Thomas Hoffner, Jr. v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-2883

_____________

In Re: THOMAS F. HOFFNER, JR.,

Petitioner

______________

On Application for Leave to File a

Successive Habeas Petition

pursuant to 28 U.S.C. § 2255(h)(2)

related to E.D. Pa. No. 2-00-cr-00456

before the Honorable Harvey Bartle, III, District Judge

_____________

Argued: July 18, 2017

______________

Before: McKEE, AMBRO and RESTREPO, Circuit Judges.

(Filed: September 7, 2017)

______________

Lisa B. Freeland [ARGUED]

Office of Federal Public Defender

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Petitioner

Louis D. Lappen

Robert A. Zauzmer [ARGUED]

Emily McKillip

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Respondent

______________

OPINION OF THE COURT

______________

RESTREPO, Circuit Judge.

In Johnson v. United States, 135 S. Ct. 2551 (2015),

the Supreme Court held that the residual clause of the Armed

Career Criminal Act (ACCA) is unconstitutionally vague. An

identical residual clause existed until recently in the Federal

Sentencing Guidelines’ career offender guideline, U.S.S.G.

§ 4B1.2(a)(2). Petitioner Thomas Hoffner was sentenced as a

career offender based on this residual clause in 2002. He

seeks our authorization to challenge his sentence via a

successive habeas corpus petition, 28 U.S.C. § 2255(h)(2).

The ultimate question is whether Hoffner has a

meritorious vagueness claim under Johnson. But that is not

the question before us now. The only issue we must decide is

whether Hoffner has made a “prima facie showing,”

2

28 U.S.C. § 2244(b)(3)(C), of the pre-filing requirements for

a successive habeas corpus petition. To answer this

seemingly simple question, we must cover some rocky

terrain. We consider Johnson and its progeny, as well as the

pre-filing requirements for a second or successive habeas

petition. We conclude that Hoffner has made a prima facie

showing, and so we will authorize his successive habeas

petition. 1

I. Factual and Procedural Background

In 2002, Hoffner was convicted of conspiracy to

distribute methamphetamine, 21 U.S.C. § 846, distribution of

methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use

of a communication facility, 21 U.S.C. § 843(b). At

sentencing, the District Court applied the career offender

guideline, U.S.S.G. § 4B1.1, based upon two prior

convictions Hoffner incurred in Pennsylvania state court in

the 1980s. The first was for simple assault and the second

was for burglary, robbery and conspiracy. He was sentenced

to twenty years’ imprisonment and five years’ supervised

release. 2

1

For ease of reference, we use “habeas corpus

petition” or “habeas petition” to refer to a petition filed under

28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375,

377 (2003) (referring interchangeably to “habeas motion” and

“§ 2255 motion”).

2

Hoffner was sentenced on May 29, 2002 under the

2001 edition of the Sentencing Guidelines. See 18 U.S.C.

§ 3553(a)(4)(A); U.S.S.G. § 1B1.11. Without the career

offender guideline, Hoffner’s offense level would have been

3

Hoffner filed a direct appeal and a habeas corpus

petition, which we rejected. United States v. Hoffner, 96 F.

App’x 85 (3d Cir. 2004); United States v. Hoffner, No. 00-cr-

00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005), appeal

denied No. 05-5478 (3d Cir. July 18, 2006). In 2012, he filed

an unauthorized second habeas corpus petition. In 2015, he

filed the pro se motion before us seeking to file a successive

habeas corpus petition under Johnson. We appointed

counsel, requested briefing, and held oral argument.

II. Johnson and Its Progeny

A. Johnson

In Johnson, the Supreme Court considered a due

process challenge to the residual clause of the ACCA,

18 U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a

defendant convicted of being a felon in possession of a

firearm under 18 U.S.C. § 922(g). Ordinarily, “the law

punishes violation of this ban by up to 10 years’

imprisonment.” Johnson, 135 S. Ct. at 2555 (citing 18 U.S.C.

§ 924(a)(2)). However, if a defendant is an “armed career

criminal,” the ACCA imposes a mandatory minimum

34 and his criminal history category IV, for a Guideline range

of 210 to 262 months. Applying the career offender guideline

increased his Guideline range to 360 months to life.

Continuing the Guideline calculations, the District Court

found that Hoffner’s criminal history category substantially

overstated the seriousness of his criminal history. U.S.S.G.

