[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 16710

________________________ D.C. Docket No s . 4:16

- cv - 00143

- HLM , 4:08

- cr - 00038

- HLM

- WEJ

- 1

JEFFREY BERNARD BEEMAN, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

___________________ _____ Appeal from the United States District Court for the Northern District of Georgia

________________________ (September 22, 2017 ) Before JULIE CARNES and EDMONDSON, Circuit Judges, and WILLIAMS, ∗ District Judge.
JULIE CARNES, Circuit Judge:

∗ The Honorable Kathleen M. Williams, of the Southern District of Florida, sitting by designation. Case: 16-16710 Date Filed: 09/22/2017 Page: 1 of 332 In 2009 Jef frey Bernard Beeman was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g), and possession with intent to distribute a mixture or substanc e containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Finding that Beeman was subject to enhanced sentences for his firearm and ammunition offenses under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), th e district court imposed three concurrent 210

- month sentences. In 2016 Beeman filed a 28 U.S.C. § 2255 motion to vacate his sentence, contending that he was entitled to resentencing because in Johnson v. United States , 576 U.S. __, 135 S. Ct. 2551 (2015) , the Supreme Court had struck down part of the ACCA as unconstitutionally vague. The district court denied his motion, and Beeman has appealed. I. BACKGROUND In 1990 Beeman was convicted in Georgia of aggravated assault. In 1999 he was convicted in Geor gia of two counts of possession of cocaine with intent to distribute. Then, in 2009, he was convicted of the federal firearm, ammunition, and drug offenses giving rise to the 210

- month sentences that he is challenging in his § 2255 motion.

Case: 16-16710 Date Filed: 09/22/2017 Page: 2 of 333 Normally a conviction for being a felon in possession of a firearm or ammunition carries a statutory maximum sentence of ten years. 18 U.S.C. § § 922(g), 924(a)(2). But if a defendant who is convicted of one of those offenses already has three or more convictions fo r a “violent felony” or a “serious drug offense,” the ACCA provides that he must be sentenced to at least 15 years of imprisonment. Id. § 924(e)(1). When Beeman was sentenced in 2009, the ACCA defined a “violent felony” as follows: [A] ny crime punishable by imprisonment for a term exceeding one year . . . that

— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or o therwise involves conduct that presents a serious potential risk of physical injury to another

. . . . Id. § 924(e)(2)(B). The first prong of that definition, § 924(e)(2)(B)(i), is known as the “elements clause.” Mays v. United States , 817 F.3d 728, 730

– 31 (11th Cir. 2016). The second prong, § 924(e)(2)(B)(ii), is itself split into two clauses. The first part, listing burglary, arson, extortion, or an offense involving the use of explosives, is known as the “enumerated offenses clause,” and the second part is known as the “residual clause.” Id. Beeman’s presentence investigation report (PSR) listed his conviction for aggravated assault and two convictions for possession of cocaine with intent to

Case: 16-16710 Date Filed: 09/22/2017 Page: 3 of 334 distribute and concluded that, based on those convictio ns, he qualified for the ACCA enhancement. Beeman did not object to that recommendation , and the district court adopted it without further discussion. The PSR did not recommend whether the aggravated assault conviction should be found to be a violent fel ony for ACCA purposes under the elements clause or the residual clause or both, and the district court did not specify whether its finding that the conviction qualified was based on the elements clause or the residual clause or both. Beeman appealed his convictions but not his sentences, and on July 8, 2010, this Court affirmed. United States v. Beeman , 386 F. App’x 827, 835 (11th Cir. 2010). On June 26, 2015, the United States Supreme Court held that the ACCA’s residual clause is unconst itutionally vague. Johnson , 135 S. Ct. at 2563 . And in April 2016, the Court held that the Johnson decision is retroactively applicable to cases on collateral review. Welch v. United States , 578 U.S. __, 136 S. Ct. 1257, 1268 (2016). On June 7, 2016, Beeman filed his § 2255 motion, attacking his ACCA

enhanced sentences for his firearm and ammunition offenses. His argument proceeded in three parts. First, he contended that the Johnson decision invalidated his ACCA sentences because when he was sentenc ed in 2009 his Georgia conviction for aggravated assault would have qualified as a violent felony under the residual clause of the ACCA. Second, he pointed out that his aggravated

Case: 16-16710 Date Filed: 09/22/2017 Page: 4 of 335 assault conviction was not a violent felony under the enumerated offenses c lause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elemen ts clause he relied heavily on the Supreme Court’s 2013 decision in Descamps v. United States , 570 U.S. __, 133 S. Ct. 2276 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifie s as a predicate offense under the ACCA’s enumerated offenses and elements clauses. See Mathis v. United States , 579 U.S. __, 136 S. Ct. 2243 (2016); Descamps , 1 3 3 S. Ct. 2276; Shepard v. United States , 544 U.S. 13, 125 S. Ct. 1254 (2005); Taylor v. Unite d States , 495 U.S. 575, 110 S. Ct. 2143 (1990). The district court denied Beeman’s § 2255 motion as untimely and, alternatively, on the merits. It determined that Beeman’s § 2255 motion was untimely because he filed it more than a year after his judgmen t of conviction became final and the motion failed to raise a true Johnson claim, instead “at its core, rel[ying] on Descamps

. ” As an alternative ground, the court determined that even under the Descamps decision, a Georgia conviction for aggravated assau lt qualifies as a violent felony under the ACCA’s elements clause.

