[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-16710

________________________

D.C. Docket Nos. 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.

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In 2009 Jeffrey 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 substance 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), the 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 Georgia 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. 

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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 for 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 

otherwise 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 

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distribute and concluded that, based on those convictions, 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 felony 

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 unconstitutionally 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 ACCAenhanced 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 sentenced 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 

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assault conviction was not a violent felony under the enumerated offenses clause 

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 

elements 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 qualifies 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, 133 S. Ct. 2276; Shepard v. United States, 544 U.S. 

13, 125 S. Ct. 1254 (2005); Taylor v. United 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 judgment 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 assault 

qualifies as a violent felony under the ACCA’s elements clause. 

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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. Typically, 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 the Supreme Court, if that right has been newly recognized 

by the Supreme Court and made retroactively applicable to cases on collateral 

review.” Id. § 2255(f)(3). 

The § 2255(f) statute of limitations “requires a claim-by-claim approach to 

determine timeliness.” See Zack v. Tucker, 704 F.3d 917, 924, 926 (11th Cir. 

2013) (en banc); accord Davis v. United States, 817 F.3d 319, 327–28 (7th Cir. 

2016) (“But as every other circuit to have considered the question has concluded, 

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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 the new decision, 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 cases 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 28 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

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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.” Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 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). 

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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 motion 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 sentenced 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 his 

§ 2255 motion. He focused largely on an argument that the 2013 Descamps

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 he 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 assault in Georgia was a crime “which 

historically qualified as an ACCA predicate under that statute’s residual clause.” 

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Therefore, he contended that the Johnson decision required he be resentenced 

without the ACCA enhancement. That sounds like a Johnson claim. 

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 ground. 

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 understandable. 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 Eleventh 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 Johnson 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.

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Regardless of the ground stated in the district court’s order or judgment, 

“[w]e may 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, and 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 1345, 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 even 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.

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sentencing court relied solely on the 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 least 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 sentence, 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 that 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 that 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 dicta 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. We have examined this issue afresh in reaching our 

conclusion based on what we see as traditional legal principles. 

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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 show 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 United 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, 341 (2d Cir. 1971) 

(stating, in the context of an appeal from the denial of a § 2255 motion, that 

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“[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 conviction, 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 

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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 willing 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 speculate 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 conceivably 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 fundamental 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 

direct 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. 

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3383, 3391–92 (1983). Finality “is essential to the operation of our criminal 

justice system. 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 undermine 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 wellestablished principles developed 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 are 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 

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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 overhauled 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 is 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 proof 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 lose 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 

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Beeman concedes that there 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 in 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 qualified as a violent felony only 

under the residual clause.

5

 Instead, citing 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 that 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 enumerated 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 prosecutor 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 Beeman 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 sentenced 

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 clause (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.

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Beeman—relying only on cases involving Florida burglary 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, are 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 unclear6 from 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 happened . . . 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, 56, 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 or 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.

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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 burden 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 sentence, he cannot prevail. 

For that reason, we AFFIRM.

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WILLIAMS, District 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 Criminal Act (“ACCA”), or that his 

claim is substantively without merit. Specifically, I do not believe that the merits 

of Beeman’s timely Johnson claim can be properly assessed without reaching the 

question of whether his conviction for aggravated assault in Georgia qualifies as a 

proper predicate offense under the elements clause 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 Welch 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 States, 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 

recommendation adopted, No. 16-cv-14247-JEM (S.D. Fla. Feb. 14, 2017).

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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 the 

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 offenses, or the remainder of the Act’s definition of a violent 

felony.”). 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 clause—which would constitute an untimely 

Descamps claim. Specifically, the majority observes that Beeman’s petition 

“focused largely on an argument that the 2013 Descamps decision meant that his 

Georgia conviction for aggravated assault could no longer qualify 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 

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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, the 210-month prison sentences on Counts One and Four, each imposed 

under [the ACCA], are unlawful.” 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 Beeman 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 in the context 

of second or successive habeas petitions that “when 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 gatekeeping requirements [of 28 U.S.C. § 

2255(h)]’ . . . in determining whether a prior conviction would still support 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 ambiguity 

surrounding the sentencing court's decision requires us to look to the text of the 

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relevant statutes, [and] . . . guiding precedent, such as Descamps, to ensure we 

apply the correct meaning of the ACCA's words.”). Similarly, establishing that a 

predicate offense could not qualify under the elements clause by applying the 

Descamps framework has been part and parcel of many district court 

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. 4:16-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); Nichols v. United States, No. 1:04-CR-68-TRMCHS-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, the 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 

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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. But 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 demonstrate 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 to 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 artificially 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.

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has set up a straw man regarding Beeman’s Johnson arguments that they 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 serious 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 answering 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 basis 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 must apply Descamps and other 

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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 clear/unclear 

paradigm and approaching a Johnson claim differently in the context of an initial 

habeas petition.3

 Indeed, many 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 they 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 court 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 the 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. 

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record—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 this 

test—in other words, any standard under which an unclear sentencing record 

precludes 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 specified 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 

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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 employed 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 States, 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 clause,’ 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 

States v. Geozos, No. 17-35018, 2017 WL 3712155 (9th Cir. Aug. 29, 2017) 

 4 See also United States v. Winston, 850 F.3d 677, 682 (4th 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 omitted).

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 basis 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.”).

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(citing with approval In re Chance, 831 F.3d 1335). If Johnson means that an 

inmate’s [] companion conviction 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 residual 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 clause 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” 

sentencing record is neither a bar to, nor sufficient for, success on the merits of a Johnson 

claim. 

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“untimely Descamps claim” 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 succeed. 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 under 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 inquiry 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.

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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 residual 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 enumerated clause, and 

because there are only two other ways to qualify as a career offender under the 

ACCA, disproving 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 

elements clause of the ACCA8 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 provision. 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 Beeman 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 elements clause. As noted at the outset, this question was fully briefed by both Parties, 

who agree that the modified categorical approach is the proper standard here. Applying that 

standard to the Georgia statute, Beeman’s aggravated assault predicate likely would not qualify 

as a crime of violence under the elements clause. 

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above, believe that doing so would create an unjustifiable procedural bar based 

solely on the manner in which 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 constitutional 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 sentence in 

fact is not authorized by substantive law, then finality interests are at their 

weakest.” Welch, 136 S. Ct. at 1266. Accordingly, while I understand 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 many 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 the Supreme Court. For that reason, I 

respectfully dissent.

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