§ 4A1.3. The District Court departed downward, producing a

final, mandatory Guideline range of 210 to 262 months.

4

sentence of fifteen years and a statutory maximum sentence

of life. Id. (citing 18 U.S.C. § 924(e)(1)). 3

A defendant is an “armed career criminal” if, in

relevant part, he “has three or more earlier convictions for a

‘serious drug offense’ or a ‘violent felony.’” Id. (citing

18 U.S.C. § 924(e)(1)). Pre-Johnson, the definition of

“violent felony” had three clauses—one enumerating

offenses, one enumerating elements, and the residual clause.

18 U.S.C. § 924(e)(2)(B). The residual clause defined a

crime as a “violent felony” if it “otherwise involves conduct

that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii); see also Johnson, 135

S. Ct. at 2557.

In Johnson, the Supreme Court struck the ACCA

residual clause as unconstitutionally vague. Johnson, 135

S. Ct. at 2563. The Court explained that the Fifth

Amendment’s vagueness doctrine bars the Government from

“taking away someone’s life, liberty, or property under a

criminal law so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement.” Id. at 2556. These principles

apply to laws “defining elements of crimes” or “fixing

sentences.” Id. at 2557. The ACCA was a law “fixing

sentences.” Beckles, 137 S. Ct. at 892. Its residual clause

denied defendants “fair notice” and “invite[d] arbitrary

enforcement by judges.” Johnson, 135 S. Ct. at 2557. Thus,

Johnson held that “[i]ncreasing a defendant’s sentence under

3

A sentencing court can depart from the mandatory

minimum sentence only in limited circumstances.

Cf. 18 U.S.C. § 3553(e).

5

the clause denies due process of law.” Id.

B. Welch

The Supreme Court quickly resolved the issue of

Johnson’s retroactivity in Welch v. United States, 136 S. Ct.

1257 (2016). Welch held that Johnson is retroactive to cases

on collateral review. Id. at 1264.

In Welch, the Supreme Court applied the retroactivity

test set forth in Teague v. Lane, 489 U.S. 288 (1989). Teague

provides that “new constitutional rules of criminal procedure”

are generally not retroactive to cases on collateral review.

Welch, 136 S. Ct. at 1264 (quoting Teague, 489 U.S. at 310).

However, “two categories of decisions . . . fall outside this

general” retroactivity bar: “new substantive rules” and

“watershed rules of criminal procedure.” Id. (emphasis and

citations omitted). A procedural rule “regulate[s] only the

manner of determining the defendant’s culpability.” Id. at

1265 (emphasis and citation omitted). A substantive rule

“alters the range of conduct or the class of persons that the

law punishes.” Id. at 1264-65 (citation omitted). 4

Welch held that Johnson is a new “substantive” rule

because it alters “the substantive reach of the [ACCA]” such

that a defendant can no longer be sentenced as an armed

career criminal “based on” the residual clause. Id. at 1265;

see also Montgomery v. Louisiana, 136 S. Ct. 718, 734

(2016). Conversely, Johnson is not “procedural” because it

“had nothing to do with the range of permissible methods a

4

We need not address the category “watershed rules

of criminal procedure.”

6

court might use to determine whether a defendant should be

sentenced under the [ACCA].” Welch, 136 S. Ct. at 1265.

C. Johnson Challenges to the Career Offender

Guideline

From Johnson grew challenges to another residual

clause, the one contained in the career offender guideline.

The career offender guideline is a severe sentencing

enhancement for certain recidivist offenders. It “specif[ies] a

sentence to a term of imprisonment at or near the maximum

term.” 28 U.S.C. § 994(h).

The career offender guideline applies to a defendant

where, inter alia, “the instant offense of conviction is a felony

that is either a crime of violence or a controlled substance

offense” and “the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a). Until recently, the

career offender guideline defined a “crime of violence” as

any offense under federal or state

law, punishable by imprisonment

for a term exceeding one year

that—

(1) has as an element the use,

attempted use, or threatened use

of physical force against the

person of another, or

(2) is burglary of a dwelling,

arson, or extortion, involves use

7

of explosives, or otherwise

involves conduct that presents a

serious potential risk of physical

injury to another.

Beckles v. United States, 137 S. Ct. 886, 890-91 (2017)

(emphasis in original) (quoting U.S.S.G. § 4B1.2(a)). 5

In this definition, the final clause is the residual clause.

It is identical to the ACCA residual clause struck in Johnson.

