burglary of an unoccupied dwelling; and (3) a 2008 

Florida conviction for possession of cocaine with intent to sell or deliver. Mr. 

Adams objected to the PSI’s application of the ACCA enhancement. Among other 

challenges, Mr. Adams objected to the use of his prior burglary conviction as an 

ACCA predicate offense. He acknowledged the fact that burglary is enumerated in 

the ACCA’s definition of violent felony, but he objected on the ground that a 

property crime must involve a serious potential risk of physical injury in order to 

be classified as a violent felony. After the government responded, asserting that 

the objection was due to be overruled under prevailing caselaw, the probation 

officer noted that the issue of whether Mr. Adams’s burglary conviction qualified 

as a predicate offense was unresolved. At sentencing, the district court overruled 

Mr. Adams’s objection and imposed the ACCA enhancement. The court did so 

without stating under which clause of the ACCA Mr. Adams’s burglary conviction 

fell. 

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 In the instant application, Mr. Adams contends that his ACCA-enhanced 

sentence is void in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in 

which the Supreme Court held that the residual clause of the ACCA is 

unconstitutionally vague. The Supreme Court has determined that Johnson’s 

holding is a new substantive rule of constitutional law that applies retroactively to 

cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268 

(2016). Specifically, Mr. Adams asserts that his Florida burglary conviction 

cannot serve as a predicate offense for the ACCA enhancement in light of Johnson. 

For the reasons that follow, we conclude that Mr. Adams has made the requisite 

prima facie showing because his prior Florida conviction for burglary of an 

unoccupied dwelling may not qualify as a valid predicate offense after Johnson. 

II. 

Under Florida’s burglary statute, a person who unlawfully enters or remains 

in a dwelling, structure, or conveyance with intent to commit a crime commits 

burglary. Fla. Stat. § 810.02. The law defines “structure,” in relevant part, as “a 

building of any kind, either temporary or permanent, which has a roof over it, 

together with the curtilage thereof.” Id. § 810.011(a)(1). It defines “dwelling” 

similarly. See id. § 810.011(a)(2). “Conveyance” does not contemplate a building 

at all: it includes motor vehicles, ships, vessels, railroad cars, and aircrafts. Id.

§ 810.011(a)(3). 

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 It is unclear from the record which clause of the ACCA the district court 

employed when it concluded that Mr. Adams’s prior burglary conviction qualified 

as a predicate offense. But Mr. Adams specifically lodged an objection, which the 

district court overruled, to the classification of the burglary conviction as a residual 

clause offense. Mr. Adams’s acknowledgement that burglary was an enumerated 

ACCA offense does not appear to have been intended as a concession that his 

Florida burglary conviction qualified as such; indeed, the probation office 

specifically stated that the issue of whether it qualified was unresolved. The record 

we have available to us is limited at this stage, but there is at least some suggestion 

that the district court considered Mr. Adams’s burglary conviction a residual clause 

offense. 

Moreover, at the time Mr. Adams was sentenced, a conviction under 

Florida’s burglary statute was deemed an ACCA predicate under the residual 

clause, rather than the elements clause or the enumerated crimes clause. The 

statute contains no element of “attempted use, or threatened use of physical force 

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). And, prior to 

Johnson, the Supreme Court had suggested that a burglary as defined by Florida 

law is not a violent felony under the ACCA’s enumerated crimes clause. See 

James v. United States, 550 U.S. 192, 212 (2007). For a burglary statute to qualify 

under that clause, “the least of the acts criminalized” under the statute must be 

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“encompassed by the generic federal offense” of burglary. Moncrieffe v. Holder, 

133 S. Ct. 1678, 1684 (2013). Generic burglary as delineated in the enumerated 

crimes clause is defined as an offense “having the basic elements of unlawful or 

unprivileged entry into, or remaining in, a building or structure, with intent to 

commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). In James, 

the Supreme Court “agree[d] that the inclusion of curtilage takes Florida’s 

underlying offense of burglary outside the definition of generic burglary set forth 

in Taylor, which requires an unlawful entry into, or remaining in, a building or 

other structure.” 550 U.S. at 212. 