Case: 16-16710 Date Filed: 09/22/2017 Page: 5 of 336 II. DISCUSSION A. The Time Bar “We review de novo the district court’s determination that a § 2255 motion to vacate is time

- barred.” Drury v. United States , 507 F.3d 1295, 1296 (11th Cir. 2007). The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a

one - year statute of limitations to bring a § 2255 motion. 28 U.S.C. § 2255(f). The limitations period begins to run on the latest of four possible triggering dates. See id. T ypically, the applicable triggering date is “the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1). Beeman cannot rely on that limitations period, however, because he filed his § 2255 motion almost five years after its expiration. Instead, he asserts that his § 2255 motion is timely because he filed it within one year of the Supreme Court’s Johnson decision, bringing it within the limitations period that begins on “ the date on which the right asserted was initially recognized by t he 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). The § 2255(f) statute of limitations “requires a claim

- by

- claim approach to determine time liness.” See Zack v. Tucker , 704 F.3d 917, 92 4, 92 6 (11th Cir. 2013) (en banc); accord Davis v. United States , 817 F.3d 319, 32 7

– 28 (7th Cir. 2016) (“But as every other circuit to have considered the question has concluded,

Case: 16-16710 Date Filed: 09/22/2017 Page: 6 of 337 and we now hold, the timeliness of each claim asserted in either a section 2255 motion or a petition challenging a state

- court conviction under 28 U.S.C. § 2254 must be considered independently.”) (footnotes omitted). In other words, if a § 2255 movant asserts that his § 2255 motion is timely because he filed it within one year of the Supreme Court’s issuance of a decision recognizing a new right, we must determine whether each claim asserted in the motion depends on that new decision. If a particular claim does not depend on th e new d ecision, that claim is untimely and must be dismissed. In order for a Supreme Court decision to restart the one

- year statute of limitations under § 2255(f)(3), the decision must both (1) recognize a new right and (2) be made retroactively applicable to c ases on collateral review. See 28 U.S.C. § 2255(f)(3). The issuance of the Supreme Court’s Johnson decision meets both of those requirements. The Supreme Court held in Welch that Johnson announced a new rule that is retroactively applicable to cases on collateral review. See Welch , 136 S. Ct. at 1268. Because the Supreme Court issued Johnson on June 26, 2015, Johnson , 135 S. Ct. 2551, a § 2255 movant wishing to raise a Johnson claim had until June 26, 2016, to file a motion obtaining that claim. See 2 8 U.S.C. § 2255(f)(3). On the other hand, the issuance of the Descamps decision cannot qualify as a triggering date under § 2255(f)(3). It is true that we have held that the Descamps

Case: 16-16710 Date Filed: 09/22/2017 Page: 7 of 338 decision is retroactively applicable to cases on collateral review. Mays , 817 F.3d at 733

– 34. But being retroactively applicable to cases on collateral review is only part of the test for restarting the statute of limitations. AEDPA also requires that the right have been “newly recognized by the Supreme Court.” 28 U.S.C

. § 2255(f)(3). In holding that the Descamps decision is retroactively applicable to cases on collateral review, our Mays decision makes clear that Descamps did not set out a newly recognized right. In fact, we based our decision on the recognition that

“ Descamps did not announce a new rule

— its holding merely clarified existing precedent.” 817 F.3d at 734; see also Descamps , 133 S. Ct. at 2283 (“Our caselaw explaining the categorical approach and its ‘modified’ counterpart all but resolves this case.”)

. And as we have explained, “[i] f the decision merely clarifies an old rule,

. . . . the petitioner will not be able to take advantage of the extended statute of limitations under § 2255, which requires a newly recognized right by the Supreme Court.” Figu ereo - Sanchez v. United States , 678 F.3d 1203, 120 7 n.4 (11th Cir. 2012). As a result, a § 2255 movant wishing to raise a Descamps claim cannot rely on subsection (f)(3) as the starting point for the calculation of the limitations period. Instead, he must file his motion within one year of one of the other triggering dates set out in § 2255(f).

Case: 16-16710 Date Filed: 09/22/2017 Page: 8 of 339 Beeman’s judgment of conviction became final in October 2010, meaning that the one

- year statute of limitations under § 2255(f)(1) expired in October 2011. He did not file his § 2255 motion until June 7, 2016, almost five years later. The extended § 2255(f)(3) limitations period for raising a Johnson claim expired on June 26, 2016, the one

- year anniversary of the Johnson decision. As a result, if his § 2255 motio n raised a Johnson claim, that claim was timely, but any other claim the motion raised

— including a Descamps claim

— was untimely. A Johnson claim and a Descamps claim make two very different assertions. A Johnson claim contends that the defendant was sent enced as an armed career criminal under the residual clause, while a Descamps claim asserts that the defendant was incorrectly sentenced as an armed career criminal under the elements or enumerated offenses clause. Beeman raised both of those claims in hi s § 2255 motion. He focused largely on an argument that the 2013 Descamp s decision meant that his Georgia conviction for aggravated assault could no longer qualify as a violent felony under the elements clause. That is obviously a Descamps claim. But h e also claimed that when sentencing him in 2009, the district court relied on the residual clause to find that his aggravated assault conviction qualified as a violent felony under the ACCA. In support of that proposition, he asserted that aggravated assa ult in Georgia was a crime “which historically qualified as an ACCA predicate under that statute’s residual clause.”

Case: 16-16710 Date Filed: 09/22/2017 Page: 9 of 3310 Therefore, he contended that the Johnson decision required he be resentenced without the ACCA enhancement. That sounds like a Johnson cla im. The district court determined that Beeman’s § 2255 motion was untimely because it raised only a Descamps claim. We agree that the motion raised an untimely Descamps claim, and that part of the district court’s order is due to be affirmed on that gro und. We disagree, however, with the district court’s conclusion that Beeman’s § 2255 motion did not also assert a Johnson claim. Given Beeman’s heavy reliance on Descamps in support of his motion, the district court’s conclusion on that point is understa ndable. Nevertheless, Beeman’s motion did allege that, Georgia aggravated assault, which was one of his three qualifying ACCA convictions, “historically qualified as an ACCA predicate under [the ACCA]’s residual clause,” and that “in recent years, the Ele venth Circuit has been using the residual clause as a default home for many state statutes that might otherwise have been counted under the elements or enumerated crimes clauses.” He also filed his motion 19 days before the one

- year anniversary of the Joh nson decision. See 28 U.S.C. § 2255(f)(3) (“The limitation period shall run from

. . . the date on which the right asserted was initially recognized by the Supreme Court

. . . . ”). Under the circumstances , the motion said enough to assert a Johnson claim

.

