In Re: Orlando Hall

Case: 19-10345 Document: 00515621458 Page: 1 Date Filed: 10/30/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 30, 2020

No. 19-10345 Lyle W. Cayce

Clerk

In re: Orlando Cordia Hall,

Movant.

Motion for an order authorizing

the United States District Court for the

Northern District of Texas to consider

a successive 28 U.S.C. § 2255 application

Before Dennis, Ho, and Oldham, Circuit Judges.

James C. Ho, Circuit Judge:

Over two decades ago, Orlando Cordia Hall and his conspirators

kidnapped and then repeatedly raped a 16-year-old high school student.

They then took turns beating her with a shovel, before covering her with

gasoline and burying her alive. A jury convicted Hall of four federal crimes

and sentenced him to death. His convictions have been repeatedly and

unanimously upheld on appeal, both on direct review and in two federal

habeas petitions. He now seeks authorization to file a third federal habeas

petition.

Among his four convictions, Hall was sentenced to death for the crime

of kidnapping resulting in death. He does not challenge that conviction here,

however. Instead, he challenges his conviction under 18 U.S.C. § 924(c) for

carrying a firearm during a crime of violence. He argues, counterintuitively,

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that kidnapping resulting in death is somehow not a proper predicate “crime

of violence” to support a § 924(c) conviction. We disagree.

There are two ways for the Government to establish a “crime of

violence” under 18 U.S.C. § 924(c)(3). A “crime of violence” includes any

felony that either (A) “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another”

(commonly known as the “elements” clause), or (B) “by its nature, involves

a substantial risk that physical force against the person or property of another

may be used in the course of committing the offense” (commonly known as

the “residual” clause).

The Supreme Court recently held the residual clause to be

unconstitutionally vague in Davis v. United States, 139 S. Ct. 2319 (2019). So

Hall hopes to challenge his § 924(c)(3) conviction by asking this court to

apply Davis retroactively to his case. Because this is a successive federal

habeas petition, however, he must show (among other things) that Davis has

been “made retroactive to cases on collateral review by the Supreme Court.”

28 U.S.C. § 2255(h)(2) (emphasis added).

There is no need to reach the residual clause issue, because as we shall

explain, kidnapping resulting in death plainly satisfies the elements clause of

§ 924(c)(3). In doing so, however, we observe that he may not be entitled to

relief under the residual clause either. We acknowledge that, according to

five of our sister circuits, Davis was “made retroactive . . . by the Supreme

Court” through its previous ruling in Welch v. United States, 136 S. Ct. 1257

(2016). But we are not so sure. The Government did not contest the issue

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in any of those circuits, thus depriving those circuits of adversarial process. 1

Moreover, at least seven members of the federal judiciary—three of our

colleagues and four Justices of the Supreme Court—have made clear that

rulings such as Davis are not automatically retroactive, and thus must be

made retroactive by the Supreme Court in a future case to comply with

provisions such as 28 U.S.C. § 2255(h)(2).

We do not ultimately reach the residual clause issue, however,

because we conclude that kidnapping resulting in death satisfies the elements

clause of § 924(c)(3). Accordingly, we deny Hall authorization to proceed

on this successive habeas petition.

I.

Hall’s conspirators violently kidnapped a 16-year-old high school

student, Lisa Rene, inside her apartment. United States v. Hall, 152 F.3d 381,

389 (5th Cir. 1998). They tackled and dragged Rene to a car, where Hall was

waiting and where he raped her. Hall and his conspirators then took Rene

from Arlington, Texas to Pine Bluff, Arkansas. Id.

The next day, Hall and his conspirators rented a motel room, where

they tied their victim to a chair and raped her repeatedly. Id. Hall and at least

one conspirator were armed with handguns. Id. One of the conspirators

decided that Rene “kn[e]w too much,” and so they went to Byrd Lake Park

to dig a grave. Id. One day later, Hall and his conspirators blindfolded Rene

and took her to the grave site. Id. at 390. There, they beat her over the head

1

Nor did the Government contest the issue before our court. So we appointed

amicus curiae here to present the opposing view—just as the Supreme Court did in

Welch. Notably, the Government made clear during oral argument that it had no

institutional objection to the contention by amicus that Davis is not retroactive for

purposes of 28 U.S.C. § 2255(h)(2).

