ORDER

JAMES S. MOODY, Jr., District Judge.

THIS CAUSE comes before the Court on Petitioner's Motion for Certificate of Appealability (Doc. 30). In the Motion, Petitioner requests a Certificate of Appealability ("COA") on three issues: (1) whether Petitioner must show his sentence may have relied on the invalidated residual clause of the Armed Career Criminal Act ("ACCA"), or whether he must show it actually relied on the residual clause; (2) whether Petitioner can show cause and prejudice for procedurally defaulting his claim that his ACCA sentence is unconstitutional; and (3) whether Petitioner was unconstitutionally sentenced above the statutory maximum for his conviction of possession of a firearm by a convicted felon. The Court concludes Petitioner is entitled to a COA on the first issue.

PROCEDURAL HISTORY

Petitioner was indicted in March 2006 for conspiracy to distribute and possession with intent to distribute cocaine and MDMA (count one), for aiding and abetting Jose Perez in knowingly and intentionally possessing with intent to distribute MDMA (count two), and for being a convicted felon in possession of ammunition (count three). (CR Doc. 17). Petitioner pled guilty to counts one and three, and count two was dismissed. (CR Docs. 50 and 60). On December 14, 2006, the Court entered judgment against Petitioner and sentenced him to 200 months' imprisonment on counts one and three, with the sentences to run concurrently. (CR Doc. 79). The Court also sentenced Petitioner to eight years' and five years' supervised release on counts one and three respectively. (CR Doc. 79).

The Court's sentence was imposed after consideration of the PSR, which recommended Petitioner be sentenced as an armed career criminal, under 18 U.S.C. section 924(e), and as a career offender, under USSG section 4B1.1. Because Petitioner's prior convictions are relevant to these enhancements, the Court will set them out here in full:

(CR Doc. 96). The PSR provided that the convictions in cases 94-CF-009859, 96-CF-007437, and 96-CF-015940 (the "PSR Cases") were relied on as the qualifying prior convictions to enhance Petitioner's sentence. (CR Doc. 96, ¶ 48). Petitioner did not object to the PSR (CR Doc. 92, 4:13-19), and did not appeal.

Within a year of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner filed his section 2255 motion. In it, Petitioner argued his armed career criminal sentence is unconstitutional because his "convictions for burglary of a structure and carrying a concealed firearm no longer qualify as `violent felonies.'" (CV Doc. 12, p. 3). And, Petitioner argued, he does not have three other qualifying offenses that occurred on separate occasions. Petitioner did not challenge his career offender designation.

After considering the motion, the Government's response, a reply, and sur-reply, the Court denied Petitioner's motion. The Court's reasoning was two-fold: First, Petitioner had not demonstrated that his armed career criminal sentence actually relied on his convictions for burglary of a structure or carrying a concealed firearm. Second, Petitioner had procedurally defaulted his ability to challenge whether his multiple serious drug offense convictions could serve as the predicate ACCA convictions, and he could not demonstrate cause for the procedural default.3 When discussing the procedural default, the Court explained that the thrust of Petitioner's arguments were based on Mathis v. United States, 136 S.Ct. 2243, 195 L. Ed. 2d 604 (2016), which is not a basis to file a section 2255 motion more than a year after his sentence became final. Finally, the Court noted that removing the ACCA designation would have no effect on Petitioner's sentence because his offense level was based on his career offender designation, which Petitioner did not challenge.

DISCUSSION

A COA is required to appeal a final order in a proceeding under 28 U.S.C. section 2255. To obtain a COA, a section 2255 movant must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2255(c)(2). The movant satisfies this requirement by demonstrating that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," or that the issues "deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Having considered Petitioner's request, the Court concludes Petitioner is entitled to a COA for the first issue he raises.

A. Whether Petitioner Has Burden to Show His Sentence May Have or Actually Relied on Invalidated ACCA Residual Clause

The Court concludes Petitioner is entitled to a COA on the issue of what his burden of proof is in his section 2255 motion. The Eleventh Circuit has issued conflicting opinions about what a section 2255 petitioner must prove. In In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016), the Eleventh Circuit explained:

This opinion is in line with this Court's reasoning on the issue. Contrarily, though, another panel of the Eleventh Circuit explained less than a week later in In re Chance, 831 F.3d 1335, 1338-42 (11th Cir. 2016), that it believed the In re Moore dicta was wrong. Because of this split within the Eleventh Circuit, it is obvious that reasonable jurists would find the Court's reliance on In re Chance's reasoning debatable. As such, Petitioner is entitled to a COA on this issue.

B. Whether Petitioner Can Show Cause and Prejudice for Procedurally Defaulting His Challenge to His ACCA Sentence

The Court concludes Petitioner is not entitled to a COA on this issue because it is inapplicable to this case. Petitioner argues that "reasonable jurists can debate whether Mr. Garcia can show cause for his default, because the legal basis of his claim was unavailable at the time for filing his direct appeal." (CV Doc. 30, p. 10). Petitioner goes on to argue that his claim was not available because, until Johnson, "no court had held the residual clause void for vagueness, and the Supreme Court had twice rejected such challenges." (CV Doc. 30, p. 11). But the Court's Order denying Petitioner's section 2255 motion did not say Petitioner could not show cause for procedurally defaulting his Johnson claim. Rather, the Order stated (1) Petitioner had not demonstrated he had a Johnson claim; and (2) Petitioner had procedurally defaulted his ability to challenge whether his multiple serious drug offense convictions could serve as the predicate convictions for his ACCA sentence. The Court's procedural default ruling, therefore, did not concern Petitioner's Johnson claim. Thus, no COA should be issued.

C. Whether Petitioner Was Sentenced above the Statutory Maximum for His Possession of a Firearm by Convicted Felon Conviction

The Court concludes Petitioner is not entitled to a COA on his third issue because the Court did not address it in its Order denying Petitioner's section 2255 motion. Petitioner's third issue essentially re-argues the merits of the section 2255 motion. Specifically, Petitioner argues that reasonable jurists could debate whether Petitioner's remaining convictions can serve as sufficient predicate offenses for Petitioner's ACCA sentence. But as explained above, the Court did not get to that part of the analysis in its Order. Instead, the Court denied Petitioner's section 2255 motion because (1) Petitioner had not demonstrated he had a Johnson claim; and (2) Petitioner had procedurally defaulted his ability to challenge whether his multiple serious drug offense convictions4 could serve as the predicate convictions for his ACCA sentence. While the Court believes that guidance from the Eleventh Circuit on the issues Petitioner raises would be useful, the Court does not believe it appropriate to issue a COA for issues unrelated to the reasoning in its Order.

Accordingly, it is ORDERED AND ADJUDGED that:

DONE and ORDERED.