from the United States District Court for the Southern
District of Texas
ELROD, GRAVES, and HO, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE
the court is Defendant Keeland Duralle Williams's motion
for reconsideration of the denial of his application for a
certificate of appealability (COA). We GRANT
the motion, withdraw the prior order of March 9, 2018, and
substitute the following:
2014, Defendant Keeland Duralle Williams, who proceeds before
this court pro se, was convicted of aiding and
abetting bank robbery, in violation of 18 U.S.C. §§
2113(a) & (d) (Count One), and aiding and abetting the
carrying and brandishing of a firearm in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c) (Count
Two). The district court sentenced him to seventy months of
imprisonment on Count One and a consecutive eighty-four-month
term of imprisonment on Count Two. Williams did not appeal,
but he later filed a 28 U.S.C. § 2255 motion, which the
district court dismissed as time-barred. He seeks a COA in
this court, arguing that (1) reasonable jurists would debate
whether the district court erred in determining that his
§ 2255 motion was time-barred because Welch v.
United States, 578 U.S. ___, 136 S.Ct. 1257 (2016), made
Johnson v. United States, 576 U.S.___, 135 S.Ct.
2551 (2015), in which the Supreme Court invalidated the
residual clause of the Armed Career Criminal Act of 1984, 18
U.S.C. § 924(e)(2)(B)(ii), retroactive to cases on
collateral review; (2) his § 2255 motion was timely
filed under § 2255(f)(3) within one year of
Johnson; and (3) in light of Johnson, the
residual clause of 18 U.S.C. § 924(c)(3)(B), the statute
under which he was sentenced, was unconstitutionally vague.
habeas proceedings are subject to the rules prescribed by the
Anti-terrorism and Effective Death Penalty Act (AEDPA).
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir.
2015); see 28 U.S.C. § 2254. Under AEDPA, a
federal habeas petitioner may appeal a district court's
dismissal of his § 2255 motion only if the district
court or the court of appeals first issues a certificate of
ap-pealability. 28 U.S.C. §§ 2253(c)(1)(B) &
2253(c)(2); Buck v. Davis, 580 U.S. ___, ___, 137
S.Ct. 759, 773 (2017); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). When a district court has denied
relief on procedural grounds, "the petitioner seeking a
COA must show both 'that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.'" Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
initial review of Williams's application, this court
posited that Williams could not make the required showing
because "Johnson and Welch addressed
18 U.S.C. § 924(e)(2)(B)(ii) rather than the residual
clause of . . . § 924(c)(3)(B)," and "[t]his
court has declined to extend the holding in Johnson
to invalidate the residual clause of §
924(c)(3)(B)." As support for this position, we cited
two cases ___United States v. Jones, 854 F.3d 737,
740 (5th Cir.), cert. denied, 583 U.S. __, 138 S.Ct.
242 (2017), and United States v. Chapman, 851 F.3d
363, 374-75 & n.7 (5th Cir. 2017) ___ in which we had
ruled that the argument that § 924(c)(3)(B) is
unconstitutionally vague under Johnson was
foreclosed by our en banc decision in United States v.
Gonzalez-Longoria, 831 F.3d 670, 675-77 (5th Cir. 2016)
(en banc) (holding that the definition of "crime of
violence" found in 18 U.S.C. § 16(b), which is
identical to the definition found in § 924(c)(3)(B),
"remains constitutional in the aftermath of
Johnson"), vacated, 585 U.S. ___ (June
three months ago, in Sessions v. Dimaya, 584 U.S.
___, 138 S.Ct. 1204 (2018), the Supreme Court held that
§ 16(b)'s definition of "crime of
violence," as used in the Immigration and Nationality
Act, is unconstitutionally vague, abrogating (and later
affirmatively vacating) Gonzalez-Longoria. See
id. at 1213-16, 1223 & 1212 n.2.; see also
Gonzalez-Longoria, 585 U.S. at ___ (vacating the
judgment and remanding the case "for further
consideration in light of"
Dimaya). Respecting the Court's ruling, which
vitiated the sole ground upon which we had ruled that
Williams was not entitled to a COA, we requested briefing
from the parties on the effect, if any, of
Dimaya's holding on Williams's application.
2255(f)(3), which governs the timeliness of Williams's
§ 2255 motion, provides that a motion must be filed
within one year from the latest of "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." 28 U.S.C. § 2255(f)(3); see
also generally Dodd v. United States, 545 U.S.
353 (2005). The Supreme Court held in Johnson that
§ 924(e)(2)(B)(ii) is unconstitutionally vague-which
commenced the one-year clock for defendants sentenced under
that statute-and held in Di-maya that § 16(b)
is unconstitutionally vague-which commenced the one-year
clock for defendants sentenced under that statute-but it has
made no predicate holding vis-à-vis §
924(c)(3)(B). Though the Court has instructed the courts of
appeals to reconsider § 924(c)(3)(B) cases in
light of Dimaya, see, e.g., United
States v. Jackson, 584 U.S. ___, 138 S.Ct. 1983 (2018);
United States v. Jenkins, 584 U.S. ___, 138 S.Ct.
1980 (2018), that instruction does not amount to a
determination that the provision is unconstitutional. There
is no "newly recognized" right for Williams to
924(c)(3)(B) remains valid. An assumption that the statute
will eventually be invalidated at some indeterminate point
cannot overcome the timeliness requirement of §
2255(f)(3). For Williams's motion to even be considered,
the statute must actually have first been invalidated. The
one-year clock on § 924(c)(3)(B) has not yet started. So
in that sense, his motion is untimely, but because
it was filed too early, not too late. Cf. United States
v. Santistevan, ___ Fed.Appx. ___, ___, 2018 WL 1779331,
at *3 (10th Cir. Apr. 13, 2018) ("[A]n initial §
2255 motion invoking Johnson [is] not timely under
§ 2255(f)(3) when the underlying statute of conviction
[is] § 924(c), not the ACCA.").
§ 924(c)(3)(B) is ultimately held to be
unconstitutional, that finding may open the door to future
collateral challenges to sentences rendered under that
statute. But that has not yet come to pass, so we cannot
consider such a challenge at this time. We conclude that
jurists of reason would not find it debatable that
the district court was correct in its procedural ruling.
See Gonzalez, 565 U.S. at 140-41.
application for a certificate of appealability is