ORDER

MARCIA MORALES HOWARD, District Judge.

This case is before the Court on Petitioner Archery Lynn Overstreet's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1; § 2255 Motion) and Supporting Memorandum (Civ. Doc. 11; Memorandum).1 Overstreet pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Court sentenced him to a term of 420 months in prison after determining he was an armed career criminal under § 924(e).2 (See Crim. Doc. 41; Judgment). Overstreet raises a single claim: that the Court wrongly sentenced him under the Armed Career Criminal Act (ACCA) in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The United States has responded (Civ. Doc. 13; Response), and Overstreet has replied (Civ. Doc. 22; Reply). The Court has also considered Overstreet's notice of supplemental authority (Civ. Doc. 23; Supp. Auth.), the United States' response to the supplemental authority (Civ. Doc. 27; Response to Supp. Auth.), and Overstreet's reply (Civ. Doc. 34; Reply Concerning Supp. Auth.). Thus, the matter is ripe for review.

Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings3, the Court has considered the need for an evidentiary hearing and determines that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007).4 For the reasons set forth below, Overstreet's § 2255 Motion is due to be denied.

I. Background

The facts and circumstances of this case are well set out in the Eleventh Circuit's opinion affirming Overstreet's sentence on direct appeal. United States v. Overstreet, 713 F.3d 627, 629-634 (11th Cir. 2013). The Court repeats the essential facts here:

Overstreet, 713 F.3d at 629-31 (footnotes omitted). The Court determined that a Criminal History Category of V underrepresented the severity of Overstreet's criminal record, and therefore departed upward to a Criminal History Category of VI pursuant to U.S.S.G. § 4A1.3. (Crim. Doc. 48; Sentencing Tr. Vol. II at 55-57). The upward departure yielded an advisory sentencing range of 180 to 210 months in prison. Id. at 57.

The Court then varied above the Guidelines range and sentenced Overstreet to a term of 420 months in prison. Id. at 67. In explaining the upward variance, the Court pointed to Overstreet's horrendous criminal history, the fact that being on parole and serving 22 years in prison did not deter him from committing further criminal conduct, and the evidence that Overstreet likely murdered his wife. Id. at 59-67. Based on these facts, the Court explained, a significant upward variance was necessary to protect the public and to deter Overstreet from committing further crimes. Id. at 63.

Overstreet appealed the sentence, "argu[ing] that his ACCA enhancement was unconstitutional because (1) he did not admit the existence of his prior convictions when he pleaded guilty, and (2) the fact that his prior offenses were `committed on occasions different from one another' should have been alleged in the indictment and proven beyond a reasonable doubt." Overstreet, 713 F.3d at 634-35.7 The Eleventh Circuit rejected both of these arguments because they were "foreclosed by binding precedent." Id. at 635; see also Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 239 (1998) (the existence of a defendant's prior convictions need not be alleged in the indictment, admitted, or proven to a jury beyond a reasonable doubt); United States v. Sneed, 600 F.3d 1326, 1332-33 (11th Cir. 2010) (a district court has authority to make the different-occasions determination so long as it limits itself to Shepard-approved8 sources). Overstreet also argued that his sentence was procedurally and substantively unreasonable, but the Eleventh Circuit rejected those arguments as well. Overstreet, 713 F.3d at 636-40. As such, the Eleventh Circuit affirmed Overstreet's sentence. Id. at 640.

Overstreet petitioned the United States Supreme Court for a writ of certiorari, but the Supreme Court denied certiorari review on October 7, 2013. Overstreet v. United States, 571 U.S. 896, 134 S.Ct. 229 (Mem.) (2013). A little less than three years later, on June 23, 2016, Overstreet filed the instant § 2255 Motion to challenge his ACCA sentence.