We thank amicus curiae for his excellent brief and oral argument.

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with a shovel. Id. She screamed and tried to escape, but they caught her and

took turns beating her with a shovel. Id. One of the conspirators covered

Rene in gasoline and they then buried her alive. Id.

Within a week, Hall and his conspirators were arrested and charged

with Lisa Rene’s kidnapping resulting in death. Id. Hall was convicted of

four crimes: kidnapping resulting in death (death sentence), conspiracy to

commit kidnapping (life imprisonment), traveling interstate to distribute

drugs (sixty months served concurrently with the life sentence), and carrying

a firearm during a crime of violence (sixty months to be served consecutively

to the other sentences). Id.

Hall’s trial and convictions occurred in 1995, and he brought his first

§ 2255 motion in 2002. Hall v. United States, 2004 WL 1908242, at *1 (N.D.

Tex. Aug. 24, 2004). The district court denied Hall’s motion, and our court

denied his request for a certificate of appealability. United States v. Hall,

455 F.3d 508 (5th Cir. 2006). We also denied Hall’s 2016 motion to file a

second habeas petition. In re Hall, No. 16-10670, slip op. at *3 (5th Cir. June

20, 2016).

Hall now seeks authorization to file a third habeas petition under

28 U.S.C. § 2255 to challenge his yet-unserved sixty-month sentence for

carrying and using a firearm during a crime of violence. He argues that Davis

v. United States, 139 S. Ct. 2319 (2019), which set aside the residual clause of

§ 924(c)(3), requires that his conviction for carrying a firearm during a crime

of violence also be set aside—and that vacatur of his § 924(c) conviction

would somehow require vacatur of his death sentence as well. As we shall

demonstrate, however, Davis left intact the elements clause of § 924(c), and

the crime of kidnapping resulting in death falls within the elements clause.

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II.

To satisfy the elements clause, a crime of violence must have as a

required element “the use . . . of physical force.” 18 U.S.C. § 924(c)(3)(A).

The Supreme Court has defined “physical force” in this context to mean

“violent force—that is, force capable of causing physical pain or injury to

another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). And

“force” includes “direct” and “indirect force,” as well as “knowing or

reckless conduct.” United States v. Reyes-Contreras, 910 F.3d 169, 182–83

(5th Cir. 2018) (en banc).

Courts use the categorical approach to determine whether an offense

fits within § 924’s elements clause. See, e.g., id. at 174. That “requires us

first to identify the crime of conviction.” Id. Courts must “‘look only to the

statutory definitions’—i.e., the elements—of [an offense], and not ‘to the

particular facts underlying those convictions.’” Descamps v. United States,

570 U.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600

(1990)). Elements are the parts of a crime that the “prosecution must prove

to sustain a conviction.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)

(quoting Black’s Law Dictionary 634 (10th ed. 2014)).

When a statute lists multiple elements of conviction in the alternative,

it is “divisible” into different offenses. Id. at 2249. To determine which

offense formed the basis for the conviction, courts look to the trial record,

“including charging documents, plea agreements, transcripts of plea

colloquies, findings of fact and conclusions of law from a bench trial, and jury

instructions and verdict forms”—a process known as the “modified categorical

approach.” Johnson, 559 U.S. at 144 (emphases added). See also Shepard v.

United States, 544 U.S. 13 (2005).

The federal kidnapping resulting in death provision involves different

elements of conviction from the general federal crime of kidnapping—

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namely, the additional requirement that “the death of [a] person results”—

and triggers an enhanced penalty. 18 U.S.C. § 1201(a). Accordingly, we

conclude that kidnapping resulting in death is a different offense than generic

kidnapping. See, e.g., Burrage v. United States, 571 U.S. 204, 210 (2014)

(“Because the ‘death results’ enhancement increased the minimum and

maximum sentences to which Burrage was exposed, it is an element.”);

United States v. Ruiz-Hernandez, 890 F.3d 202, 210 (5th Cir. 2018) (similar).

