Are federal courts precluded from granting a federal prisoner's 28 U.S.C. § 2255 motion to vacate an illegal conviction in light of Davis where the record is unclear about whether the conviction was based on the now-invalid residual clause?

In United State s v. Davi s, 588 U.S. 445 (2019 ), this Court declared unconstitutionally vague the “residual clause ” definition of the term “crime of violence” in 18 U.S.C. § 924(c ) but left undisturbed the remaining “ elements clause” definition . In this case, the Eleventh Circuit expressly recognize d that “neither of [Mr. Fernandez’s two predicate ] crimes ”—i.e. , conspiracy to commit Hobbs Act robbery or attempted Hobbs Act robbery —“qualifies as a ‘crime of violence ’ under the elements clause. ” Fernandez v. U nited States, 114 F.4th 1170, 1175 (11th Cir. 2024) . And Judge Rosenbaum, who authored the court’s opinion , openly acknowledged in a separate concurrence that Mr. Fernandez “ stands convicted of and will spend twenty five years in prison for something that Congress did not make a crime .” Id. at 1183. Nonetheless, the court affirmed the denial of his motion to vacate that illegal conviction under 28 U.S.C. § 2255. It reasoned that Petitioner was required to prove that the district court had relied on the residual clause, as opposed to the elements clause , and he could not meet that burden of proof because the record was silent. As Judge Rosenbaum’s concurrence recognized, three circuits do not require § 2255 movants to satisfy that heightened burden of proof. Id. at 1186 n.3 (citing cases). The question presented is: Are federal courts precluded from granting a federal prisoner’s 28 U.S.C. § 2255 motion to vacate an illegal conviction in light of Davis where the record is unclear about whether the conviction was based on the now -invalid residual clause ?