II. The ACCA and Johnson

Pursuant to 18 U.S.C. § 922(g), a person convicted of being a felon in possession of a firearm is ordinarily subject to a maximum term of imprisonment of 10 years. Under the ACCA, however, that person is subject to an enhanced mandatory minimum sentence of 15 years in prison if he has three or more prior convictions for a violent felony or a serious drug offense, or both, each committed on different occasions. 18 U.S.C. § 924(e)(1). At the time of Overstreet's offense conduct and sentencing, the term "violent felony" included "any crime punishable by imprisonment for a term exceeding one year" that

18 U.S.C. § 924(e)(2)(B) (emphasis added). Subsection (i) of this provision is referred to as the "elements clause," the first nine words of subsection (ii) are referred to as the "enumerated clause," and the rest of subsection (ii), which is emphasized above, is referred to as the "residual clause." Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016).

In Johnson v. United States, the Supreme Court held that the residual clause is unconstitutionally vague. 135 S. Ct. at 2557-58, 2563. However, the Supreme Court made clear that the elements clause and the enumerated clause remained unaffected. Id. at 2563. Later, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.

For a prisoner to successfully challenge his ACCA sentence based on Johnson, he must prove "more likely than not" that the sentencing court relied on the residual clause to impose the ACCA enhancement. Beeman v. United States, 871 F.3d 1215, 1220-22 (11th Cir. 2017), cert. denied, 139 S.Ct. 1168 (2019).

Id. at 1221. "If it is just as likely that the 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." Id. at 1222.

Whether the sentencing court relied on the residual clause is a "historical fact," which is determined by reference to the state of affairs that existed at the time of sentencing. See id. at 1224 n.5. Thus, court decisions rendered afterward holding that a particular offense does not qualify under the elements clause or the enumerated offense clause "cast[ ] very little light, if any, on th[is] key question of historical fact." Id. A prisoner can establish that the sentencing court relied on the residual clause in two ways. First, the prisoner can point to "direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in that case." Id. at 1224 n.4. Alternatively, absent direct evidence, there will

Id. A prisoner may also circumstantially prove that the ACCA sentence depended on the residual clause "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." Id. at 1224 n.5 (emphasis added). However, if "`the evidence does not clearly explain what happened ... the party with the burden loses.'" Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).

Additionally, the Eleventh Circuit has clarified that for purposes of Beeman, where a § 2255 movant challenged his ACCA sentence on direct appeal, the historical record includes the record through direct appeal. Weeks v. United States, 930 F.3d 1263, 1275 (11th Cir. 2019). Thus, "it is necessary in such a case to look to the record and binding precedent through the time of direct appeal to determine whether the claimant has shown `that—more likely than not—it was use of the residual clause that led to the ... enhancement of his sentence.'" Id. (quoting Beeman, 871 F.3d at 1222).

III. Timeliness

Before reaching the merits, the Court addresses the United States' argument that the sole claim in Overstreet's § 2255 Motion is untimely. Response at 3-4. The United States asserts that Overstreet's § 2255 Motion is untimely under 28 U.S.C. § 2255(f)(1) because he did not file it until nearly three years after his conviction and sentence became final. Id. at 3. The United States also argues that Overstreet cannot rely on Johnson and § 2255(f)(3) to render the motion timely because his sentence did not depend on the residual clause. Id. at 4. Thus, according to the United States, "[t]he Johnson holding does not apply to this case." Id. at 15. Overstreet did not directly respond to the United States' timeliness argument. See generally Reply. However, Overstreet maintains that his ACCA sentence must have relied on the residual clause because, in light of Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), his prior Texas convictions for two burglaries and two attempted murders no longer qualify as violent felonies under the elements clause or the enumerated offense clause. See id.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year statute of limitations for a federal prisoner to file a motion to vacate, set aside, or correct sentence. 28 U.S.C. § 2255(f). The limitations period runs from the latest of four possible trigger dates.

Id.