Kidnapping resulting in death has as an element “the use . . . of

physical force” as required under 18 U.S.C. § 924(c)(3)(A). We note that

the Eighth Circuit recently reached the same conclusion. See United States

v. Ross, 969 F.3d 829, 839 (8th Cir. 2020) (“Because the offense of

kidnapping resulting in death has as an element the use of force, it is a crime

of violence under § 924(c).”). And for good reason.

The “use of force” is not limited to the intentional or knowing use of

force—it also includes conduct that recklessly disregards the risk of injury to

another person. See, e.g., Voisine v. United States, 136 S. Ct. 2272, 2279

(2016) (“[T]he word ‘use’ does not demand that the person applying force

have the purpose or practical certainty that it will cause harm, as compared

with the understanding that it is substantially likely to do so. . . . [T]hat word

is indifferent as to whether the actor has the mental state of intention,

knowledge, or recklessness with respect to the harmful consequences of his

volitional conduct.”); Reyes-Contreras, 910 F.3d at 183 (“[T]he ‘use of force’

does not require intent because it can include knowing or reckless

conduct.”).

This principle should decide this case, for it seems obvious that the

act of kidnapping, and especially kidnapping resulting in death, necessarily

contemplates the reckless disregard of the risk of serious injury to the victim.

Judge Colloton put the point well, when he stated: “Reckless disregard for

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human life is inherent in the commission of felonies such as robbery and

kidnapping that carry a grave risk of death.” Ross, 969 F.3d at 839 (emphasis

added). After all, “intentional kidnapping necessarily involves ‘a deliberate

decision to endanger another’ that amounts to recklessness.” Id. (quoting

Voisine, 136 S. Ct. at 2279)). So “[w]here a perpetrator intentionally kidnaps

a victim, and the kidnapping results in the victim’s death, the perpetrator’s

mental state is sufficient to show that he necessarily ‘used’ force against the

victim.” Id.

We acknowledge that the Eighth Circuit decision was not unanimous.

As the dissent there acknowledged, “[s]hooting someone multiple times in

the course of a kidnapping sure sounds like a ‘crime of violence.’” Id. at 845

(Stras, J., dissenting). But “[s]uppose that an individual gets in a car with a

person impersonating an Uber driver and dies, either in a tragic car accident

caused by the driver’s recklessness or by jumping out after discovering the

driver’s true identity. Both scenarios qualify as kidnapping by

‘inveigle[ment]’ or ‘decoy[ ],’ and each ‘results’ in death. And critically,

neither involves the use of force.” Id. (citations omitted).

But we disagree that these hypothetical scenarios do not involve the

use of force. We agree instead with Judge Colloton, who responds: “If a

kidnapper inveigles a victim into his car and then causes her death by

recklessly crashing the vehicle or prompting the victim to flee from the

speeding car, the kidnapper’s offense involves the use of force against the

victim.” Id. at 839. As he puts it, “[f]orce is necessary to kill the victim when

she slams into the windshield or the pavement.” Id. And “[t]he application

of force is not an accident: when the perpetrator intentionally deceives and

kidnaps the victim, he makes a deliberate decision to endanger her and acts

with reckless disregard for her safety.” Id. Put simply, the defendant uses

force in keeping the victim against her will—and that act undoubtedly creates

a serious risk that she will die trying to break free.

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So we have no difficulty concluding that kidnapping resulting in death

entails the kind of reckless conduct contemplated by the “use of force”

required under 18 U.S.C. § 924(c)(3)(A). Nor do we see any real risk that

the federal kidnapping statute could be read to cover conduct short of

recklessness. Indeed, every case within our circuit involving the crime of

kidnapping resulting in death has involved at least reckless conduct. See, e.g.,

United States v. Webster, 162 F.3d 308, 322 (5th Cir. 1998); United States v.

Whitmore, 386 F. App’x 464, 467–68 (5th Cir. 2010). So even if there were

such a thing as “negligent” kidnapping—even if there were “a theoretical

possibility” that a defendant could commit the crime of kidnapping resulting

in death without knowingly, intentionally, or even recklessly employing

physical force—there is no “realistic probability . . . that the [Government]

would apply [the] statute to [such] conduct.” United States v. Castillo-

Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc) (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

This conclusion is further reinforced by the fact that Hall was charged

with the capital crime of kidnapping resulting in death. As in any federal

capital case, Hall’s charging documents expressly incorporated the federal

capital statute. See 18 U.S.C. § 3591(a)(2); see also Hall, 152 F.3d at 419

(noting that a “superseding indictment containing capital charges was

returned on November 22, 1994”). So did the jury instructions. The trial

judge instructed jurors that they “must as a preliminary matter unanimously

agree that the government has proven beyond a reasonable doubt that the

defendant, Orlando Cordia Hall . . . intentionally killed the victim” under

18 U.S.C. § 3591(a)(2). United States v. Hall, 4:94-CR-121-Y-2, Dkt. 458 at

4–5 (N.D. Tex., Nov. 3, 1995).