Compare 18 U.S.C. § 924(e)(2)(B)(ii) (“or otherwise involves

conduct that presents a serious potential risk of physical

injury to another”), with U.S.S.G. § 4B1.2(a)(2) (“or

otherwise involves conduct that presents a serious potential

risk of physical injury to another”). For this reason, the

residual clause was struck from the career offender guideline

prospectively, effective August 1, 2016. U.S.S.G. Supp. App.

C, Amend. 798.

1. Booker

Before its elimination, the residual clause of the career

offender guideline had been effective since November 1,

5

Beckles quoted the 2006 edition of the Sentencing

Guidelines. Beckles, 137 S. Ct. at 890. This definition is the

same as the 2001 edition, under which Hoffner was

sentenced. See id. at 890 n.1 (citing 18 U.S.C.

§ 3553(a)(4)(A)). It is also the same as the 2000 edition,

which was used to create Hoffner’s Presentence Investigation

Report.

8

1989. U.S.S.G. Supp. App. C, Amend. 268. 6 Significantly,

its use spanned two eras in sentencing under the Federal

Sentencing Guidelines—the pre- and post-United States v.

Booker, 543 U.S. 220 (2005), eras. We pause briefly to

review this distinction, as it is necessary to our analysis.

In the earlier, pre-Booker era, the Sentencing

Guidelines had “the force and effect of laws” and were

“mandatory and binding on all judges.” Id. at 233-34. A

sentencing court was required to “impose a sentence of the

kind, and within the range,” set by the Guidelines. Id. at 234

(quoting 18 U.S.C. § 3553(b)). Although the sentencing court

could depart from the range, departures were based on “only

the sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission.” 18 U.S.C.

§ 3553(b). “In most cases, as a matter of law, the

Commission . . . adequately t[ook] all relevant factors into

account, and no departure [was] legally permissible.”

Booker, 543 U.S. at 234.

In Booker, the Supreme Court held that the Sentencing

Guidelines violated the Sixth Amendment. Id. at 226-27. In

a separate, remedial opinion, the Court rendered the

Guidelines “advisory.” Id. at 245. In the current, post-

Booker era, a sentencing court must “consider Guidelines

ranges” but may “tailor the sentence in light of other statutory

concerns as well.” Id. at 245 (citing 18 U.S.C. § 3553(a)). In

addition to the Guidelines, a sentencing court considers the

parties’ arguments and the Section 3553(a) factors; the

6

Previously, the career offender guideline defined a

“crime of violence” under 18 U.S.C. § 16. See U.S.S.G.

§ 4B1.2(1) (U.S. Sentencing Comm’n 1988).

9

appropriate sentence may vary from the range. United States

v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

2. Beckles

In Beckles, the Supreme Court rejected a Johnson

challenge to the career offender guideline’s residual clause, as

applied under the advisory, post-Booker Guidelines. Beckles,

137 S. Ct. at 890. Beckles held that that “the advisory

Guidelines are not subject to vagueness challenges.” Id.

The issue in Beckles was whether the advisory

Guidelines “fix the permissible sentences for criminal

offenses” such that they can be challenged as vague. Id. at

892 (emphasis in original). Beckles held that they do not.

Rather, the advisory Guidelines “merely guide the exercise of

a court’s discretion.” Id. The Court further explained that the

two principles governing the vagueness doctrine—notice and

arbitrary enforcement—do not apply to the advisory

Guidelines. Id. at 894. As to notice, the “‘due process

concerns that . . . require notice in a world of mandatory

Guidelines no longer’ apply” when the Guidelines are

advisory. Id. (ellipses in original) (quoting Irizarry v. United

States, 553 U.S. 708, 714 (2008)). As to arbitrary

enforcement, the advisory Guidelines are not “enforced” at

all, and so cannot be enforced arbitrarily. Id. at 895.

Beckles limited its holding to the advisory Guidelines.

Id. at 890. It did not address the pre-Booker era, when the

Sentencing Guidelines were “mandatory and binding on all

judges,” who were required to sentence within the range.

