Case: 20-30420 Document: 00516291389 Page: 1 Date Filed: 04/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-30420 April 22, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Sheldon W. Hanner,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CV-1063
Before Southwick, Haynes, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Sheldon Hanner, federal prisoner # 13875-035, appeals the district
court’s order denying his second 28 U.S.C. § 2255 motion. In 2008, Hanner,
who had previously been convicted of aggravated burglary, manslaughter,
and second degree battery, was convicted of being a felon in possession of a
firearm and sentenced to 300 months imprisonment under the Armed Career
Criminal Act (ACCA), which mandates a 15-year minimum prison sentence
for certain persons with three previous “violent felony” convictions. See
18
U.S.C. § 924(e). After Hanner’s sentence was upheld both on direct appeal
and in an initial § 2255 proceeding, Hanner moved this court for
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No. 20-30420
authorization to file a second § 2255 motion, arguing that given the Supreme
Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), his
aggravated burglary conviction does not qualify as a “violent felony” for
purposes of ACCA. We granted the motion, expressly mentioning only
Hanner’s aggravated burglary and second degree battery convictions in our
order. However, after the proceeding was transferred to the district court,
Hanner argued for the first time that Johnson also applies to his manslaughter
conviction, and his appeal raises this issue exclusively. Because Hanner
neither asked for nor received authorization to raise this issue in his second
§ 2255 motion, we VACATE the district court’s order in part and
DISMISS Hanner’s motion to the extent that it raises this issue. The
district court’s order is otherwise AFFIRMED.
I.
In 2008, a jury convicted Sheldon W. Hanner of being a felon in
possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1).
Pursuant to the Armed Career Criminal Act, which mandates a 15-year
minimum sentence for § 922(g) defendants who have, inter alia, three
previous “violent felony” convictions, see
18 U.S.C. § 924(e), the
presentence report (PSR) assessed Hanner a total offense level of 34 and a
statutory sentencing range of 15 years to life imprisonment. The PSR cited a
1978 Louisiana aggravated burglary conviction, a 1984 Louisiana
manslaughter conviction, and 1995 Louisiana second degree battery
conviction as predicates for the ACCA enhancement.
Hanner objected to the PSR’s use of his manslaughter conviction as
an ACCA predicate. The sentencing court overruled his objection, though
without specifying which of § 924(e)(2)(B)’s three clauses it was relying on
to conclude that Hanner’s manslaughter conviction qualifies as a “violent
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felony” for purposes of the statute.1 Hanner was then sentenced to 300
months imprisonment and five years of supervised release.
We affirmed Hanner’s conviction on direct appeal. United States v.
Hanner, 354 F. App’x 7, 9 (5th Cir. 2009). Hanner did not challenge his
sentence in that appeal. See
id. at 8-9. However, he subsequently filed a
28
U.S.C. § 2255 motion arguing that his appellate counsel rendered ineffective
assistance for failing to pursue the claim that his conviction for manslaughter
was not a “violent felony.” The district court denied the motion, and we
affirmed, concluding that Hanner’s manslaughter conviction qualifies as a
“violent felony” under § 924(e)(2)(B)’s “elements clause” and therefore
that Hanner’s appellate counsel did not render ineffective assistance. United
States v. Hanner,
549 F. App’x 289, 291-93 (5th Cir. 2013).
After the denial of Hanner’s initial § 2255 motion, the Supreme Court
held in Johnson v. United States that § 924(e)(2)(B)’s “residual clause” is
unconstitutionally vague. 576 U.S. 591, 593-97 (2015) (quoting
18 U.S.C.
§ 924(e)(2)(B)(ii)). Hanner subsequently moved this court for authorization
to file a successive § 2255 motion,2 arguing that, in light of Johnson, his prior
conviction for aggravated burglary no longer qualifies as an ACCA predicate.
1
Section 924(e)(2)(B) defines the term “violent felony” as “any 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.” 18 U.S.C. § 924(e)(2)(B)
(emphasis added). The first clause is known as the “elements clause”; the beginning of
(ii) is known as the “enumerated offenses clause”; and the italicized portion of (ii) is known
as the “residual clause.” United States v. Taylor,
873 F.3d 476, 477 n.1 (5th Cir. 2017).
2
See 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals.”); see also Reyes-Requena v. United States,
243 F.3d 893, 897-99 (5th Cir. 2001) (describing requirements for
certification).