Any offense that incorporates the elements of 18 U.S.C. § 3591(a)(2)

is a crime of violence. After all, that statute makes clear that no federal capital

sentence shall be issued unless it is “determined beyond a reasonable doubt”

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that the defendant “(A) intentionally killed the victim; (B) intentionally

inflicted serious bodily injury that resulted in the death of the victim; (C)

intentionally participated in an act, contemplating that the life of a person

would be taken or intending that lethal force would be used in connection

with a person, other than one of the participants in the offense, and the victim

died as a direct result of the act; or (D) intentionally and specifically engaged

in an act of violence, knowing that the act created a grave risk of death to a

person, other than one of the participants in the offense, such that

participation in the act constituted a reckless disregard for human life and the

victim died as a direct result of the act.” 18 U.S.C. § 3591(a)(2). Any one of

these provisions satisfies the elements clause of 18 U.S.C. § 924(c).

In sum, all federal capital charges must incorporate the required

elements of § 3591(a)(2), and therefore necessarily satisfy the elements

clause of § 924(c). So we have no difficulty concluding that capital

kidnapping resulting in death is a crime of violence under the elements

clause.

Hall’s challenge to his § 924(c) conviction therefore fails. Davis set

aside § 924(c)(3)’s residual clause as unconstitutionally vague. Davis, 139 S.

Ct. at 2324. But it had no effect on convictions under the elements clause.

III.

We uphold Hall’s § 924(c) conviction under the elements clause.

Moreover, it is far from clear that Hall would be entitled to relief under the

residual clause in any event.

We acknowledge that five of our sister circuits have held Davis

retroactively applicable to successive habeas petitions, notwithstanding the

express statutory requirement that the new rule of constitutional law has

been “made retroactive to cases on collateral review by the Supreme Court.”

28 U.S.C. § 2255(h)(2) (emphasis added). See King v. United States, 965 F.3d

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60, 64 (1st Cir. 2020); In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019); In re

Matthews, 934 F.3d 296, 301 (3rd Cir. 2019); In re Hammoud, 931 F.3d 1032,

1039 (11th Cir. 2019); see also In re Franklin, 950 F.3d 909, 910 (6th Cir. 2020)

(“Lower courts may determine on their own the retroactivity of new rules when

‘[m]ultiple cases . . . necessarily dictate the retroactivity of the new rule.’”)

(emphasis added) (quoting Tyler v. Cain, 533 U.S. 656, 664 (2001)).

But none of those courts received adversarial briefing on the issue. Cf.

Lankford v. Ohio, 500 U.S. 110, 127 (1991) (recognizing “the critical role that

the adversary process plays in our system of justice”). What’s more, in In re

Hammoud, 931 F.3d at 1039, the first case to assume Davis’s retroactivity, the

Government never even mentioned Davis. And in subsequent cases, the

Government has simply followed Hammoud.

Adversarial briefing might very well have altered the outcome in those

other circuits. In fact, at least seven respected jurists have concluded that

decisions like Davis are not automatically retroactive—and thus must be

made retroactive by the Supreme Court in a future case to satisfy provisions

such as 28 U.S.C. § 2255(h)(2). In Pisciotta v. Harmon, 748 F. App’x 634

(5th Cir. 2019) (per curiam), three of our colleagues rejected the argument

that Sessions v. Dimaya, 138 S. Ct. 1204 (2018), is by itself retroactively

available on collateral review. See Pisciotta, 748 F. App’x at 635 (“Dimaya

did not address whether its holding might apply retroactively on collateral

review”). There is no principled distinction between Dimaya and Davis, and

Hall does not claim otherwise. Similarly, four Justices indicated (and none

of their colleagues disagreed) that it would take a future ruling to determine

whether Davis is retroactive, stating: “[W]ho knows whether the ruling [in

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Davis] will be retroactive?” Davis, 139 S. Ct. at 2354 (Kavanaugh, J.,