Overstreet's § 2255 Motion is not timely under § 2255(f)(1) because he filed it almost three years after his conviction and sentence became final.9 Overstreet does not contend that §§ 2255(f)(2) or 2255(f)(4) are applicable. Thus, only § 2255(f)(3) can render the § 2255 Motion timely. To do so, the § 2255 Motion must depend on a "right [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3).

The Eleventh Circuit's discussion in Beeman about how to apply the statute of limitations is instructive. 871 F.3d at 1219-21. In Beeman, the prisoner filed a § 2255 motion raising three arguments:

Beeman, 871 F.3d at 1218.

The Eleventh Circuit determined that Beeman's § 2255 motion was timely to the extent he raised a Johnson claim, but that it was untimely to the extent he raised a Descamps claim. Id. at 1220. The Eleventh Circuit instructed that

Id. Under § 2255(f)(3), a prisoner may bring a claim based on Johnson within one year of that decision because Johnson announced a newly recognized right that applies retroactively on collateral review. Id. at 1219 (citing Welch, 136 S. Ct. at 1268). However, "the Descamps decision cannot qualify as a triggering date under § 2255(f)(3)" because "Descamps did not set out a newly recognized right." Id. at 1220. "As a result, if [Beeman's] § 2255 motion raised a Johnson claim, that claim was timely, but any other claim the motion raised — including a Descamps claim — was untimely." Id. (alteration added). The court determined that Beeman raised both types of claims in his § 2255 motion. Id. "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." Id. But to the extent Beeman argued that the district court relied on the residual clause to classify his Georgia conviction for aggravated assault as a violent felony, and that Johnson entitled him to be resentenced, "[t]hat sounds like a Johnson claim." Id. Thus the court ruled that Beeman's Descamps claim was time-barred but that his Johnson claim was not. Id.

Like Beeman, Overstreet raises both a Johnson claim and a Descamps claim. In his § 2255 Motion, Overstreet cites Johnson for the proposition that his sentence was unlawfully "enhanced under the [ACCA]'s residual clause." § 2255 Motion at 4. And in his Memorandum, Overstreet cites Johnson to argue that his sentence exceeds the statutory maximum. Memorandum at 1, 4-5. "That sounds like a Johnson claim." Beeman, 871 F.3d at 1220. But Overstreet also argues at length that his prior convictions for burglary and attempted capital murder "no longer" qualify as violent felonies under the elements clause or the enumerated offense clause. Memorandum at 4-5, 9, 11, 12. In doing so, he relies extensively on Descamps and Mathis. Id. at 4-7. "That is obviously a Descamps claim." Beeman, 871 F.3d at 1220.

Consistent with Beeman, the Court determines that Overstreet's § 2255 Motion is timely to the extent he raises a Johnson claim, i.e., that the Court applied the ACCA enhancement based on the now-invalid residual clause. However, Overstreet's § 2255 Motion is time-barred to the extent he argues that his prior convictions do not qualify as violent felonies under the elements clause or the enumerated offense clause based on Descamps and Mathis.

IV. Analysis

Johnson does not entitle Overstreet to relief from his ACCA sentence because he has not met his burden of proof under Beeman and Weeks. That is, Overstreet has not "show[n] that—more likely than not—it was use of the residual clause that led to the sentencing court's enhancement of his sentence." Beeman, 871 F.3d at 1222. Nothing in the PSR, the sentencing record, or the legal landscape at the time of sentencing and through direct appeal suggests that Overstreet's sentence depended on the residual clause. Therefore, Overstreet has not shown that this Court or the Eleventh Circuit Court of Appeals "relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause" to identify a prior conviction as an ACCA predicate. Id. at 1221.

Overstreet's PSR listed five prior convictions as ACCA-qualifying offenses, each obtained in the state of Texas: (1) a 1983 conviction for burglary of a building, (2) a 1986 conviction for burglary of a habitation, (3) a 1986 conviction for attempted capital murder, (4) a 1986 conviction for aggravated sexual assault, and (5) a second 1986 conviction for attempted capital murder. PSR at ¶ 26. However, the PSR did not state whether these convictions qualified as violent felonies under the elements clause, the enumerated offense clause, or the residual clause. Likewise, neither Overstreet's nor the United States' sentencing memoranda discussed which violent felony clause applied to the prior convictions. (See Crim. Doc. 37; Overstreet's Sentencing Memorandum, Crim. Doc. 38; United States' Sentencing Memorandum).