Booker, 543 U.S. at 233. In a concurring opinion in Beckles,

Justice Sotomayor noted that the majority left “open the

10

question whether defendants sentenced to terms of

imprisonment before [the Supreme Court’s] decision in

United States v. Booker—that is, during the period in which

the Guidelines did ‘fix the permissible range of sentences,’—

may mount vagueness attacks on their sentences.” Id. at 903

n.4 (Sotomayor, J., concurring) (citations omitted). 7

III. Second or Successive Habeas Corpus Petitions

Hoffner was sentenced based upon the career offender

guideline’s residual clause during the pre-Booker, mandatory

Guidelines era. He seeks our authorization to file a

successive habeas corpus petition challenging his sentence in

light of Johnson. We turn then to the requirements for a

second or successive habeas petition, set forth in the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA).

AEDPA created a statutory “gatekeeping mechanism”

for second or successive habeas petitions. Felker v. Turpin,

518 U.S. 651, 657 (1996) (quotation marks omitted). For a

federal prisoner, like Hoffner, a “second or successive motion

must be certified as provided in section 2244 by a panel of the

appropriate court of appeals.” 28 U.S.C. § 2255(h); see also

In re Turner, 267 F.3d 225, 227 (3d Cir. 2001). Section

7

Beckles abrogated in part United States v.

Calabretta, 831 F.3d 128 (3d Cir. 2016), a direct appeal in

which we held that the career offender guideline’s residual

clause is unconstitutionally vague. Id. at 137 & n.10. In this

opinion, we need not parse what portions of Calabretta

survive Beckles because, as explained below, we are not

evaluating Hoffner’s claim on the merits.

11

2244(b)(3) is the gatekeeping provision. Felker, 518 U.S. at

657. 8 It requires a petitioner to “move in the appropriate

court of appeals for an order authorizing the district court to

consider” a second or successive habeas petition. 28 U.S.C.

§ 2244(b)(3)(A). The appellate court “may authorize the

filing of a second or successive application only if it

determines that the application makes a prima facie showing”

of the pre-filing requirements. 28 U.S.C. § 2244(b)(3)(C).

A. Pre-Filing Requirements

The pre-filing requirements for a second or successive

habeas petition for a federal prisoner are set forth at 28 U.S.C.

§ 2255(h). A Section 2255(h) motion may be based upon

“newly discovered evidence” or a qualifying “new rule of

constitutional law.” 28 U.S.C. § 2255(h). For the latter, the

pre-filing requirements consist of “three prerequisites.” Tyler

v. Cain, 533 U.S. 656, 662 (2001). “First, the rule on which

the claim relies must be a ‘new rule’ of constitutional law;

second, the rule must have been ‘made retroactive to cases on

collateral review by the Supreme Court’; and third, the claim

must have been ‘previously unavailable.’” Id. 9

8

Section 2244(b)(3) applies directly to a state

prisoner, without the cross-reference from Section 2255(h).

Felker, 518 U.S. at 657.

9

Tyler quoted 28 U.S.C. § 2254(b)(2)(A) because it

involved a state prisoner. These requirements are “identical”

to the parallel requirements of 28 U.S.C. § 2255(h)(2). In re

Olopade, 403 F.3d 159, 162 n.3 (3d Cir. 2005). “Due to this

identity of language, we have applied the Tyler holding to

federal prisoners seeking to file second or successive habeas

12

Although few in number, the pre-filing requirements

of Section 2255(h)(2) are difficult to satisfy. The Supreme

Court itself must issue the retroactivity decision, either

expressly or through a series of decisions. Tyler, 533 U.S. at

663; see also In re Olopade, 403 F.3d at 162; In re Turner,

267 F.3d at 229. Moreover, “because of the interplay

between” the pre-filing requirements and the statute of

limitations, 28 U.S.C. § 2255(f)(3), “an applicant who files a

second or successive motion seeking to take advantage of a

new rule of constitutional law will be time barred except in

the rare case in which this Court announces a new rule of

constitutional law and makes it retroactive within one year.”

Dodd v. United States, 545 U.S. 353, 359 (2005). 10

B. Prima Facie Showing

In our gatekeeping role, we assess whether the

applications.” Id. This is so although there is a slight

difference between the two sections. Section 2244(b)(2)(A)

asks whether a claim “relies on” a qualifying new rule.

28 U.S.C. § 2244(b)(2)(A). Section 2255(h) asks whether the

motion “contain[s]” a qualifying new rule. 28 U.S.C.

§ 2255(h). In Olopade, we did not deem this to be a “relevant

portion” of the text. Olopade, 403 F.3d at 162 n.3; see also

In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per

curiam) (equating “contain” with “rel[y] on”).