Case: 16-16710 Date Filed: 09/22/2017 Page: 10 of 3311 Regardless of the ground stated in the district court’s order or judgment, “[w]e m ay affirm on any ground supported by the record.” Castillo v. United States , 816 F.3d 1300, 1303 (11th Cir. 2016). In this case, the record makes clear that the district court’s dismissal of the § 2255 motion was the correct result as to the Johnson claim because

— although timely raised

— Beeman has not carried his burden of proving that claim on the merits. He did not request an evidentiary hearing in the district court, an d he has not suggested in this Court that a remand for an evidentiary hearing would do him any good. Instead, he has chosen to proceed on the basis of the record as it now exists, and we consider his Johnson claim on that record. B. The Merits To prove a Johnson claim, a movant must establish that his sentence enhancement “turn[ed] on the validity of the residual clause.” In other words, he must show that the clause actually adversely affected the sentence he received. In re Thomas , 823 F.3d 1 345, 1349 (11th Cir. 2016). 1 Only if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause is there a Johnson violation. That will be the case only (1) if the

1 It makes no difference that Thomas was decided in the context of a prisoner’s application for certification to file a second or successive § 2255 motion. The Thomas decision held that an applicant could not make even a prima facie showing of a Johnson claim if the Johnson decision did not affect his sentence. An applicant who cannot make eve n a prima facie showing that his § 2255 motion contains a Johnson claim will necessarily be unable to shoulder his burden of proving that he is actually entitled to relief under the Johnson decision.

Case: 16-16710 Date Filed: 09/22/2017 Page: 11 of 3312 sentencing court relied solely on th e residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson ) to qualify a prior conviction as a violent felony, and (2) if there were not at leas t three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense

. Critical to our decision on the merits issue in this case is the burden of proof and persuasion. The Government contends that a § 2255 movant bears the burden of proving that his sentencing enhancement was imposed because the sentencing court used the residual clause. Beeman argues that if it is merely possible that the court relied on that clause to enhance the s entence, then he has met his burden. 2 We conclude, and hold, that, like any other § 2255 movant, a Johnson § 2255 claimant must prove his claim. 3 To prove a Johnson claim, the movant must show that

— more likely than not

— it was use of the residual clause t hat led to the sentencing court’s enhancement of his sentence. If it is just as likely that the

2 Actually, Beeman puts it more strongly. He says tha t unless the record affirmatively shows that the district court relied on a clause other than the residual clause, we are required to conclude that it was the residual clause on which the enhancement was based.

3 Our Court has previously stated in dict a that a Johnson movant does bear the burden of proof, as argued by the Government. See In re Moore , 830 F.3d 1268, 1272

– 73 (11th Cir. 2016). In a subsequent opinion, the Court endorsed in dicta the position now advocated by Beeman that a movant must merely show the possibility that the court relied on the residual clause to enhance the sentence. See In re Chance , 831 F.3d 1335, 1338

– 42 (11th Cir. 2016). As to the case before us now, we have not deferred to dicta. W e have examine d this issue afresh in reaching our conclusion based on what we see as traditional legal principles

.

Case: 16-16710 Date Filed: 09/22/2017 Page: 12 of 3313 sentencing court relied on the elements or enumerated offenses clause, solely or as an alternative basis for the enhancement, then the movant has failed to sho w that his enhancement was due to use of the residual clause. We rest our conclusion that a § 2255 movant must prove his Johnson claim on a long line of authority holding that a § 2255 movant “bears the burden to prove the claims in his § 2255 motion.” Rivers v. United States , 777 F.3d 1306, 1316 (11th Cir. 2015) ; LeCroy v. United States , 739 F.3d 1297, 1321 (11th Cir. 2014) ; Barnes v. United States , 579 F.2d 364, 366 (5th Cir. 1978) (“Under Section 2255, [the movant] had the burden of showing that he was entitled to relief.”); Coon v. United States , 441 F.2d 279, 280 (5th Cir. 1971) (“A movant in a collateral attack upon a judgment has the burden to allege and prove facts which would entitle him to relief.”)

. And we are not alone in so holding. See Un ited States v. Pettiford , 612 F.3d 270, 277 (4th Cir. 2010) (“[T]he district court must determine whether the [§ 2255 movant] has met his burden of showing that his sentence is unlawful on one of the specified grounds.”); United States v. DiCarlo , 575 F.2d 952, 954 (1st Cir. 1978) (“In seeking collaterally to attack their convictions under section 2255, [movants] bear the burden of establishing by a preponderance of the evidence that they are entitled to relief.”); Zovluck v. United States , 448 F.2d 339, 34 1 (2d Cir. 1971) (stating, in the context of an appeal from the denial of a § 2255 motion, that

Case: 16-16710 Date Filed: 09/22/2017 Page: 13 of 3314 “[t]here is no doubt but that appellant had the burden of proof”); United States v. Trumblay , 234 F.2d 273, 275 (7th Cir. 1956) (“On a motion to vacate, set aside or correct a sentence, a movant has the burden of proof.”) ; Taylor v. United States , 229 F.2d 826, 832 (8th Cir. 1956) (“Because the statutory proceeding is a collateral attack upon the judgment of convic tion, the burden is on the [movant] to establish a basis for relief under some one or more of the grounds set forth in [§ 2255] .”)