At the sentencing hearing, the Court identified "four qualifying [ACCA] offenses that occurred on occasions different from one another." Sentencing Tr. Vol. I at 34. Those were (1) the burglary of a building in 1983, (2) the burglary of a habitation on May 27, 1986, (3) the attempted capital murder of a peace officer on May 27, 1986, and (4) the aggravated sexual assault and attempted capital murder of a woman on May 28, 1986. Id. at 31-35. In doing so, the Court made no reference to the residual clause, the elements clause, or the enumerated offense clause. The Court had no reason to identify which clause applied to the prior convictions because Overstreet did not dispute that his prior convictions met the ACCA's definition of a violent felony. Id. at 29, 31. Rather, Overstreet's argument was that (1) the government was required to allege in the indictment, and prove to a jury beyond a reasonable doubt, that Overstreet had three ACCA predicate convictions, and (2) a jury must find beyond a reasonable doubt that each of the prior offenses were committed on different occasions. Consequently, the sentencing record gives no indication about what role, if any, the residual clause played at sentencing.

The record on direct appeal similarly offers no clarification. On appeal, Overstreet raised essentially the same arguments as he did at sentencing. Overstreet, 713 F.3d at 634-35 ("Overstreet argues that his ACCA enhancement was unconstitutional because (1) he did not admit the existence of his prior predicate convictions when he pleaded guilty, and (2) the fact that his prior offenses were `committed on occasions different from one another' should have been alleged in the indictment and proven beyond a reasonable doubt.") (footnote omitted). Once again, Overstreet did not contest whether his prior convictions met the statutory definition of a violent felony. As a result, the Eleventh Circuit's opinion is devoid of any indication of whether Overstreet's ACCA enhancement was based on the residual clause as opposed to another ACCA clause.

Importantly, the legal landscape at the time of Overstreet's sentencing and through direct appeal does not suggest that any of his ACCA predicates qualified as a violent felony only under the residual clause. See Weeks, 930 F.3d at 1275; Beeman, 871 F.3d at 1224 n.5. The Court has not located any binding precedent, existent at the time of sentencing and through direct appeal (i.e., between December 2, 2011, when the Court imposed sentence, and October 7, 2013, when the Supreme Court denied certiorari review), holding that burglary of a building or habitation, aggravated sexual assault, or attempted capital murder under Texas law qualified as a violent felony exclusively under the residual clause. Nor has Overstreet pointed the Court to any such authority. Instead, Overstreet argues that his convictions "no longer" qualify as violent felonies under the elements clause or the enumerated offense clause in light of Descamps and Mathis. Memorandum at 4, 9, 11, 12; Reply at 3, 6, 7. But such arguments "cast[ ] very little light, if any, on the key question of historical fact here: whether in 20[11] [Overstreet] was, in fact, sentenced under the residual clause only." Beeman, 871 F.3d at 1224 n.5.

Indeed, given the state of the law in 2011, it is entirely possible this Court would have classified Overstreet's 1983 and 1986 burglary convictions as generic burglaries under the enumerated offense clause, § 924(e)(2)(B)(ii). The Supreme Court has held that for purposes of § 924(e)(2)(B)(ii), "burglary" means "the generic sense in which the term is now used in the criminal codes of most States." Taylor v. United States, 495 U.S. 575, 598 (1990) (citations omitted). "Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id. (citations and footnote omitted). Regardless of any "minor variations in terminology," id. at 599, as long as the state law in question "substantially corresponds" to (or is narrower than) generic burglary, the conviction qualifies under § 924(e)(2)(B), id. at 602.