10

Johnson is such a “rare case.” Dodd, 545 U.S. at

359. The Supreme Court decided Johnson on June 26, 2015.

On April 18, 2016, the Court held in Welch that Johnson is

retroactive.

13

petitioner has satisfied the pre-filing requirements of Section

2255(h) at only a “prima facie” level. 28 U.S.C.

§ 2244(b)(3)(C). Although AEDPA does not define “prima

facie,” the context of Section 2244(b) confirms that we hold

the petitioner to a light burden. The same subsection directs

us to make our prima facie determination “not later than 30

days after the filing of the motion.” 28 U.S.C.

11

§ 2244(b)(3)(D). It provides that the “grant or denial of an

authorization . . . to file a second or successive application

shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.” 28 U.S.C.

§ 2244(b)(3)(E). It also provides that after our authorization,

a district court shall consider anew whether the petitioner has

“show[n] that the claim satisfies the requirements of this

section.” 28 U.S.C. § 2244(b)(4). This context demonstrates

that we “do not have to engage in . . . difficult legal analysis”

in our gatekeeping role. Tyler, 533 U.S. at 664.

Consistent with the text and context, we have defined a

“prima facie showing” as a “sufficient showing” that the

petitioner has satisfied the pre-filing requirements “to warrant

a fuller exploration by the district court.” Goldblum v. Klem,

510 F.3d 204, 219 & n.9 (3d Cir. 2007) (quoting Bennett v.

United States, 119 F.3d 468, 469 (7th Cir. 1997)). Put

differently, we authorize a second or successive habeas

petition where there is some “reasonabl[e] likel[ihood]” that

the motion satisfies the pre-filing requirements of Section

2255(h)(2). Id. at 219 (quoting Bennett, 119 F.3d at 469); see

also 2-28 Hertz & James S. Liebman, Federal Habeas

11

The thirty day time limit is “advisory or hortatory

rather than mandatory.” In re Siggers, 132 F.3d 333, 335 (6th

Cir. 1997).

14

Corpus Practice and Procedure § 28.3(d) & n.122 (2015).

We do not consider the merits of the claim. In re Pendleton,

732 F.3d 280, 282 n.1 (3d Cir. 2013) (per curiam); Goldblum,

510 F.3d at 219 n.9.

IV. Analysis

The parties agree, as they must under Welch, that

Johnson is “[1] a new rule of constitutional law, [2] made

retroactive to cases on collateral review by the Supreme

Court, [3] that was previously unavailable.” 28 U.S.C.

§ 2255(h)(2). These are generally the “three prerequisites”

for a motion under Section 2255(h). Tyler, 533 U.S. at 662.

The Government nevertheless opposes Hoffner’s motion for

authorization to file a successive habeas petition. It argues

that Hoffner has not made a prima facie showing of one

portion of the first prerequisite, that Johnson is “the rule on

which the claim relies.” Id. (emphasis added).

A. Relies

This Court has not previously focused on what is

required for a claim to “rel[y]” on a qualifying new rule for

the purposes of Section 2255(h)(2). Id. Our precedent

dictates that the answer cannot be whether the claim has

merit, because we do not address the merits at all in our

gatekeeping function. In re Pendleton, 732 F.3d at 282 n.1;

Goldblum, 510 F.3d at 219 n.9. We now hold that whether a

claim “relies” on a qualifying new rule must be construed

permissively and flexibly on a case-by-case basis.

Our interpretation is based first on the text of Section

2255(h)(2), which supports a permissive and flexible

15

approach to whether a petitioner “relies” on a qualifying new

rule. See Maslenjak v. United States, 137 S. Ct. 1918, 1924

(2017) (“We begin, as usual, with the statutory text.”). The

Supreme Court has enumerated the pre-filing requirements as

“three prerequisites.” Tyler, 533 U.S. at 662. Of these, the

first is that “the rule on which the claim relies must be a ‘new

rule’ of constitutional law.” Id. While this prerequisite does

refer to a rule on which the claim “relies,” Tyler does not give

any freestanding weight to this term. Id. Similarly, when we

described the “relevant portion” of the text, we did not

include reliance. Olopade, 403 F.3d at 162 n.3. Even the

Government concedes that Section 2255(h)(2) has “no

express requirement that the ‘new rule’ must actually pertain

to the petitioner’s claim.” Br. for Respondent 22 n.6.