. As to our own precedent requiring a § 2255 movant to prove his entitlement to relief, in the Rivers decision, we held that Rivers’s “motion must

. . . be denied” because he “[had] not met his burden of proof” where the only evidence he offered in support of his claim was testimony that the district court did not credit. 777 F.3d at 1318; see also id. at 1316. Similarly, in the LeCroy case, the petitioner asserted that counsel was ineffective for failing to call an expert witness who could have presented mitigation evidence about his childhood. 739 F.3d at 1313

– 14. His attorneys had decided not to present the expert witness because they feared that if they did, the Government would conduct its own evaluation of him and present a rebuttal expert whose evidence could be damaging. Id. at 1321. LeCroy argued that his attorneys’ “fear of a Government evaluation” was irrational and that they could have allowed the Government to conduct the evaluation, seen what it said, and then

Case: 16-16710 Date Filed: 09/22/2017 Page: 14 of 3315 decided whether to present the defense expert. Id. This Court explained that LeCroy’s argument: inverts the burden of proof, which on a § 2255 petition belongs to the petitioner . If LeCroy’s claim is that a Government evaluation would have been less damaging than [his expert]’s evaluation

— and that, accordingly, the defense team ought to have been more will ing to roll the dice and see what the Government would come up with

— then to carry that argument LeCroy would actually need to show that the Government evaluation would be favorable. Otherwise, LeCroy is asking us to disregard the burden of proof and specu late about what might have been, drawing an inference in his favor that the record simply does not support . Here, where LeCroy is either unwilling or unable to demonstrate that the Government’s evaluation would in fact have been favorable

— as opposed to co nceivably being favorable

— he has failed to carry his burden in showing prejudice. Id. at 1321

– 22 (underlined emphasis added). Our long line of decisions holding that a § 2255 movant must bear the burden of proving his entitlement to relief makes sense

. “ [O] ne of the principal functions of AEDPA was to ensure a greater degree of finality for convictions.” Johnson v. United States , 340 F.3d 1219, 1224 (11th Cir. 2003); see also Jones v. United States , 304 F.3d 1035, 1039 (11th Cir. 2002) (“A fundamenta l purpose for the AEDPA was to establish finality in post

- conviction proceedings.”). Even before AEDPA, the Supreme Court had instructed us that “direct appeal is the primary avenue for review of a conviction or sentence

. . . . When the process of direc t review .

. . comes to an end, a presumption of finality and legality attaches to the conviction and sentence.” Barefoot v. Estelle , 463 U.S. 880, 887, 103 S. Ct.

Case: 16-16710 Date Filed: 09/22/2017 Page: 15 of 3316 3383, 3391

– 92 (1983). Finality “is essential to the operation of our criminal justice syst em. Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane , 489 U.S. 288, 309, 109 S. Ct. 1060, 1074 (1989). Putting the burden of proof and persuasion on the Government in a § 2255 proceeding to show the absence of a constitutional violation or that an error had no effect on the judgment would undermine the presumption of finality that attaches at the end of the direct appeal process. It would go a long way toward creating a presumption of non

- finality and under mine the important interests that finality protects. In spite of all the above caselaw, Beeman contends that “[t]he rule must be this: A Johnson movant has met his burden to show that he has a right to § 2255 relief

. . . unless the record affirmatively shows that the district court relied upon the ACCA’s elements clause.” He would, to borrow the language of our LeCroy decision, have us invert the burden of proof and persuasion by taking well

established principles de veloped in numerous decisions over the years and turning them entirely upside down. We have to do this, he urges, because district courts have never been required to say, and as a result have not always expressly stated, which of the ACCA’s clauses they a re relying on when finding that a conviction qualifies as a violent felony. As a result, Beeman argues, if we treat Johnson movants like every other § 2255 movant, and require them to shoulder their burden

Case: 16-16710 Date Filed: 09/22/2017 Page: 16 of 3317 of proof and persuasion, it is unlikely that many of these prisoners will succeed in showing they are due relief. Even if we accept Beeman’s factual premise about what sentencing records typically show or don’t show, we reject his legal premise that the burden of proof and persuasion should be overhaul ed for the purpose of increasing the number of cases in which the movant prevails. The burden of proof and persuasion reflects longstanding and fundamental interests in finality. It is by application of the appropriate burden that the outcome of a case i s supposed to be determined, not the other way around. This approach is as true with Johnson claims as with any other type of claim. Nor are we persuaded by Beeman’s argument that requiring a § 2255 movant raising a Johnson claim to carry his burden of p roof and persuasion would make the outcome depend on the “fluke” of a district court having expressly stated which clause it was relying on. If true, that would be equally true whichever side bears the burden. It is no more arbitrary to have the movant l ose in a § 2255 proceeding because of a silent record than to have the Government lose because of one. What would be arbitrary is to treat Johnson claimants differently than all other § 2255 movants claiming a constitutional violation. 4

4 We do not mean to imply that every sentencing record will lack sufficient evidence about whether the district court relied on the residual clause in finding that the defendant was an armed career criminal. Some sentencing records may contain direct evidence: comments or findings

Case: 16-16710 Date Filed: 09/22/2017 Page: 17 of 3318 Beeman concedes that the re is nothing in the record suggesting that the district court relied on only the residual clause in sentencing him. In his § 2255 motion , he stated in conclusory terms that the district court must have relied on the residual clause, but nothing i n the record supports this argument ; and Beeman has pointed to no precedent in 2009 holding , or otherwise making obvious, that a violation of Georgia’s aggravated assault statute qualifie d as a violent felony only under the residual clause

. 5 Instead, citi ng to no authority, his motion merely asserts in general terms that “a Georgia conviction for aggravated assault

. . . [has] historically qualified as an ACCA predicate under [the ACCA]’s residual clause.”

by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in t hat case. Nor do we mean to suggest that there will not sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement. For example, there could be statements in the PSR, which were not objected to, recommending that the en umerated clause and the elements clause did not apply to the prior conviction in question and did not apply to other prior convictions that could have served to justify application of the ACCA. Or the sentencing record may contain concessions by the prose cutor that those two other clauses do not apply to the conviction in question or others. And there could be other circumstances on which a movant can rely; the above are but a few examples. Each case must be judged on its own facts.

5 We note that Beem an has likewise pointed to no precedent since 2009 so holding. But even if such precedent had been announced since Beeman’s sentencing hearing, it would not answer the question before us. What we must determine is a historical fact: was Beeman in 2009 se ntenced solely per the residual clause? And as noted, Beeman bears the burden of proving that historical fact. Certainly, if the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony, that circumstance would strongly point to a sentencing per the residual clause. However, a sentencing court’s decision today that Georgia aggravated assault no longer qualifies under present law as a violent felony under the elements cl ause (and thus could now qualify only under the defunct residual clause) would be a decision that casts very little light, if any, on the key question of historical fact here: whether in 2009 Beeman was, in fact, sentenced under the residual clause only.

