Mason v. United States Of America

Filing 9

ORDER STAYING CASE until the Supreme Court decides Beckles. Signed by Magistrate Judge G. R. Smith on 11/7/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
PERRY DEAN MASON,
Movant,

CV416-172
CR499-238

v.
UNITED STATES OF AMERICA,
Respondent.

ORDER
Over a decade ago this Court denied Perry Mason’s first 28 U.S.C.
§ 2255 motion on the merits. CR499-238, doc. 41, adopted, doc. 51. ,
certificate of appealability denied, doc. 53. In this, his numerically
third § 2255 motion, 1 doc. 101, he seeks to exploit the new rule
announced in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551
(2015), made retroactive by Welch v. United States, 578 U.S. __, 136
S. Ct. 1257 (2016), to neutralize the 262-month enhanced sentence he
received for five prior convictions for robbery in Florida. Doc. 101
(disputing the sentence as a career offender under U.S.S.G. § 4B1.2),

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This may in fact be Mason’s fourth such motion. Still pending on this Court’s
docket is his “motio n for writ of audita querela ,” doc. 93, which he filed on July 13,
2015. A preliminary peek at the motion strongly suggests a § 2255 motion in
disguise, which would make the present motion Mason’s fourth.

see docs. 19 & 20.
Mason successfully sought and received permission from the
Eleventh Circuit to file a successive § 2255 motion, and the panel
cautioned that the language in U.S.S.G. § 4B1.2 may soon be found
unconstitutional.

In re: Perry Dean Mason , No. 16-14303-J (11th Cir.

July 29, 2016) (attached). The Supreme Court recently granted
certiorari in Beckles v. United States, No. 15-8544, 136 S. Ct. 2510
(June 27, 2106), as to whether

Johnson applies to the Sentencing

Guidelines’ definition of “crime of violence” and, if so, whether the
Beckles decision will apply retroactively to cases on collateral review.
In its Response to Mason’s § 2255 motion, the Government obliquely
requests a stay pending a decision in Beckles . Doc. 109.
The Court agrees and therefore STAYS this case until the
Supreme Court decides Beckles. The Government shall file a Revised
Response to Mason’s § 2255 motion within 21 days of the Supreme
Court’s decision in Beckles.

SO ORDERED, this 7th day of November, 2016.

LTMTED STATES MAGISTRATE ILJDGE
SOUThER}' DISTRICT OF GEORGIA

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 16-14303-J

IN RE: PERRY DEAN MASON,
Petitioner.

Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)

Before TJOFLAT, WILSON, and MARTIN, Circuit Judges.
ORDER:
Perry Dean Mason has filed a pro se application for permission to file a
28 U.S.C. § 2255 motion based on Johnson v. United States, 576 U.S. ___, 135
S. Ct. 2551 (2015). Because Mr. Mason previously filed a § 2255 motion, his new
motion must be “certified as provided in section 2244 by a panel of the appropriate
court of appeals to contain . . . a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h)(2). “The court of appeals may authorize the filing of a second
or successive application only if it determines that the application makes a prima

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facie showing that the application satisfies the requirements of this subsection.”
Id. § 2244(b)(3)(C).
Mr. Mason was sentenced using language in United States Sentencing
Guideline § 4B1.2 that is identical to the language that the Supreme Court held
unconstitutional in Johnson. The government agrees that Johnson makes the
identical § 4B1.2 language unconstitutional as well, at least on direct appeal. But
our Court has ruled that it doesn’t. See United States v. Matchett, 802 F.3d 1185
(11th Cir. 2015). The Supreme Court will hear a case next term that will allow the
Court to evaluate our rulings in Matchett and Griffin. See Beckles v. United
States, No. 15-8544, 2016 WL 1029080, at *1 (U.S. June 27, 2016). We recognize
that the “grant of certiorari does not constitute new law.” Ritter v. Thigpen, 828
F.2d 662, 665–66 (11th Cir. 1987). But our task here is not to conclusively decide
Mr. Mason’s § 2255 motion. Rather, the question before us is whether Mr. Mason
made “a sufficient showing of possible merit to warrant a fuller exploration by the
district court.” In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). And if the
Supreme Court thinks Travis Beckles’s case is worth hearing, then Mr. Mason’s
case also has enough “possible merit to warrant a fuller explanation.” Id.
We therefore hold that Mr. Mason can file a § 2255 motion based on
Johnson in the District Court at this time. If Mr. Mason files a § 2255 motion in

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the District Court prior to the Beckles decision, the District Court may wish to stay
the proceedings until the Supreme Court’s decision.
APPLICATION GRANTED.

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TJOFLAT, Circuit Judge, dissenting:
Perry Dean Mason was sentenced as a career offender under the Sentencing
Guidelines based on his two Florida robbery convictions that each constituted a
prior felony conviction of a crime of violence pursuant to United States Sentencing
Guideline § 4B1.2(a)(2). Mason has filed an application for permission to file a
successive 28 U.S.C. § 2255 motion, arguing that Johnson v. United States , 576
U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), should be applied to
invalidate his sentence under the Sentencing Guidelines. This Court has already
held that Johnson does not apply to the Sentencing Guidelines for the purpose of a
petitioner’s application for leave to file a successive § 2255 petition. In re Griffin ,
No. 16-12012, 2016 WL 3002293 (11th Cir. May 25, 2016). Enigmatically, the
majority grants Mason’s petition, reasoning that the United States Supreme Court’s
grant of certiorari to review whether Johnson applies to the Sentencing Guidelines
is sufficient to merit a prima facie case. See Beckles v. United States , No. 15-8544,
2016 WL 1029080, at *1 (U.S. June 27, 2016). But “[a] grant of certiorari in
Beckles does not and cannot serve as a ground for granting an application to file a
second or successive § 2255 motion.” In re Brad Bradley Bradford, No. 16-14512,
2016 WL 4010437, at *2 (11th Cir. July 27, 2016). Our precedent is clear—
Johnson does not apply to the Sentencing Guidelines, and “ Beckles cannot serve

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and does not serve to establish a prima facie case under § 2255(h)(2).” Id.
Accordingly, Mason’s application should be denied. I respectfully dissent.