[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19-12538-J

________________________ IN RE: DREW JAMAL POLLARD, 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: ED CARNES, Chief Judge, T JOFLAT, and ROSENBAUM, Circuit Judges.
B Y T H E P A N E L: Drew Jamal Pollard has filed an a pplication seeking an order au thorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence. See 28 U.S.C. §§ 2255(h), 2244(b)(3)(A).
I. BACKGROUND In 2009, Pollard pleaded guilty to committing armed robbery of a credit union in violation of 18 U.S.C. § 2113(a) a nd (d), and carrying, using, and brandishing a firearm during a crime of violence (the armed r obbery of the credit union) in vi olation of 18 U.S.C. § 924(c)(1)(A) and (B)(i). The dist rict court sentenced him to 180 months in prison and 5 years of supervised release. Pollard did not appeal.

Case: 19-12538 Date Filed: 07/31/2019 Page: 1 of 62 Since his conviction and sentenc e became final, Pollard has fi led two 28 U.S.C. § 2255 motions challenging his § 924(c) c onviction and sentence. In h is first § 2255 motion, Pollard claimed that he was actually innocent because he did not use or brandish a firearm while robbing the credit union, and that his c ounsel was ineffective for advi sing him to plead guilty to that crime despite his innocence. T he district court dismissed that motion as untimely, and both the district court and this Court de nied Pollard a certificate of a ppealability. See Pollard v. United States, No. 13-15114 (11th Cir. M ay 8, 2014). In his second § 2255 motion, Pollard claimed that his conviction and sentence were unconstitutional in light of the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 ( 2018). The district court found that motion to be untimely as well and concluded that it was also without merit. Again, b oth the district court and this Court denied Pollard a certifi cate of appealability. See Polla rd v. United States, No. 18-12948 (11th Cir. Jan. 9, 2019). Pollard now asks this Court for permission to file a third § 2 255 motion, contending that his § 924(c) conviction and sentenc e are unconstitutional in li ght of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019).
II. DISCUSSION This Court may only grant an a pplication to file a second or s uccessive § 2255 motion if the motion contains a claim involving: (1) newly discovered evidence that, if proven and viewed in lig ht of the evidence as a whole, would be sufficient to establish by clear and convi ncing evidence that no reasonable factfinder woul d 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 wa s previously unavailable. Case: 19-12538 Date Filed: 07/31/2019 Page: 2 of 63 28 U.S.C. § 2255(h). We may “authorize the filing of a second or successive application only if [we] determine[] that the application makes a prima fac ie showing that the application satisfies the r equirements” of § 2255(h). Id. § 22 44(b)(3)(C). When an applicant contends that his motion contains a claim in volving a new rule of constitutional law for purposes of § 2255(h)(2), the prima f acie showing that he must make is twofold. He not only ha s to show that the decision he is relying on announced a new rule of constitutional law, that the rule has been made ret roactive by the Supreme Court, and that it was previously unavailable; he must also sho w that there is a “reasonable likelihood” that he will benefit from the rule. See In re Hire s, 825 F.3d 1297, 1299 (11th Cir. 2016) (“When a petitioner s eeks leave to pursue a successi ve § 2255 motion under § 2255(h)(2), we have held that a petitioner must demonstrate a ‘reasonable likelihood’ that they will benefit from a new, retroactive, and previously unavailable constitutional rule in order to make a prima facie showing that their applicat ion satisfies the requirements of §§ 2244(b) and 2255(h).”). Otherwise, “any prisoner could b ring a second or successive petition based on a new constitutional rule made ret roactive on collateral review by the Supreme Court, even if it had no bearing on his case.” See In re Henry, 757 F.3d 1151, 1162 (11th Cir. 2014). There is no question that Pollard can make the first showing. This Court recently held in a published decision that Davis is a new rule of consti tutional law and that the Supreme Court has made it retroa ctive to cases on collateral re view. In re Hammoud, No. 19-12458, — F.3d —, 2019 WL 3296800 (11th Cir. July 23, 2019). The problem for Pollard is that he cannot show a “reasonable likelihood” that h e would benefit from the Davis rule. See Hires, 825 F.3d at 1299. And that is because Davis addressed only