Case: 16-16710 Date Filed: 09/22/2017 Page: 18 of 3319 Beeman

— relying only on cases involving Florida bu rglary convictions

— also contends that this Court has “been using the residual clause as a default home for many state statutes that might otherwise have been counted under the elements or enumerated crimes clauses.” These general observations, however, ar e not enough to carry his burden of establishing that he, in fact, was sentenced as an armed career criminal here solely because of the residual clause. In his reply to the Government’s answer to his § 2255 motion, Beeman conceded that it is unclear 6 f rom the record whether the sentencing court had relied on the residual clause or the elements clause, or both, in finding that his aggravated assault conviction qualified as a violent felony. “ Where, as here, the evidence does not clearly explain what hap pened

. . . the party with the burden loses. ” Romine v. Head , 253 F.3d 1349, 1357 (11th Cir. 2001) ; see also Schaffer ex rel. Schaffer v. Weast , 546 U.S. 49, 5 6 , 126 S. Ct. 528, 533

– 34 (2005) ( explaining that the term “burden of persuasion” means that the party with the burden “ loses if the evidence is closely balanced ” ) ; Dynamic Drinkware, LLC v. Nat’l Graphics, Inc. , 800 F.3d 1375, 1378

– 79 (Fed. Cir. 2015) ( “ Failure to prove the matter as required by the

6 The “clear/unclear test” discussed in In re Rogers , 825 F.3d 1335 (11th Cir. 2016) is inapplicable here. That test was established expressly as a means of making a preliminary determination about whether a habeas petitioner had made out a prima facie showing sufficient to warrant leave to file a second o r successive section 2255 motion. The “clear/unclear test” merely allows a defendant to bring a Johnson claim and the opportunity

— at the merits stage

— to produce evidence establishing that he was actually sentenced solely under the residual clause. Here, Beeman has been permitted to raise his claim; but his lack of evidence has failed to satisfy his ultimate burden of proof.

Case: 16-16710 Date Filed: 09/22/2017 Page: 19 of 3320 applicable standard means that the party with the burden of persuasion loses on that point

— thus, if the fact trier of the issue is left uncertain, the party with the burden loses. ”) (quotation marks omitted); Lovell ex rel. Lovell v. Poway Unified Sch. Dist. , 90 F.3d 367, 373 (9th Cir. 1996) ( “ In general, if the evidence is evenly balanced, such that a decision on the point cannot be made one way or the other, then the party with the burden of persuasion loses. ” ) ; Cuppett v. Duckworth , 8 F.3d 1132, 1140 n.5 (7th Cir. 1993) ( “ A party with the burden of persuasion loses if he fails to meet that burden. ”)

. Given this record, Beeman’s Johnson claim was therefore due to be dismissed because he failed to carry his b urden of proof. Specifically, he failed to
prove

— that it was more likely than not

— he in fact was sentenced as an armed career criminal under the residual clause. Having failed to prove that but for the residual clause he would have received a different s entence, he cannot prevail. For that reason, we AFFIRM

.

Case: 16-16710 Date Filed: 09/22/2017 Page: 20 of 3321 WILLIAMS, Distric t Judge , Dissenting : I agree with the majority that Beeman’s Johnson claim is timely, 1 and that he unequivocally bears the burden of establishing his right to relief. I cannot agree, however, that he has failed to adequately demonstrate that he was sentenced under the residual clause of the Armed Career Cr iminal Act (“ACCA”), or that his claim is substantively without merit. Specifically, I do not believe that the merits of B eeman ’ s timely Johnson claim can be properly assessed without reaching the question of whether his conviction for a ggravated a ssault in Georgia qualifies as a proper predicate offense under the e lements c lause of the ACCA, an issue that was fully briefed and ripe for adjudication on this record

. Since the Supreme Court’s decision in Johnson

— or more specifically the pronouncement in We lch that Johnson would be retroactively applicable on collateral review

— courts have reviewed a torrent of habeas petitions challenging sentences that relied on the mandatory minimums meted out pursuant to the ACCA. In each case, the same standard has been applied: First, the movant must show that he was sentenced under the now

- invalidated residual clause of the

1 I also agree with the majority’s implicit rejection of the Government’s arguments regarding

procedural default or untimeliness under AEDPA, which would result in eligible defendants “remain[ing] imprisoned solely because [they] did not raise an argument on appeal that was foreclosed by Supreme Court precedent at the time

— and would have been deemed frivolous.” Duhart v. United Sta tes , No. 16

- cv - 61499

- MARRA, 2016 WL 4720424, at *3 (S.D. Fla. Sept. 9, 2016); see also West v. United States , No. 16

- cv - 22459

- KMW (S.D. Fla. Mar. 22, 2017 ) ; Vasquez v. United States , No. 16

- cv - 14247

- JEM (S.D. Fla. Dec. 6, 2016), report and r ecommendation adopted, No. 16

- cv - 14247

- JEM (S.D. Fla. Feb. 14, 2017 )

.

Case: 16-16710 Date Filed: 09/22/2017 Page: 21 of 3322 ACCA. Second, the movant must show that he could not have been sentenced under any other portion of the statute, namely the elements clause and th e enumerated clause. See Johnson v. United States , 135 S. Ct. 2551, 2563 (2015) (clarifying that “[the] decision does not call into question application of the Act to the four enumerated offens es, or the remainder of the Act’ s definition of a violent felo ny.”). I agree that the burden of making this showing and demonstrating a right to relief rests squarely with the movant

— here, Beeman. Upon a review of his motion and the record, however, I believe that Beeman has met that burden. As an initial matter, the majority conflates Beeman ’s argument that he could not have been sentenced under the elements clause

— made in the context of establishing his Johnson claim

— with the argument that he was improperly sentenced under the elements claus e

— which would constitute an untimely Descamps claim. Specifically, the majority observes that Beeman’s petition