The Supreme Court also concluded in James that a Florida burglary 

conviction was a violent felony under the ACCA’s residual clause. Id.; accord 

United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006) (holding that a 

Florida conviction for burglary of the curtilage constituted a violent felony under 

the ACCA’s residual clause). In Matthews, we, like the Supreme Court in James, 

determined that the Florida burglary statute was broader than generic burglary 

because an individual could violate it without ever entering a structure, an element 

the generic crime required. See id. at 1275. Further, the statute does not appear to 

be divisible such that it still could be violated in a way that comports with the 

generic definition of burglary. Rather than setting out the critical place-of-entry 

element in the alternative—i.e., “a building or its curtilage”—the place-of-entry 

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element encompasses a “building of any kind, either temporary or permanent, 

which has a roof over it, together with the curtilage thereof.” Fla. Stat. 

§ 810.011(a)(1).

This line of cases was the only binding legal basis for applying the ACCA to 

Mr. Adams based on his burglary conviction. In the absence of any record 

evidence to the contrary, the status of the law at the time Mr. Adams was 

sentenced—in addition to the nature of his objection at sentencing—suggests that 

his sentence may have been enhanced under the residual clause. Under Johnson, 

Mr. Adams’s residual clause enhanced sentence is void. And his burglary 

conviction likely cannot serve as a predicate offense under the enumerated crimes 

clause as an alternative. See Descamps v. United States, 133 S. Ct. 2276 (2013). 

We recognize that, in In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 

3002293 (11th Cir. May 25, 2016), this Court concluded that Descamps did not 

itself announce a new rule of constitutional law sufficient to satisfy § 2255(h)(2). 

And, in In re Thomas, Nos. 16-12065, 16-12649, __ F.3d __, 2016 WL 3000325 

(11th Cir. May 25, 2016), this Court concluded that Johnson did not invalidate the 

use of a burglary conviction for ACCA purposes when the district court expressly 

relied on the enumerated offenses clause, not the residual clause, in imposing the 

enhancement, and the applicant asserted a standalone Descamps claim. 

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However, Griffin and Thomas do not preclude our consideration of 

Descamps here. In this case, the sentencing court may have relied on the residual 

clause in imposing Mr. Adams’s sentence based on his prior Florida burglary 

conviction. Thus, his sentence may be invalid under Johnson. In Griffin, Johnson

was inapplicable because the petitioner was sentenced under the Guidelines, and in 

Thomas, Johnson was inapplicable because the district court clearly did not rely on 

the residual clause. Accordingly, the petitioners were forced to rely on Descamps

as a standalone claim. In contrast, Mr. Adams’s claim implicates Johnson, and the 

ambiguity surrounding the sentencing court’s decision requires us to look to the 

text of the relevant statutes, including the ACCA, to determine which, if any, 

ACCA clauses Mr. Adams’s prior convictions fall under. In fulfilling this duty, we 

should look to guiding precedent, such as Descamps, to ensure we apply the 

correct meaning of the ACCA’s words. See Rivers v. Roadway Express, Inc., 511 

U.S. 298, 313 n.12 (1994) (“[W]hen this Court construes a statute, it is explaining 

its understanding of what the statute has meant continuously since the date when it 

became law.”). Although Descamps bears on this case, it is not an independent 

claim that is itself subject to the gatekeeping requirements. 

Mr. Adams, therefore, has made a “sufficient showing of possible merit” to 

warrant fuller exploration by the district court of his Johnson claim. In re 

Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (internal quotation marks 

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omitted). Our record, of course, is incomplete at this stage. Moreover, “[w]e do 

not hear from the government,” the applicant lacks a meaningful opportunity to 

brief the merits of his case, and we “do not have the time necessary to decide 

anything beyond the prima facie question” because § 2244(b)(3)(D) instructs us to 

render a decision on Mr. Adams’s application within 30 days. Jordan, 485 F.3d at 

1358. Rather, we are exercising a screening function in adjudicating Mr. Adams’s 

application. Our “limited determination” does not bind the district court, which is 

to decide the “issues fresh, or in the legal vernacular, de novo.” In re Moss, 703 

F.3d 1301, 1302 (11th Cir. 2013). 

APPLICATION GRANTED. 

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