Case: 19-12538 Date Filed: 07/31/2019 Page: 3 of 64 § 924(c)(3)(B)’s residual clause, but the companion crime for w hich Pollard was convicted (armed robbery of a credit union) qualifies as a “crime of viol ence” under § 924(c)(3)(A)’s use-of-force clause. After the Supreme Court deci ded Johnson v. United States, 135 S . Ct. 2551 (2015), this Court held that in order for a n applicant to show that there wa s a “reasonable likelihood” that he would benefit from the new rule, he needed to show that he migh t have been sentenced under the ACCA’s residual clause. S ee Hires, 825 F.3d at 1299 (“[I]t is not enough for a federal prisoner to simply cite Johnson as the basis for the claim or claims he seeks to raise in a second or successive § 2255 motion, but he also must show that he was sen tenced, at least in part, under the residual clause and thus that he falls within the new subst antive constitutional rule announced in Johnson.”). And we held that an applicant could not make th at showing if (1) “the sentencing court affirmatively made a findi ng that an applicant’s ACCA pre dicate offenses qualified under either enumerated crimes clause o r elements clause,” or (2) “bi nding precedent clearly classifies an offense that the applicant’ s sentencing court found to be an ACCA predicate as either an elements or enumerated crimes clause offense.” In re Rogers, 8 25 F.3d 1335, 1339 (11th Cir. 2016). In other words, where the record or curre nt binding pre cedent clearly establishes that an enhanced sentence was not based on the residual clause Johnson struck down, the applicant could not make a prima facie show ing that he fell within the sc ope of Johnson and his application had to be denied. See e.g., In re Welch, 884 F.3d 1319, 1321 (11th Cir. 2018); Rogers, 825 F.3d at 1340–41; Hires, 825 F.3d at 1303–04; In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016); In re Robinson, 822 F.3d 1196, 1197 (11th Cir . 2016). After Johnson was issued, but before the Supreme Court decided Davis, some federal prisoners contended that the ne w rule from Johnson applied to § 924(c)(3)(B)’s residual clause

Case: 19-12538 Date Filed: 07/31/2019 Page: 4 of 65 because its wording was similar to the wording of the ACCA’s re sidual clause. In denying some of those applications, we reasoned that even if § 924(c)(3 )(B)’s residual clause was no longer valid in light of Johnson, t he applicant could not show that he would benefit from Johnson because the companion crime for which he was convicted qualifie d as a crime of violence under § 924(c)(3)(A)’s use-of-force cl ause. See In re Fleur, 824 F.3 d 1337, 1340 (11th Cir. 2016) (“[E]ven if Johnson’s rule about t he ACCA residual clause appli es to the § 924(c)(3)(B) residual clause, [the applican t’s] claim does not meet the statutory cri teria for granting this § 2255(h) application. This is because [the applicant’s] companion convi ction . . . clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3 )(A).”); see also In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016) (“[W]here it is clear that a § 924(c) conviction is based on an underlying offense that satisfies t he statute’s force clause, w e have said so and, in those cases, we have denied the application for a second or successive § 225 5 motion.”). Just as that reasoning applied t o Johnson applications, it appl ies to Davis applications. If the companion crime for which a n applicant was convicted qualif ies as a crime of violence under § 924(c)(3)(A)’s use-of-force clau se, that applicant cannot sho w that there is a “reasonable likelihood” that he will benefit from the rule announced in Dav is. See Hires, 825 F.3d at 1299. And if the applicant cannot show t hat there is a “reasonable li kelihood” that he will benefit from Davis, he cannot make a prima f acie showing that his applicatio n satisfies the requirements of § 2255(h)(2), even though Davis is a new rule of constitutional law that was made retroactively applicable by the Supreme Court and was previously unavailable. Id. Pollard is one of the applicants to whom that analysis applies. The crime that served as the companion for Pollard’s § 924(c) conviction was armed robbe ry of a credit union, in violation of 18 U.S.C. § 2113(a) and (d). That statute also cr iminalizes armed robbery of a

Case: 19-12538 Date Filed: 07/31/2019 Page: 5 of 66 bank; in fact, it treats banks a nd credit unions as interchange able. 1 This Court has already held that armed robbery of a bank qualifies as a crime of violence u nder § 924(c)(3)(A)’ s use-of-force clause. In re Hines , 824 F.3d 1334, 1336–37 (11th Cir. 2016) ( denying application with Johnson-based challenge to appl icant’s § 924(c) conviction beca use “his § 924(c) conviction on Count 2 was explicitly based on hi s companion Count 1 convictio n for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d),” and “a conviction fo r armed bank robbery clearly meets the requirement for an underlying felony offense, as set out in § 924(c)(3)(A)”). So armed robbery of a credit union a lso qualifies as a crime of vi olence under § 924(c)(3)(A)’s useof-force clause. As a result, P ollard cannot show that the Sup reme Court’s invalidation of § 924(c)(3)(B) in Davis benefits hi m in any way. His applicati on for leave to file a second or successive motion is hereby DENIED.

1 18 U.S.C. § 2113(a) states: “W hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or mone y or any other thing of value bel onging to, or in the care, custody, control, management, or posse ssion of, any bank, credit union, or any savings and loan association . . . [s]hall be fine d under this title or imprison ed not more than twenty years, or both.” (Emphasis added.)

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