When Overstreet committed the burglary offenses, Texas defined burglary as follows:

Tex. Penal Code § 30.02(a) (1983, 1986). At the time of sentencing, the Fifth Circuit Court of Appeals treated the Texas burglary statute as divisible, with § 30.02(a)(1) qualifying as generic burglary, United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992), and § 30.02(a)(3) not qualifying as generic burglary because it does not require intent to commit a crime at the moment of entry, United States v. Constante, 544 F.3d 584, 586-87 (5th Cir. 2008).10 See also United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014) ("We hold that the modified categorical approach applies here, meaning that we will consult Shepard documents to determine which of the three alternatives of Texas Penal Code § 30.02(a) forms the basis of Conde's conviction. This test applies because § 30.02(a) is a divisible statute."). And the Fourth Circuit Court of Appeals regarded (and still regards) the entire Texas burglary statute as categorically equivalent to generic burglary because in its view, the generic definition does not require the intent to commit a crime at the moment of entry. United States v. Bonilla, 687 F.3d 188, 193 (4th Cir. 2012); accord United States v. Herrold, ___ F.3d ____, 2019 WL 5288154 (5th Cir. Oct. 18, 2019) (en banc)11; see also Quarles, 139 S. Ct. at 1875 ("For purposes of § 924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure." (emphasis in original)).

Here, the Shepard documents from Overstreet's 1983 and 1986 burglary convictions correspond to § 30.02(a)(1), which both the Fourth and Fifth Circuits deemed equivalent to generic burglary at the time of Overstreet's sentencing. The indictment from the 1983 burglary offense charged Overstreet as follows:

Gov't Sentencing Ex. 5. This charge fits the language of § 30.02(a)(1). A 1986 order revoking Overstreet's probation reflects that he was convicted of the burglary offense described above. Gov't Sentencing Ex. 7. As for Overstreet's 1986 burglary conviction, the indictment alleged that Overstreet

Gov't Sentencing Ex. 6. This charge also fits the language of § 30.02(a)(1). The judgment reflects that Overstreet was convicted of the offense described above. Gov't Sentencing Ex. 8. Accordingly, the Shepard documents reveal that Overstreet had two separate convictions under § 30.02(a)(1), which, based on the state of the law at the time of sentencing and through direct appeal, would have qualified as generic burglaries. Silva, 957 F.2d at 162; Conde-Castaneda, 753 F.3d at 176.

It is further likely, given the state of the law in 2011, that the Court would have classified Overstreet's conviction for aggravated sexual assault as a violent felony under the elements clause. To reiterate, a prior conviction falls under the elements clause if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). "[T]he phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Curtis Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original). The term "use" under the elements clause "requires active employment" because the "use ... of physical force against the person or property of another [ ] most naturally suggests a higher degree of intent than negligent or merely accidental conduct." Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see also United States v. Palomino Garcia, 606 F.3d 1317, 1334-36 (11th Cir. 2010) (concluding that the elements clause in U.S.S.G. § 2L1.2 requires the use of force to be more than reckless or negligent).

When Overstreet committed the aggravated sexual assault, Texas law defined the crime as follows:

Carter v. State, 713 S.W.2d 442, 445 (Tex. Ct. App. 1986) (quoting Tex. Penal Code § 22.021 (1986)) (emphasis omitted).13 The indictment alleged that on May 28, 1986, Overstreet