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We issued an unpublished order tentatively granting the motion, explaining
as follows:
In this case, an ACCA enhancement was applied, in part, based
on Hanner’s Louisiana convictions for aggravated burglary and
second degree battery. We cannot determine from the available
record whether the district court’s enhancement of Hanner’s
sentence under § 924(e) implicates the ACCA’s residual
clause. Therefore, Hanner has made a sufficient showing of
possible merit to warrant a fuller exploration by the district
court. Accordingly, IT IS ORDERED that the motion for
authorization is GRANTED. Our grant of authorization is
tentative in that the district court must dismiss the § 2255
motion without reaching the merits if it determines that
Hanner has failed to make the showing required to file such a
motion.
In re Hanner, No. 16-30589 (5th Cir. July 15, 2016) (internal quotation marks
and citations omitted). We then directed the Clerk to transfer the motion and
related pleadings to the district court. Id.
In the district court, Hanner argued that all three of his prior
convictions—his manslaughter conviction as well as his aggravated burglary
and second degree battery convictions—do not qualify as ACCA predicates
in light of Johnson. The district court initially concluded that Hanner had
made the requisite showing to reach the merits of his § 2255 motion.
However, after the Government filed a motion to reconsider, the court
vacated its earlier order and issued a new order denying Hanner’s motion.
The district court explained that “there has never been any question
regarding the applicability under the ACCA of [Hanner’s] prior offenses for
aggravated burglary and second degree battery. Hanner’s defense admitted
as much. The only remaining issue at the time of sentencing was whether the
third conviction, for manslaughter, qualified as a ‘violent felony.’” However,
because the Fifth Circuit had “determined that the manslaughter conviction
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was indeed a crime of violence” on Hanner’s initial § 2255 appeal, the
district court concluded that “the issue of whether the manslaughter charge
qualified [as a ‘violent felony’] has been foreclosed” and that “any inquiry
into whether [the sentencing] court thought, or not, about whether this
offense was under the ‘residual clause’ is moot.” Alternatively, the district
court determined that even if it the issue were not foreclosed, “Hanner has
not met the burden of proof necessary to allow for any change in the sentence
previously imposed,” reasoning that “if it is unclear from the record whether
[the sentencing court] relied on the residual clause, Hanner—who bears the
burden of proof—loses.”
Hanner filed a notice of appeal and moved for a certificate of
appealability (COA).3 The district court granted Hanner a COA on the
following two issues:
(1) Whether the district court reviewing a prisoner’s petition
seeking the district court’s authorization to file a successive
§ 2255 motion raising a Johnson claim can consider legal and
factual developments in the case that occurred after the
original sentencing hearing?
(2) Whether, considering ‘the sentencing record for direct
evidence of a sentence,’ United States v. Wiese, 896 F.3d 720,
725 ([5th Cir.] 2018), the district court more likely than not
sentenced Hanner under the residual clause of the ACCA?
Then, after the parties had filed their initial briefs in this court, we requested
that they file supplemental briefs addressing whether the district court lacked
3
“[I]n a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless
a circuit justice or a circuit or district judge issues a certificate of appealability under
28
U.S.C. § 2253(c).” Fed. R. App. P. 22(b)(1). See also
28 U.S.C. § 2253(c)(2)-(3)
(providing that a COA may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right” and that a COA “shall indicate which specific issue or
issues satisfy” this requirement).
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jurisdiction over Hanner’s claim regarding his manslaughter conviction,
given that the order granting Hanner permission to file a successive § 2255
motion expressly mentioned only Hanner’s aggravated burglary and seconddegree battery convictions.
II.
On appeal, Hanner argues that the sentencing court likely relied on
§ 924(e)(2)(B)’s residual clause when determining that his 1984
manslaughter conviction qualifies as a “violent felony” for purposes of
ACCA, in violation of Johnson, and that the district court erred by
considering factual and legal developments that had occurred after the
original sentencing hearing when denying his § 2255 motion. The district
court concluded that this issue of whether Hanner was sentenced under the
residual clause was foreclosed by our decision in Hanner’s initial § 2255
appeal, see Hanner, 549 F. App’x at 291-93 (determining that Hanner’s
manslaughter conviction qualifies as a “violent felony” under
§ 924(e)(2)(B)’s elements clause), and, alternatively, that Hanner had not
met his burden of proof on this issue.
