Whether a defendant's right to Due Process in his initial § 2255 proceeding is violated by the Eleventh Circuit's rule assigning precedential effect to an order denying a pro se petitioner's application for authorization to file a second or successive § 2255 motion

QUESTION PRESENTED Following Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016), the courts of appeals were flooded with applications for leave to file second or successive habeas corpus petitions or motions to vacate, on the basis that a new rule of constitutional law was announced in Johnson and made retroactive in Welch. Many of these were submitted by pro se federal prisoners on the required and restrictive form. Often, no briefing was submitted by the government in opposition. No oral arguments were held. Panels often decided applications based on fewer than 100 words by a pro se inmate. In order to comply with statutory time limits, panel members at times reviewed 40 to 50 such applications daily. Exceeding their gatekeeping role under 28 U.S.C. § 2255(h)—which requires only that the court of appeals certify whether an application has made a prima facie showing that a second or successive habeas petition or motion would raise a claim that relied upon Johnson—Eleventh Circuit panels issued published orders holding, for the first time, that a particular offense qualifies as a “crime of violence” or a “violent felony.”! By statute, applicants for permission to file a successive § 2255 1 In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (holding that federal armed bank robbery is a “crime of violence” under § 924 (c)(3)(A)); In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016) (holding that Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A)); In re Colon, 826 f.3d 1301, 1305 (11th Cir. 2016) (holding that aiding and abetting Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A)); In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016) (holding that federal carjacking is a “crime of violence” under § 924(c)(3)(A); In re Watt, 829 F.3d 1287, 1289-90 (holding that aiding and abetting assault of federal postal employee is a “crime of violence” under § 92.4(0)(3)(A)); In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (holding that federal unarmed bank robbery is a “crime of violence” under § 924(c)(3)(A); In re Hunt, 835 F.3d 1277, 1277 (11th Cir. 2016) 1 motion cannot seek review of denial or their application, by appeal or by writ of certiorari to the Supreme Court. See 28 U.S.C. § 2244(b)(3)(E). Nevertheless, the Eleventh Circuit subsequently held that these published panel orders—made in a compressed time period, without the benefit of adversarial participation, and without a complete record—are binding and preclusive under its prior panel precedent rule, even on direct appeal or in initial § 2255 proceedings. Two of these orders were used to deny Mr. Eric Mack full merits review of his initial motion pursuant to § 2255. App. A; App. C. The question presented is: Whether a defendant’s right to Due Process in his initial § 2255 proceeding is violated by the Eleventh Circuit’s rule assigning precedential effect to an order denying a pro se petitioner’s application for authorization to file a second or successive § 2255 motion. (holding that federal armed bank robbery is a “crime of violence” under § 924(c)(3)(A)); In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016) (holding that Florida robbery is a “violent felony” under § 924(e)); In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (holding that Florida armed robber is a “violent felony” under § 924(e)); In re Hires, 825 F.3d 1297, 1301-02 (11th Cir. 2016) (holding that Florida robbery and aggravated assault are “violent felonies” and the sale of cocaine is a “serious drug offense” under § 92.4(e): In re Rogers, 825 F.3d 1335, 1840-41 (11th Cir. 2016) (holding that Florida aggravated assault and aggravated battery are “violent felonies” under § 924(e)); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (holding that Florida armed robbery is a “violent felony” under § 924(e)); In re Griffin, 823 F.3d 1350, 1354-56 (11th Cir. 2016) (holding that the Sentencing “Guidelines—whether mandatory or advisory