Gov't Sentencing Ex. 2 (emphasis added). The first paragraph's emphasized language tracks § 22.021(a)(1), while the second paragraph tracks § 22.021(a)(2). The judgment states that Overstreet was convicted of aggravated sexual assault "as charged in paragraph one of the indictment." Gov't Sentencing Ex. 3. That is, Overstreet was convicted of using physical force and violence to sexually assault the victim and "caus[ing] serious bodily injury and attempt[ing] to cause the death of the Complainant in the course of the same criminal episode." Gov't Sentencing Ex. 2. Notably, Overstreet does not dispute that this conviction qualifies as a violent felony under the elements clause. Indeed, it seems plain that the crime has as an element the use, attempted use, or threatened use of violent physical force against the person of another. 18 U.S.C. § 924(e)(2)(B)(i); Curtis Johnson, 559 U.S. at 140. Accordingly, it is plausible — if not likely — that in 2011 the Court would have classified the aggravated sexual assault conviction as a violent felony under the elements clause.14 Because the aggravated sexual assault and two burglary offenses were each committed on different occasions, these three convictions alone — even without considering Overstreet's convictions for attempted murder — would have been enough to sentence Overstreet as an armed career criminal without resorting to the residual clause.

Finally, it is plausible, indeed likely, that in 2011 the Court would have classified Overstreet's attempted capital murder convictions as violent felonies under the elements clause as well. The murder statute in effect in 1986, which Overstreet agrees is the operative statute, Memorandum at 10, provided in relevant part:

Tex. Penal Code § 19.02 (1986). See 1973 Tex. Gen. Laws 1123, eff. Jan. 1, 1974.15 Two recent decisions by district courts in Texas are of value in determining how this Court would have evaluated Overstreet's 1986 conviction under § 19.02. Green v. United States, No. 1:16cv229, 2019 WL 4316092, at *2-3 (E.D. Tex. Aug. 15, 2019), report and recommendation adopted, 2019 WL 4305651 (E.D. Tex. Sep. 10, 2019); Richardson v. United States, No. 3:16-cv-1779-K, 2019 WL 3338263, at *3-6 (N.D. Tex. Jul. 25, 2019). Notably, § 19.02 categorically has as an element the use, attempted use, or threatened use of violent physical force against the person of another. Indeed, in Richardson, the court reasoned that "Texas murder, regardless of the particular means employed, categorically requires an act `that causes the death of an individual,'" and "`[i]t is hard to imagine conduct that can cause another to die that does not involve physical force against the body of the person killed.'" Id. at *4 (quoting United States v. Checora, 155 F.Supp.3d 1192, 1197 (D. Utah 2015)); see also In re Irby, 858 F.3d 231, 237 (4th Cir. 2017) ("Common sense dictates that murder is categorically a crime of violence under the force clause [of 18 U.S.C. 924(c)]."). Similarly, in Green the court reasoned that "[e]ach subsection of the Texas murder statute requires the commission of an act that results in the death of an individual. Each subsection therefore requires the use of force capable of causing injury or pain against another individual." Green, 2019 WL 4316092, at *2 (citations omitted). This Court likely would have reasoned as Richardson and Green did, and found that Overstreet's attempted murder under § 19.02 categorically has as an element the use, attempted use, or threatened use of violent physical force against another person.16

Accordingly, neither the record nor the state of the law between sentencing and direct appeal provides any evidence that Overstreet's ACCA sentence relied on the residual clause. To borrow the United States' words, "the residual clause was not the only — or even the most — plausible basis for this Court's decision to count" any of Overstreet's ACCA predicate convictions as a violent felony. Response to Supp. Auth. at 10. "If it is just as likely that the 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." Beeman, 871 F.3d at 1222. Such is the case here. Because Overstreet has not "show[n] that the [residual] clause actually adversely affected the sentence he received," id at 1221 (citing In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016)), he is not entitled to relief based on Johnson.

V. Certificate of Appealability

The undersigned opines that a certificate of appealability is not warranted. This Court should issue a certificate of appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this substantial showing, Overstreet "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner's claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the claims debatable or wrong. See Slack, 529 U.S. at 484. However, when the district court has rejected a claim on procedural grounds, the petitioner must show 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." Id. Upon consideration of the record as a whole, this Court will deny a certificate of appealability.

As such, and in accordance with the Rules Governing Section 2255 Cases in the United States District Courts, it is hereby ORDERED:

DONE AND ORDERED.