As a threshold matter, we must determine whether the district court
had jurisdiction to consider the arguments that Hanner raised regarding his
manslaughter conviction. “We must always be sure of our appellate
jurisdiction and, if there is doubt, we must address it, sua sponte if
necessary.” Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999). “If the
district court lacked jurisdiction, our jurisdiction extends not to the merits
but merely for the purpose of correcting the error of the lower court in
entertaining the suit.” United States v. Key,
205 F.3d 773, 774 (5th Cir. 2000)
(cleaned up).
A strict set of jurisdictional rules governs proceedings involving
successive § 2255 motions. As we have previously explained, “[t]here are
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two requirements, or ‘gates,’ which a prisoner making a second or successive
habeas motion must pass to have it heard on the merits.” United States v.
Wiese, 896 F.3d 720, 723 (5th Cir. 2018). At the first gate,
we must grant the prisoner permission to file a second or
successive motion, which requires the prisoner to make a
“prima facie showing” that the motion relies on a new claim
resulting from either (1) “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable,” or (2) newly
discovered, clear and convincing evidence that but for the error
no reasonable fact finder would have found the defendant
guilty.
Id. (citing
28 U.S.C. §§ 2244(b)(2), (3)(A), (3)(C), 2255(h)). At the second
gate, “the prisoner must actually prove at the district court level that the
relief he seeks relies either on a new, retroactive rule of constitutional law or
on new evidence. If the motion does not, the district court must dismiss
without reaching the merits.”
Id. (citing
28 U.S.C. § 2244(b)(2), (4)).
By considering Hanner’s claim that his manslaughter conviction did
not count as an ACCA predicate after Johnson, the district court tacitly
assumed that Hanner had already passed through the first jurisdictional gate
with respect to that issue. However, when Hanner moved this court for
authorization to file a second § 2255 motion, he argued only that his
aggravated burglary conviction no longer qualifies as an ACCA predicate, and
when we granted his motion, we specified only his aggravated burglary and
second degree battery claims. Thus, Hanner neither sought nor obtained
permission to file a successive § 2255 motion raising the claim that his
manslaughter conviction no longer qualifies as an ACCA predicate.
Accordingly, the district court lacked jurisdiction to consider the issue. See
28 U.S.C. §§ 2244(b)(3), 2255(h) (requiring a prisoner to seek authorization
from the court of appeals before the district court can consider a second or
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successive § 2255 motion); Wiese, 896 F.3d at 723 (explaining that the
requirements of §§ 2244(b) and 2255(h) are jurisdictional); United States v.
Winterroth,
759 F. App’x 299, 303 (5th Cir. 2019) (unpublished) (concluding
that a prisoner’s “challenge to his robbery conviction is not properly before
us” because, among other reasons, the prisoner “never sought or obtained
permission to file a successive habeas petition on the grounds that his robbery
conviction was improperly treated as an ACCA predicate conviction” (citing
28 U.S.C. §§ 2244(b)(3), 2255(h))).
We have jurisdiction to correct the district court’s error in exceeding
its own jurisdiction. See Key, 205 F.3d at 774. Therefore, we VACATE the
district court’s order denying Hanner’s § 2255 motion to the extent that the
order discusses whether Hanner’s manslaughter conviction qualifies as an
ACCA predicate and DISMISS Hanner’s motion to the extent that it raises
that issue. See Wiese,
896 F.3d at 721-22 (vacating the district court’s
judgment and dismissing a second § 2255 motion because the movant “had
not established a jurisdictional predicate for his successive habeas motion”);
United States v. McDaniels,
907 F.3d 366, 369-70 (5th Cir. 2018) (“The
district court was without jurisdiction to hear McDaniels’s substantive
claims under the Fifth and Sixth Amendments. Because they attack the
district court’s previous ruling on the merits, they constitute a successive
habeas application. Hence, we dismiss the appeal as to those issues.”