The context of Section 2244(b) also supports

interpreting “relies” permissibly and flexibly. See King v.

Burwell, 135 S. Ct. 2480, 2489 (2015) (emphasizing that we

read statutory text in context). As explained above, Congress

has mandated that the “grant or denial of an authorization . . .

shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.” 28 U.S.C.

§ 2244(b)(3)(E); see also Felker, 518 U.S. at 654 (upholding

this subsection). This creates an asymmetry in the impact of

our gatekeeping decision on a particular case. See Evans-

Garcia v. United States, 744 F.3d 235, 239 (1st Cir. 2014);

Ochoa v. Sirmons, 485 F.3d 538, 542 n.5 (10th Cir. 2007)

(per curiam). On one hand, if we erroneously deny

authorization, the petitioner “will have no opportunity to

appeal or seek rehearing.” Evans-Garcia, 744 F.3d at 239.

On the other hand, “if we err in granting certification, ample

opportunity for correcting that error will remain.” Id. The

district court will have the opportunity to determine anew

16

whether the petitioner has “show[n] that the claim satisfies

the requirements of this section,” 28 U.S.C. § 2244(b)(4), and

whether the habeas petition has merit, In re Pendleton, 732

F.3d at 282 n.1; Goldblum, 510 F.3d at 219 n.9. In turn, we

may review the district court’s decision. See 28 U.S.C.

§ 2253.

At a policy level, a flexible, case-by-case approach

advances two ends—the need to meet new circumstances as

they arise, and the need to prevent injustice. Cf. Holland v.

Florida, 560 U.S. 631, 650 (2010) (describing these ends in a

different context). Both concerns are at the fore in Section

2255(h)(2) motions. Such motions may involve rules that are

“new” (therefore difficult to foresee) and “substantive,”

thereby involving a particular type of injustice—a “conviction

or sentence that the Constitution deprives the [Government]

of power to impose,” Montgomery, 136 S. Ct. at 732; cf. id.

(noting that “the retroactive application of substantive rules

does not implicate a State’s weighty interests in . . . finality”).

The above considerations of text, context and equity

are encapsulated by the scholarly dissenting opinion of Judge

Elrod in In re Arnick, 826 F.3d 787, 789 (5th Cir. 2016)

(Elrod, J., dissenting). As Judge Elrod observes, a motion

“relies” on a qualifying new rule where the rule “substantiates

the movant’s claim.” Id. This is so even if the rule does not

“conclusively decide[]” the claim or if the petitioner needs a

“non-frivolous extension of a qualifying rule.” Id. at 789-90.

Section 2255(h)(2) does not require that qualifying new rule

be “the movant’s winning rule,” but “only that the movant

rely on such a rule.” Id. at 790 (emphasis in original).

It is for the district court to evaluate the merits of the

17

second or successive habeas petition in the first instance.

This includes “whether the invoked new rule should

ultimately be extended in the way that the movant proposes”

or whether his “reliance is misplaced.” Id. at 791. Other

Circuits agree. See, e.g., In re Hubbard, 825 F.3d 225, 231

(4th Cir. 2016) (holding that “it is for the district court to

determine whether the new rule extends to the movant’s case,

not for this court in this proceeding”); In re Williams, 759

F.3d 66, 72 (D.C. Cir. 2014) (holding that whether the

qualifying new rule “extends” to the petitioner “goes to the

merits of the motion and is for the district court, not the court

of appeals”).

B. Precedent

The above considerations dictate that we should apply

a permissive and flexible, case-by-case approach to deciding

whether a petitioner “relies” on a qualifying new rule (again,

at a prima facie level). Implementing such an approach, we

look to precedent as a guide while recognizing that future

“new” rules may be difficult to foresee.

First, we turn to identical Johnson challenges to the

career offender guideline’s residual clause in pre-Booker,

mandatory Guideline cases. The Second, Sixth, Fourth and

Tenth Circuits have all authorized second or successive

habeas petitions challenging this residual clause in light of

Johnson. See Vargas, No. 16-2112 (2d Cir. May 8, 2017)

(authorizing successive habeas petition, as “Beckles did not

clearly foreclose” petitioner’s Johnson claim under the

mandatory Guidelines); In re Patrick, 833 F.3d 584, 589 (6th

Cir. 2016) (holding that petitioner “easily satisf[ied]” the

prima facie standard); In re Hubbard, 825 F.3d at 231

18

(holding that petitioner made a prima facie showing based

upon Johnson); In re Encinias, 821 F.3d at 1226 (holding that

petitioner sufficiently “rel[ied] on” Johnson to permit

authorization). 12 We find these decisions persuasive. 13

We also draw upon decisions authorizing second or

successive habeas petitions for juveniles sentenced to

mandatory life without parole under Graham v. Florida, 560

U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460

(2012). 14 Most important of these is our own decision

authorizing second or successive habeas petitions for three

juvenile offenders in In re Pendelton, 732 F.3d at 283.