dissenting). 2

If these seven jurists are right, then their conclusion presents yet

another fatal flaw to Hall’s successive petition. After all, his successive

petition cannot proceed unless Davis has been “made retroactive . . . by the

Supreme Court.” 28 U.S.C. § 2255(h)(2). To be sure, the Supreme Court

has made clear in dicta that the “right combination of holdings” can make a

holding retroactive. Tyler, 533 U.S. at 666. But those prior holdings must

“necessarily dictate” retroactivity of the new rule. Id.

A reasonable jurist could easily read Welch and conclude that Davis’s

retroactivity logically follows. But that is different from saying that Welch

necessarily dictates that outcome. A reasonable jurist might well predict that

the Supreme Court would make Davis retroactive if asked. But a successive

habeas petition may proceed only if Davis has been “made retroactive . . . by

the Supreme Court,” 28 U.S.C. § 2255(h)(2)—not if everyone merely agrees

the Supreme Court will make it retroactive. If it takes further legal analysis

to decide the retroactivity question—as at least seven respected members of

the federal judiciary have concluded—then the requirements of 28 U.S.C.

§ 2255(h)(2) have not been met.

But this issue will remain for another day. Hall’s § 924(c) conviction

falls within the elements clause. We deny Hall authorization to proceed on

his successive habeas petition for that reason.

2

We recently relied on the separate writings of various justices to help

demonstrate that a ruling has not been made retroactive by the Supreme Court. See In

re Sharp, 969 F.3d 527, 528 (5th Cir. 2020) (per curiam) (citing Ramos v. Louisiana, 140

S. Ct. 1390, 1407 (2020) (plurality opinion); id. at 1420 (Kavanaugh, J., concurring in

part); id. at 1348 (Alito, J., dissenting)).

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IV.

The dissent accuses us of committing a “host of grievous errors” in

this “federal death penalty case.”

But this proceeding has nothing to do with Hall’s death sentence. Hall

was convicted and sentenced to death for the crime of federal kidnapping

resulting in death under 18 U.S.C. § 1201(a). And notably, Hall does not

question the validity of that conviction, or the resulting sentence of death,

anywhere in this proceeding. Instead, Hall brings this third petition to

challenge only his separate conviction under 18 U.S.C. § 924(c) for carrying

a firearm during a crime of violence, for which he was separately sentenced

to 60 months imprisonment.

Nor do we see any error in that 60-month sentence. To begin with, as

we explain, that 60-month sentence is fully supported under the elements

clause of § 924(c). In fact, we adopt precisely the same approach as the

Eighth Circuit in concluding that kidnapping resulting in death inherently

involves conduct in reckless disregard to human life, and thereby satisfies the

elements clause of § 924(c). See Ross, 969 F.3d at 839. And we follow our

own en banc precedent in concluding that there is no “realistic probability”

that a defendant could be prosecuted for kidnapping resulting in death based

on anything less than reckless conduct. See Castillo-Rivera, 853 F.3d at 222.

The dissent would simply prefer that we ignore circuit decisions on both of

these points.

The dissent also criticizes our reliance on 18 U.S.C. § 3591(a)(2), the

federal death penalty statute. Specifically, the dissent accuses us of

misreading § 3591(a)(2)(C)—claiming that that provision requires only

participation in “an act,” and not participation in “an act of violence.” But

that ignores nearly the entire text of § 3591(a)(2)(C). That provision

authorizes the death penalty only if the defendant “intentionally participated

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in an act, contemplating that the life of a person would be taken or intending that

lethal force would be used in connection with a person, other than one of the

participants in the offense, and the victim died as a direct result of the act.”

18 U.S.C. § 3591(a)(2)(C) (emphasis added). Read in full, § 3591(a)(2)(C)

plainly involves the use of force. The dissent claims that its atextual reading

of § 3591(a)(2)(C) is somehow supported by our decision in United States v.