“ focused largely on an argument that the 2013 Descamp s decision meant that his Georgia conviction for aggravated assault could no longer qualif y as a violent felony under the elements clause” and concludes that this “is obviously a Descamps claim.” This conclusion, however, ignores both the unambiguous statements presented in Beeman’s habeas petition and the established standards of the courts for demonstrating a defendant’s right to relief under Johnson . With regard to the

Case: 16-16710 Date Filed: 09/22/2017 Page: 22 of 3323 former, Beeman’s motion in the district court opened with the following statement: “Mr. Beeman challenges his sentence on one ground: In light of Johnson v. United States , t he 210

- month prison sentences on Counts One and Four, eac h imposed under [the ACCA] , are un lawful.” The motion goes on to argue that “ the ACCA ’ s residual clause, the basis for Mr. Beeman ’ s harsh, ACCA

- enhanced sentence . . . is now extinct,” and that Beem an is entitled to relief because, in light of that change in the law, he no longer has three qualifying predicate crimes under the remaining language of the ACCA. As to existing precedent on this issue, it has been established i n the context of second or successive habeas petitions that “w hen an applicant ’ s ‘ claim implicates Johnson , ’ we must apply binding Supreme Court precedent such as Descamps , even if this precedent does not on its own establish ‘ an independent claim that is itself subject to the g atekeeping requirements [of 28 U.S.C. § 2255(h)] ’

. . . in determining whether a prior conviction would still su pport an enhanced ACCA sentence.” In re Rogers , 825 F.3d 1335, 1339 (11th Cir. 2016) ; see also In re Adams , 825 F.3d 1283, 1286 (11th Cir. 2016 ) (distinguishing cases where “petitioners were forced to rely on Descamps as a standalone claim” from cases where Johnson is implicated because “the sentencing court may have relied on the residual clause , ” and finding in the latter situation that “the a mbiguity surrounding the sentencing court's decision requires us to look to the text of the

Case: 16-16710 Date Filed: 09/22/2017 Page: 23 of 3324 relevant statutes, [and] . . . guiding precedent, such as Descamps , to ensure we apply the correct meaning of the ACCA's words.” )

. Similarly, establishing that a
p redicate offense could not qualify under the elements clause by applying the Descamps framework has been part and parcel of many d istrict c ourt determinations that a movant is entitled to relief under Johnson

. See, e.g., Wojcieszak v. United States , 196 F. Supp. 3d 1319 (S.D. Fla. 2016); Cochran v. United States , No. 16

- 22506

- CIV, 2017 WL 3084582 (S.D. Fla. June 16, 2017 ), report and recommendation adopted, No. 16

- 22506

- CIV, 2017 WL 3085336 (S.D. Fla. July 19, 2017) ; Givens v. United States , No. 4:1 6

- CV

- 1143 CAS, 2016 WL 7242162 (E.D. Mo. Dec. 15, 2016), appeal dismissed, No. 17

- 1199, 2017 WL 3273416 (8th Cir. Feb. 8, 2017) ; Nichols v. United States , No. 1:04

- CR

- 68

- TRM

CHS

- 1, 2016 WL 5921780 (E.D. Tenn. Oct. 11, 2016) ; United States v. Wilson , No. CR 96

- 0157 (ESH), 2017 WL 1383644 (D.D.C. Apr. 18, 2017) ; Shabazz v. United States , No. 3:16

- CV

- 1083 (SRU), 2017 WL 27394 (D. Conn. Jan. 3, 2017) ; Memoli v. United States , No. 04CR140 (JSR), 2017 WL 3559190 (S.D.N.Y. July 11, 2017), report and recommendation adopted in part, No. 16

- CV

- 4097 (JSR), 2017 WL 3504918 (S.D.N.Y. Aug. 15, 2017)

. Though presented as a distinct “timeliness” holding, th e majority’s misapprehension of Beeman ’s Descamps arguments directly impacts the Court ’ s analysis on the merits of his Johnson claim. As set out above, in order to prevail

Case: 16-16710 Date Filed: 09/22/2017 Page: 24 of 3325 on a Johnson claim, a movant must first establish that he was sentenced under the residual clause, and then must show that his predicate crimes could not qualify under any other portion of the ACCA. Bu t precluding discussion of Descamps in support of a Johnson motion contrives an issue with regard to both of these required showings. As to the first prong, it forecloses an avenue of evidentiary support that, in many instances, could conclusively demonst rate a sentencing court’s reliance on the now

- defunct residual clause. As to the second, it creates a standard under which the movant must establish that his predicate crimes could not qualify under any remaining clause of the ACCA, without allowing him t o argue that his predicate crimes do not qualify under the elements clause based on binding Supreme Court precedent. 2
The case at hand is illustrative of this conflict , particularly with regard to the first prong of Johnson

. By artifici ally delineating what constitutes a Johnson argument

— and by disposing of Beeman’s petition without reaching the second required showing for success on a Johnson claim

— the majority elides all of Beeman ’ s elements

- clause arguments from their Johnson analysis, leaving Beeman with “insufficient” assertions regarding the sentencing court’s reliance on the residual clause, which the majority peremptorily rejects. In so doing , the majority

2 As the majority correctly points out, Descamps did not articulate a new rule of constitutional

law, but rather “merely clarified existing precedent.” Mays v. United States , 817 F.3d 728, 734 (11th Cir. 2016). If that is the case, not only is Beeman permitted to rely on Descamps in arguing that he is entitled to Johnson relief, but he is, in fact, required to do so.