In Pendleton, our Court authorized a successive habeas

12

We acknowledge that only Vargas post-dates

Beckles, which was decided on March 6, 2017. However,

Beckles does not abrogate the other Circuit decisions because,

inter alia, they involve the pre-Booker, mandatory

Guidelines.

13

In contrast, we do not follow the Eleventh Circuit,

which—contrary to our precedent—resolved a merits

question in the context of a motion to authorize a second or

successive habeas petition. In re Griffin, 823 F.3d 1350,

1354 (11th Cir. 2016) (holding that the mandatory career

offender guideline cannot be challenged as vague).

14

Graham held that juvenile life-without-parole

sentences for non-homicide offenses violate the Eighth

Amendment. 560 U.S. at 82. Miller held unconstitutional a

mandatory juvenile life-without-parole sentence for homicide.

567 U.S. at 465.

19

petition for petitioner Corey Grant, who was sentenced to life

imprisonment under the mandatory Guidelines after his

downward departure request was denied. See Br. for

Respondent, In re Grant, 732 F.3d 280 (3d Cir. 2013) (No.

13-1455), 2013 WL 4505735, *29-31. The Government

agreed that Miller was a qualifying new rule. However, it

opposed Grant’s motion because his life sentence was

arguably discretionary, and Miller did not invalidate “a

discretionary life-without-parole sentence.” Id. at *36. The

Government asserted that Grant could refile “[s]hould the

Supreme Court someday foreclose such sentences.” Id. We

rejected this argument and authorized the petition based on

Miller. In re Pendleton, 732 F.3d at 282 n.1. We explained

that “whether Grant actually qualifie[d] for relief under

Miller” was a merits question for the district court to answer

in the first instance. Id.

Similarly, the Fifth Circuit authorized a successive

habeas petition for a juvenile sentenced to life without parole

in In re Sparks, 657 F.3d 258 (5th Cir. 2010). The Sparks

petitioner was convicted of aiding and abetting a carjacking

resulting in death. Id. at 260. Notably, he filed his Section

2255(h) motion based upon Graham and prior to Miller.

Because his crime resulted in death, the petitioner was

arguably seeking to extend Graham to homicide (as the

Supreme Court would later do in Miller). Id. at 260 n.1. The

Fifth Circuit authorized the petition based upon Graham. Id.

The District of Columbia Circuit also authorized a

successive habeas petition in the case of a petitioner serving

life without parole in In re Williams, 759 F.3d at 72. In

Williams, it was unclear whether the petitioner committed his

crimes as a juvenile because he had participated in a

20

conspiracy spanning both his juvenile and adult years. As

such, the Government argued that the petitioner was not

relying on Graham and Miller but rather an “extension” of

those cases. Id. at 70-71. Again, the Court rejected this

argument and held that the petitioner “made a prima facie

showing that he relie[d] on” Graham and Miller. Id. at 71.

Whether those cases “extend[ed]” to the petitioner was a

merits question for the district court. Id. at 72; see also id. at

70-71.

At the other end of the spectrum, this Court regularly

declines to authorize second or successive habeas petitions

that are “foreclosed by our precedent or otherwise frivolous.”

In re Arnick, 826 F.3d at 790 (Elrod, J., dissenting). To take

the obvious example, we have denied Johnson challenges to

the career offender guideline’s residual clause in advisory

Guidelines cases as foreclosed by Beckles. “Certainly a

movant cannot invoke a new rule by reading it so expansively

as to contradict binding precedents. The movant’s requested

extension also cannot be so facially implausible that he is not

really ‘relying’ on the new rule at all.” Id. at 791 (citations

omitted).

C. The Eighth Circuit’s Approach

In contrast to the permissive and flexible, case-by-case

approach described and illustrated above, the Government

proposes a different test that would strictly define when a

petitioner may rely on a qualifying new rule. Specifically, the

Government suggests that we take the approach of the Eighth

Circuit in Donnell v. United States, 826 F.3d 1014 (8th Cir.