Williams, 610 F.3d 271 (5th Cir. 2010). It is not—indeed, Williams does not

even involve § 3591(a)(2)(C). See id. at 284 (“In Williams’s case, the sole

threshold intent submitted to the jury during the eligibility phase was that

contained in 18 U.S.C. § 3591(a)(2)(D).”). 3

And as for the dissent’s criticism of our discussion of the residual

clause, it ignores the fact that we are simply agreeing with seven respected

members of the judiciary that decisions like Davis are not automatically

retroactive and therefore must be made retroactive by the Supreme Court in

3

The dissent also implies that it is somehow improper for us to decide this case

based on the elements clause. It observes in passing that “Hall was charged, tried, and

convicted by a jury that was instructed on the definition of that residual clause”—

implying (without explanation) that the issue is somehow waived, and that we therefore

may not deny authorization for Hall’s third habeas petition based on the elements

clause. There are at least two problems with this theory. First, the dissent neglects to

mention that the trial court instructed the jury on the elements clause as well as the

residual clause. To quote the court’s instructions to the jury: “The term ‘crime of

violence’ means an offense that is a felony and—(A) has as an element the use of

physical force against the person or property of another, or (B) that by its nature,

involves a substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.” United States v. Hall, 4:94-CR-

121-Y-2, Dkt. 444 at 10 (N.D. Tex. Oct. 31, 1995). Second, even if Hall was originally

convicted based on the residual clause, we have held that any such error is “harmless”

so long as the conviction can be upheld under the elements clause. See, e.g., United

States v. Griffin, 946 F.3d 759, 761 (5th Cir. 2020) (although “the district court

recognized that it relied on the residual clause at Griffin’s 2008 sentencing . . . reliance

on the residual clause was harmless if Griffin’s three convictions also satisfied the

other, still-valid definitions of ‘violent felony.’”).

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a future case to satisfy 28 U.S.C. § 2255(h)(2). See Pisciotta, 748 F. App’x at

635; Davis, 139 S. Ct. at 2354 (Kavanaugh, J., dissenting). Instead, the

dissent criticizes us for neglecting our decision in In re Sparks, 657 F.3d 258,

261–62 (5th Cir. 2011). But Sparks confirms our point here—that to satisfy

28 U.S.C. § 2255(h)(2), “multiple holdings” taken together must

“necessarily dictate” that a new rule announced by the Supreme Court

applies retroactively. Id. at 261. Moreover, nothing in Sparks allows us to

ignore the conclusion of seven respected jurists that decisions like Davis and

Dimaya have not been previously made retroactive by the Supreme Court.

***

It has been over two decades since Hall was sentenced to death for the

brutal killing of an innocent 16-year-old. His conviction has been repeatedly

affirmed on appeal, under both direct review and following multiple habeas

petitions. It is time—indeed, long past time—for these proceedings to end.

Hall’s request for authorization to proceed on his successive habeas petition

is denied.

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James L. Dennis, Circuit Judge, dissenting:

In this federal death penalty case, the majority commits a host of

grievous errors to arrive at its conclusion that movant Orlando Hall fails to

satisfy the standards for authorization to file a successive habeas petition.

First, the majority decides that the 18 U.S.C. § 924(c) conviction that Hall

challenges as unconstitutional can be sustained because, in its view, Hall’s

predicate crime of violence (COV) for kidnapping “plainly satisfies” the

elements clause of § 924(c). Thus, the majority decides that, despite §

924(c)’s residual clause having been declared unconstitutional in United

States v. Davis, 139 S. Ct. 2319 (2019), and despite the fact that Hall was

charged, tried, and convicted by a jury that was instructed on the definition

of that residual clause, that Hall’s trial and conviction could not possibly have

been affected by the invalidity of § 924(c)’s residual clause. Lacking any on-

point precedent for denying Hall’s claim, the majority reaches its erroneous

conclusion only by concocting a far more onerous requirement for

authorization than the statutorily-mandated prima facie standard and thus

erects an unprecedented barrier to authorization. Second, after arriving at its

unjustified decision, the majority reels out several pages of dicta that

wrongfully and needlessly cast doubt on the unanimous holdings of all four

of our sister circuits that have decided that the rule announced in Davis

applies retroactively so as to authorize successive habeas petitions. In doing

so, the majority advances an eccentric reading of 28 U.S.C. § 2255(h)(2), the

provision governing the requirements for authorization, that is contrary not

only to our well-established circuit precedent but also to the holdings of every

other circuit court.