Case: 16-16710 Date Filed: 09/22/2017 Page: 25 of 3326 has set up a straw man regarding Beeman ’ s Johnson arguments that the y then proceed to knock down. The majority opinion’s discussion of the merits of Beeman’s Johnson claim starts off on the right track. It accurately explains that, in order to obtain relief, Beeman must show that “(1) [] the sentencing court relied solely on the residual clause” and “(2) [] there were not at least three other prior convictions that could have qualified under [the elements or the enumerated] clauses as a violent felony,

or as a serio us drug offense .” It goes on to discuss the appropriate burden of proof, and states that a movant must first demonstrate that it is “more likely than not” that he was sentenced under the residual clause in order to obtain relief under Johnson

. Our paths diverge, however, on the question of how that standard may be met. When approaching this question, I do not write on a blank slate. Previous decisions of this Court have posited a “clear/unclear” test that has been consistently applied when answeri ng this precise question in the Johnson context on applications for leave to file a second or successive habeas petition. Under that test, Johnson is “implicated” when the sentencing court did not specify the statutory basi s for the qualifying predicates and there is no precedent establishing that the predicates would qualify under one of the remaining ACCA clauses

. In re Rogers , 825 F.3d 1335, 1339 (11th Cir. 2016) (citing, among others, In re Adams , 825 F.3d at 1284 )

. In such circumstances, “ courts mus t apply Descamps and other

Case: 16-16710 Date Filed: 09/22/2017 Page: 26 of 3327 binding Supreme Court precedent in determining whether a prior conviction would still support an enhanced ACCA sentence .” Id. There is no logically sound justification

— and none is offered by the majority

— for discarding the clea r/unclear paradigm and approaching a Johnson claim differently in the context of an initial habeas petition. 3 Indeed, m any district courts across the country have adopted this approach in evaluating Johnson claims on initial habeas petitions with an unclear sentencing record. See , e.g. , United States v. Booker , No. 16

- cv - 1107 , 2017 WL 829094, at *3 (D.D.C. Mar. 2, 2017) (noting that “[f]irst, judges are not required by law to state at sentencing whether th ey are relying on the residual clause or the elements clause. . . . [and] [s]econd, there was no practical reason for judges to make this distinction at sentencing prior to June 26, 2015, when the Supreme Court decided that the residual clause was void for vagueness.”); Burgess v. United States , No. CR493

- 205, 2017 WL 1943988 , at *3 n.9 (S.D. Ga. Apr. 27, 2017), report and recommendation adopted, No. CR493

- 205, 2017 WL 2834492 (S .D. Ga. June 29, 2017) (“Movant’ s burden is only to show that

— absent a clear

3 As applied in the “gatekeeping” context of a second or successive habeas petition, the purpose

of the clear/unclear test is to permit a petitioner to prove a constitutional right to relief in a circumstance where “it necessarily is unclear whether the cou rt relied on a constitutionally valid or a constitutionally invalid legal theory.” United States v. Geozos , No. 17

- 35018, 2017 WL 3712155, at *4 (9th Cir. Aug. 29, 2017). That same inquiry is precisely the question that must be answered when ruling on th e merits of a Johnson claim, given that a petitioner is only entitled to relief under that decision if he is able to prove that he was sentenced under a constitutionally infirm provision of the ACCA. As such, the previous reasoning of this Court in cases such as In re Chance , In re Rogers , In re Adams , and many others

— as well as the decisions of the other courts cited infra

— is both instructive and highly persuasive in deciding the issue before us.

Case: 16-16710 Date Filed: 09/22/2017 Page: 27 of 3328 re cord

— the sentencing judge may have used the residual clause. ” ); United States v. James , No. 06

- 20172

- JWL, 2016 WL 3936495 (D. Kan. July 21, 2016); United States v. Hamilton , 235 F. Supp. 3d 1229 (N.D. Okla. 2017); Williams v. United States , No. 4:16CV00993 ERW, 2017 WL 895910 (E.D. Mo. Mar. 7, 2017); Thrower v. United States , 234 F. Supp. 3d 372 (E.D.N.Y. 2017); United States v. Wolf , No. 1:04

- CR

- 347

- 1, 2016 WL 6433151 (M.D. Pa. Oct. 31, 2016); United States v. Ballard , No. CR 03

- 810, 2017 WL 2935725 (E.D. Pa. July 10, 2017); Givens v. United States , No. 4:16

- CV

- 1143 CAS, 2016 WL 7242162 (E.D. Mo. Dec. 15, 2016), appeal dismissed, No. 17

- 1199, 2017 WL 3273416 (8th Cir. Feb. 8, 2017). Even absent these decisions , however, it is clear that any alternative to th is
test

— in other words , any standard under which an unclear sentencing record preclude s relief under Johnson

— would lead to unwarranted and inequitable results. In his briefs, and again at oral argument, Beeman offered the example from In Re: Chance , 831 F.3d 1335 (11th Cir. 2016) , involving two defendants, sentenced on the same day, for the same offense, by the same judge, with the same ACCA predicates . Under the majority’s rationale, one of the defendants could bring a Johnson claim because the judge s p ecified that he was sentenced under the residual clause, but the other defendant could not , because the judge used no such language and made no specific reference to any ACCA sub

- clause

. Adopting the

Case: 16-16710 Date Filed: 09/22/2017 Page: 28 of 332 9 approach of the majority and permitting this scenario to play out in our courts not only would be unfair, but also would nullify the retroactive effect of a change in the law pronounced by the Supreme Court. 4 I can see no basis for predicating a defendant’s right to relief on the precision of the verbiage em ployed by a judge, an attorney, or even a defendant himself at the time of sentencing, when the highest court has announced that “ [t] he residual clause is invalid under Johnson , so it can no longer mandate or authorize any sentence. ” Welch v. United State s , 136 S. Ct. 1257, 1265 (2016)

. 5 As such , it should “ make [] no difference whether the sentencing judge used the words ‘ residual clause ’ or ‘ elements cl ause,’ or some similar phrase”; courts should not “ penalize a movant for a [sentencing] court ’ s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony .” United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) (citing with approval In re Chance , 831 F.3d 1335); see also United State s v. Geozos , No. 17

- 35018, 2017 WL 3712155 (9th Cir. Aug. 29, 2017)

4 See also United States v. Winston , 8 50 F.3d 677, 682 (4 th Cir. 2017) (acknowledging that such

an approach “would result in ‘selective application’ of the new rule of constitutional law announced in Johnson [], violating ‘the principle of treating similarly situated defendants the same.’) (internal citations om itted).