(footnote omitted)).
III.
Hanner did pass through the first jurisdictional gate with respect to
his claims that his aggravated burglary and second degree battery convictions
no longer qualify as ACCA predicates. See In re Hanner, No. 16-30589 (5th
Cir. July 15, 2016). However, he conceded in the district court that he had
not passed through the second jurisdictional gate with respect to those
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convictions, and he does not argue otherwise on appeal.4 Accordingly, the
district court’s order is AFFIRMED to the extent that it denied his § 2255
motion with respect to those convictions.
IV.
In his supplemental brief, Hanner concedes that neither the district
court nor this court have jurisdiction to consider whether, in light of Johnson,
the sentencing court improperly treated his manslaughter conviction as an
ACCA predicate. However, Hanner asks the court to consider whether his
manslaughter conviction qualifies as an ACCA predicate under the Supreme
Court’s decision in Borden v. United States, which held that, for purposes of
§ 924(e)(2)(B)’s elements clause, a criminal offense does not “count as a
‘violent felony’ if it requires only a mens rea of recklessness.” 141 S. Ct. 1817,
1821-22 (2021).
Though Hanner cites no authority that would allow the court to grant
him this relief, we can construe Hanner’s supplemental brief as a request to
authorize the filing of a successive § 2255 motion. See Kutzner v. Cockrell, 303
F.3d 333, 335, 339 (5th Cir. 2002) (considering an appeal from an
unauthorized successive § 2255 motion to be a request for authorization to
file a successive § 2255 motion, and denying the request because it did not
“meet the successive petition requirements of” § 2244(b)). As explained
above, we will only grant such a motion if the prisoner makes
4
Hanner does argue that the district court’s allegedly erroneous conclusion that
he had not passed through the second jurisdictional gate with respect to his manslaughter
claim “is not harmless” because “neither his aggravated burglary nor his manslaughter
conviction would qualify as ACCA priors at the merits stage.” However, because we
conclude that Hanner never passed through the first jurisdictional gate with respect to his
manslaughter claim, we do not have jurisdiction to consider this argument.
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a “prima facie showing” that the motion relies on a new claim
resulting from either (1) “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable,” or (2) newly
discovered, clear and convincing evidence that but for the error
no reasonable fact finder would have found the defendant
guilty.
Wiese, 896 F.3d at 723 (citing
28 U.S.C. §§ 2244(b)(2), (3)(A), (3)(C),
2255(h)). However, Hanner does not point the court to any newly discovered
evidence, and Borden “did not announce a new rule of constitutional law but
instead addressed a question of statutory construction.” In re Rodriguez,
18
F.4th 841 (5th Cir. 2021). Hanner’s request thus does not meet the
requirements for authorization of a successive § 2255 motion. Accordingly,
it is DENIED.5
V.
For the foregoing reasons, we VACATE the district court’s order
denying Hanner’s § 2255 motion to the extent that the order discusses
whether Hanner’s manslaughter conviction qualifies as an ACCA predicate
and DISMISS Hanner’s motion to the extent that it raises that issue. The
5
Additionally, to the extent that Hanner’s initial brief should be considered a
request to authorize the filing of a successive § 2255 motion on the issue of whether, in light
of Johnson, Hanner’s manslaughter conviction qualifies as an ACCA predicate, we deny
the request as untimely. A § 2255 motion that relies on a new rule of constitutional law
must be filed within one year of “the date on which the right asserted was initially
recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3). While Johnson was decided in
June 2015 and made retroactive in cases on collateral review in April 2016, see Welch v.
United States,
578 U.S. 120 (2016), Hanner first raised the argument that Johnson applied
to his manslaughter conviction in an August 2018 district court filing. See Winterroth, 759
F. App’x at 303 (“To the extent Winterroth’s appeal should be treated as a request to
authorize a successive habeas petition, we deny it. He first made his robbery argument well
after the one-year deadline to raise Johnson as a new rule of constitutional law.” (citations
omitted)).
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district court’s order is otherwise AFFIRMED. Construing Hanner’s briefs
as motions to authorize the filing of successive § 2255 motions, those motions
are DENIED.
11