2016). We decline to do so.

21

In Donnell, the petitioner raised a pre-Beckles

challenge to the career offender guideline’s residual clause

under the advisory Guidelines. Id. at 1015. The Eighth

Circuit refused to authorize a second or successive habeas

petition on the ground that the petitioner sought to “extend”

Johnson. Id. at 1015. More specifically, the Court held that

the petitioner impermissibly “urge[d] the creation of a second

new rule.” Id. at 1017.

The Eighth Circuit’s approach is inconsistent with the

text of Section 2255(h)(2), which contains only “three

prerequisites,” Tyler, 533 U.S. at 662, and no requirement

that we scrutinize a motion to see if it would produce a

“second new rule.” Nor does the context of Section 2244(b)

support such a position. As stated above, we ordinarily rule

on a Section 2255(h)(2) motion within thirty days, 28 U.S.C.

§ 2244(b)(3)(D), and without the possibility of a “petition for

rehearing or for a writ of certiorari,” 28 U.S.C.

§ 2244(b)(3)(E). As the Supreme Court has observed, we do

not “have to engage in . . . difficult legal analysis” under such

cramped conditions. Tyler, 533 U.S. at 664.

The Eighth Circuit’s approach may be simple to state,

but it epitomizes a “difficult” analysis in practice. Although

Donnell does not cite Teague, the way to determine whether a

Section 2255(h) motion “urges the creation of a second new

rule,” Donnell, 826 F.3d at 1017, is to undertake a Teague

analysis. The Government agrees. See Br. for Respondent 35

(“The rule that Hoffner seeks to establish . . . is a ‘new’

constitutional rule, because the invalidity of the guideline’s

residual clause . . . was not ‘dictated by precedent existing at

22

the time [his] conviction became final.’”). 15 Whether a rule is

15

The Government quotes Chaidez v. United States,

568 U.S. 342, 347-48 (2013), which more completely

explains that a “new” rule under Teague is one that

“breaks new ground or imposes a

new obligation” on the

government. “To put it

differently,” . . . “a case

announces a new rule if the result

was not dictated by precedent

existing at the time the

defendant’s conviction became

final.” And a holding is not so

dictated . . . unless it would have

been “apparent to all reasonable

jurists.”

But that account has a flipside.

Teague also made clear that a case

does not “announce a new rule . . .

[when] it ‘[is] merely an

application of the principle that

governed’” a prior decision to a

different set of facts. As Justice

Kennedy has explained, “[w]here

the beginning point” of our

analysis is a rule of “general

application, a rule designed for

the specific purpose of evaluating

a myriad of factual contexts, it

will be the infrequent case that

23

“new” under Teague is often uncertain. As a leading treatise

puts it, a “review of circuit court decisions applying Teague

reveals little to distinguish the rules that have been

denominated ‘new’ from those deemed not to be ‘new.’

Indeed, it has become increasingly commonplace to find

inter- or intra-circuit conflicts as to whether a particular rule

is or is not ‘new.’ Such conflicts may linger for years before

the Supreme Court eventually steps in to resolve the matter.”

2-25 Hertz & Liebman, supra, § 25.5 (citations omitted). The

search for a “second new rule” is thus ill-suited to the context

of Section 2244(b). We decline to adopt the Donnell

approach and need not determine whether applying Johnson

to Hoffner would create a “second new rule.”

Instead, we consider Hoffner’s motion permissively

and flexibly, with precedent as a guide. Like the Second,

Sixth, Fourth and Tenth Circuits, we conclude that Hoffner

has made a “prima facie showing,” 28 U.S.C.

§ 2244(b)(3)(C), that he relies on Johnson. See Vargas, No.

16-2112 (2d Cir. May 8, 2017); In re Patrick, 833 F.3d at

589; In re Hubbard, 825 F.3d at 231; In re Encinias, 821 F.3d

at 1226. We will therefore authorize Hoffner to file a

successive habeas corpus petition. It will be for the District

Court to determine in the first instance whether his petition

has merit.

yields a result so novel that it

forges a new rule, one not dictated

by precedent.”

Id. at 347-48 (citations omitted).

24

V. Conclusion

For the foregoing reasons, we will grant Hoffner’s

Section 2255(h) motion and authorize him to file a successive

habeas corpus petition in the District Court.

25