Mickey Lee Moody v. Warden, FCC Coleman - Low

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 15-11231
Non-Argument Calendar
D.C. Docket No. 5:14-cv-00396-WTH-PRL
MICKEY LEE MOODY,
Petitioner-Appellant,
versus
WARDEN,FCC COLEMAN—LOW,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
Before TJOFLAT,JILL PRYOR and FAY,Circuit Judges.
PERCURIAM:
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Mickey Lee Moody's appeal ofthe dismissal of his 28 U.S.C. § 2241
petition for habeas corpus under the savings clause of28 U.S.C. § 2255(e)is
pending before this court. As we explain hereinafter, the applicable law has
changed, and Moody has been released from custody, which results in the
dismissal ofthis appeal as moot.
Moody was serving a statutory-mandatory-minimum, fifteen-year-
imprisonment sentence for pleading guilty under a plea agreement to one count of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
had been sentenced under the Armed Career Criminal Act("ACCA"), 18 U.S.C. §
924(e), based on three ACCA predicate crimes, including a 1982 Alabama
conviction for third-degree burglary. On direct appeal. Moody argued the district
judge had erred in concluding his Alabama third-degree-burglary conviction
qualified as an ACCA predicate crime. This court affirmed Moody's sentence,
because Alabama third-degree burglary included the elements of generic burglary,
making it a qualifying crime under the ACCA. United States v. Moody^ 216 F.
App'x 952,952(11th Cir. 2007).
In 2008, Moody filed a pro se motion to vacate his sentence under 28 U.S.C.
§ 2255 and argued his counsel was ineffective for allowing his third-degree-
burglary conviction to be used as an ACCA predicate crime. The districtjudge
denied Moody's § 2255 motion and his request for a certificate of appealability;
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this court also denied Moody a certificate of appealability. In 2014, Moody filed a
§ 2241 pro se habeas corpus petition under the savings clause of§ 2255(e)and
argued his Alabama third-degree-burglary conviction did not qualify as a violent
felony to enhance his sentence under the ACCA. The districtjudge dismissed
Moody's petition for lack ofsubject matter jurisdiction. His appeal from that
dismissal is pending in this court.
In the course of Moody's appeals, the controlling Supreme Court and circuit
law has changed. The Supreme Court held a conviction for burglary in violation of
California Penal Code § 459 is broader than "generic burglary" and does not
qualify as "burglary" under the enumerated-offenses clause ofthe ACCA "violent
felony" definition, 18 U.S.C. § 924(e)(2)(B)(ii). Descamps v. United States, 133 S.
Ct. 2276, 2292(2013). After Descamps, our court held a conviction for Alabama
third-degree burglary "cannot qualify as generic burglary under the ACCA."
United States v. Howard,742 F.3d 1334, 1349(11th Cir. 2014). Because the
Supreme Court had "declared the residual clause ofthe ACCA to be
unconstitutionally vague," we then held there is no "basis for characterizing the
Alabama third degree burglary statute as a violent felony under the ACCA."
United States v. Nelson, 813 F.3d 981,982(11th Cir. 2015)(citing Johnson v.
United States, 135 S. Ct. 2551, 2557(2015)).
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While the appeal ofthe dismissal of his § 2241 petition was pending, Moody
filed two counseled requests for authorization("RFA")to file a second or
successive § 2255 motion to vacate his sentence under Welch v. United States, 136
S. Ct. 1257(2016), and Johnson. He argued he is entitled to be resentenced
without the ACCA enhancement, because his Alabama third-degree-burglary
conviction does not qualify as a "violent felony," a "crime punishable by
imprisonment for a term exceeding one year" under the ACCA, 18 U.S.C. §
924(e)(2)(B). "Even though the legal issue raised in a § 2255 motion was
determined against the applicant on the merits on direct appeal, the applicant may
nevertheless be entitled to collateral review on the legal issue upon showing an
intervening change in the law.^^ Rozier v. United States, 701 F.3d 681,684(11th
Cir. 2012)(quoting Z)£j[vw v. United States, 417 U.S. 333, 342,94 S. Ct. 2298,2303
(1974))(alterations and internal quotation marks omitted). Our court consolidated
Moody's RAFs and granted his application to file a second or successive motion
under 28 U.S.C. § 2255(h), because he had made a prima facie showing he would
benefit from Johnson. In re Mickey Lee Moody, Nos. 16-12459,16-12752(11th
Cir. June 11, 2016).
Thereafter, the districtjudge determined Moody is not an Armed Career
Criminal eligible for the ACCA sentencing enhancement, granted his § 2255
motion, and dismissed his case with prejudice. On August 4, 2016,the judge
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entered an amended judgment and sentenced Moody to time served and three years
of supervised release. Moody was released from custody on August 12,2016, and
by letter ofthat date notified our Clerk of Court of his new address. Consequently,
Moody's pending appeal from his § 2241 petition brought under the savings clause
of§ 2255(e)is moot and hereby is DISMISSED.
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