5 As this Court has recently observed, “[i]t is a safe operating assumption that when the Supreme

Court articulates a standard, it actually means the words it has used to set out that standard. . ..” United States v. Eddy Wilmer Vail

- Bailon , No. 15

- 10351, 2017 WL 3667647 (11th Cir. Aug. 25, 2017). In the case of Johnson , the plain language of the decision makes clear that relief under the holding is not predicated upon a specific finding at sentencing, but rather the absence of a constitutional b asis for the sentence imposed

. Welch , 136 S. Ct. at 1265 (“ Johnson establishes, in other words, that ‘ even the use of impeccable factfinding procedures could not legitimate ’ a sentence based on that clause.”).

Case: 16-16710 Date Filed: 09/22/2017 Page: 29 of 3330 (citing with approval In re Chance , 831 F.3d 1335). If Johnson means that an inmate’ s [] companion convictio n should not have served as [ a predicate offense under the statute] . . . then the text of [the statute] no longer authorizes his sentence and his imprisonment is unlawful.” In re Chance , 831 F.3d at 1341 ; see also Geozos , 2017 WL 3712155 at *4 (“[W] hen it is unclear from the record whether the sentencing court relied on the residu al clause, it necessarily is unclear whether the court relied on a constitutionally valid or a constitutionally invalid legal theory. ”). To be sure, the inquiry does not end there. When the sentencing record is inconclusive, a movant must still bear the burden of showing

— either through direct or circumstantial evidence

— that he was, in fact, sentenced under the residual clause. 6 Indeed, Beeman has attempted to do just that by demonstrating that he could not possibly have been sentenced under any other cla use of the ACCA. The majority does not reach the question of whether this type of circumstantial evidence of reliance on the residual clause should be permitted because, as noted above, they improperly categorize these arguments as an

6 I do not agree that “[a ] Johnson movant has met his burden to show that he has a right to §

2255 relief . . . unless the record affirmatively shows that the district court relied upon the ACCA’s elements clause.” App. Br. at 22. Instead, I simply take the view that an “unclear” sentenc ing record is neither a bar to, nor sufficient for, success on the merits of a Johnson claim. Case: 16-16710 Date Filed: 09/22/2017 Page: 30 of 3331 “untimely Descamps c laim” and exclude them from the discussion of Beeman’s Johnson claims. 7 The majority characterizes this framework as implicating some order of “burden shifting” that would break from long

- standing precedent regarding a movant’s obligation to establish his entitlement to constitutional relief and allow unmeritorious claims to s ucceed. This is not the case. Under the clear/unclear rubric, an unclear record does not entitle a movant to relief. Instead, it permits a defendant to bring a Johnson claim and to adduce evidence that establishes, conclusively, that he was sentenced un der the residual clause. Far from opening the jailhouse doors based on ambiguities in the record, this analysis simply gives potentially eligible defendants the opportunity to prove that they are entitled to relief where, as here, the sentencing documents and record transcripts are silent. Though it is true that the courts may have to address some unmeritorious petitions because of this rule, this cannot be the basis for precluding access to the courts and

“ permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey v. United States , 401 U.S. 667, 693 (opinion of Harlan, J.). In a case like this, where a movant attempts to satisfy the first prong of the Johnson inquir y through circumstantial evidence by demonstrating that he could not have been properly sentenced under any other portion of the statute, the first

7 They do, however, clarify that either direct or circumstantial evidence could be used for this

purpose. See Maj. Op. n.4

.

Case: 16-16710 Date Filed: 09/22/2017 Page: 31 of 3332 and second prongs for success on the merits coalesce into a single inquiry. The fact that a single showing satisfies both requirements for Johnson relief, however, in no way diminishes the evidentiary burden of a movant or otherwise shifts that burden to the Government. Again, Beeman must prove that it was more likely than not that he was sentenced under the r esidual clause in order to succeed on his Johnson claim. I believe that Beeman has done so by demonstrating that he could not have been sentenced under any other clause of the ACCA. Because it is uncontested that Beeman does not qualify under the enumera ted clause, and because there are only two other ways to qualify as a career offender under the ACCA, dis proving one is necessarily proof of the other. See In Re Chance , 831 F.3d at 1340. Beeman’s showing that he could not have been convicted under the

e lements clause of the ACCA 8 is therefore proof of both requirements for success on the merits of a Johnson claim: first, that he was sentenced under the residual clause, and second, that his predicate offenses could not qualify under the ACCA absent that p rovision. I can ascertain no basis upon which to exclude this type of circumstantial evidence in evaluating a movant’s habeas petition, and, as noted

8 Since the majority finds that Be eman has not adequately established that he was sentenced

under the residual clause, they do not address the question of whether his predicate offense of aggravated assault in Georgia could qualify him for an ACCA sentence under the language of the element s clause. As noted at the outset, this question was fully briefed by both P arties , who agree that the modified categorical approach i s the proper standard here. Applying that standard to the Georgia statute , Beeman’s aggravated assault predicate likely w ould not qualify as a crime of violence under the elements clause.

Case: 16-16710 Date Filed: 09/22/2017 Page: 32 of 3333 above, believe that doing so would create an unjustifiable procedural bar based solely on the manner in w hich a movant’s sentence was pronounced. I do not take issue with the importance of finality of judgments in our legal system or the importance of efficiency in the apportionment of judicial resources wherever possible. But the vindication of constitution al rights must be of paramount importance in any decisions that impact access to the courts. In deciding to make Johnson retroactively applicable, the Supreme Court considered these conflicting interests, and concluded that “ where the conviction or senten ce in fact is not authorized by substantive law, then finality interests are at their weakest. ” Welch , 136 S. Ct. at 126 6. Accordingly, while I under stand the majority’s desire to identify a bright

- line rule through which unmeritorious Johnson claims can be culled without engaging in a predicate

- by

- predicate determination of what crimes still qualify under the ACCA, I cannot agree to a standard that excludes petitioners because the process of evaluation is particularly laborious . I fear that the practical effect of today ’ s opinion is that ma ny criminal defendants like Beeman who were, in fact, sentenced under a constitutionally infirm statute will be denied their right to seek the relief to which they may very well be entitled by the holdings of t he Supreme Court. For that reason, I respectfully dissent.

Case: 16-16710 Date Filed: 09/22/2017 Page: 33 of 33