Because I would follow binding circuit precedent in this capital case

and join four other federal courts of appeal in holding that Davis applies

retroactively to successive habeas petitions, and because Hall has made “a

sufficient showing of possible merit” that he can benefit from that decision,

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Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001) (internal

quotation marks omitted), I would grant his motion for authorization. The

majority errs in holding otherwise, so I must respectfully dissent.

I.

To receive authorization to file a successive habeas petition, Hall must

make a “prima facie” showing that his claim relies on “a new rule of consti-

tutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C. §§ 2244(b)(3)(C),

2255(h)(2). A prima facie showing is “simply a sufficient showing of possible

merit to warrant a fuller exploration by the district court.” Reyes-Requena,

243 F.3d at 899. Hall claims that his conviction for carrying a firearm during

a COV is invalid under the Supreme Court’s recent decision in Davis, which

declared void for vagueness § 924(c)’s “residual clause.” Having identified

Davis as the case on which he relies, the first question is whether that decision

has been “made retroactive to cases on collateral review by the Supreme

Court.” § 2255(h)(2).

In Teague v. Lane, 489 U.S. 288, 311 (1989), the Supreme Court

announced two types of rules that should be applied retroactively to cases on

collateral review: substantive rules of constitutional law (the first Teague

exception) and watershed rules of criminal procedure (the second Teague

exception). This case implicates only the first Teague exception.

“Substantive rules . . . set forth categorical constitutional guarantees

that place certain criminal laws and punishments altogether beyond the

State’s power to impose.” Montgomery v. Louisiana, 136 S. Ct.718, 729

(2016); see also Teague, 489 U.S. at 311 (explaining that substantive rules are

those that “place[] certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to proscribe.”

(internal quotation marks omitted)). And “[c]ourts must give retroactive

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effect to new substantive rules of criminal law.” Montgomery, 136 S. Ct. at

728, 736 (holding that Miller v. Alabama, 567 U.S. 460 (2012), which held as

unconstitutional mandatory life imprisonment without parole for juvenile

offenders, announced a new substantive rule of constitutional law that must

be given retroactive effect).

In United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019), we held

that the Supreme Court’s decision in Davis was substantive and thus applied

retroactively to a first habeas petition. “[T]he rule announced in Davis meets

the standard for a new substantive rule,” we reasoned, because its

invalidation of § 924(c)’s residual clause “narrow[ed] the scope of conduct

for which punishment is now available.”

Our conclusion was reinforced by the Supreme Court’s twin decisions

in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States,

136 S. Ct. 1257 (2016). In Johnson, the Court declared that the residual clause

of the Armed Career Criminal Act (ACCA)—which is worded similarly to

the residual clause in § 924(c)—was void for vagueness. 135 S. Ct. at 2563.

Then, in Welch, the Court held that Johnson established a substantive rule,

because it limited the “substantive reach of the A[CCA], altering the range

of conduct or the class of persons that the Act punishes.” Welch, 136 S. Ct.

at 1265 (cleaned up). Because Johnson announced a substantive rule, the

Welch Court held that it “has retroactive effect . . . in cases on collateral

review.” Id.

Davis, we have recognized, “operates in much the same way” as

Johnson. Reece, 938 F.3d at 635. “[T]he residual clause [of §924(c)] allows

for punishment of certain offenses that the elements clause cannot otherwise

reach. Consequently, the residual clause’s invalidation narrows the scope of

conduct for which punishment is now available.” Id. And because Davis,

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like Johnson, narrows the scope of punishable conduct, it too is “a substantive

decision and so has retroactive effect.” Welch, 136 S. Ct. at 1265.

As noted, Reece was decided within the initial habeas petition context,

and therefore considered under 28 U.S.C. § 2255(f)(3) whether the right

“recognized by the Supreme Court” in Davis had been “made retroactively

applicable to cases on collateral review.” § 2255(f)(3). Motions, like Hall’s,

for authorization to file a successive habeas petition are governed by 28 U.S.C.

§ 2255(h)(2); this provision contains slightly different statutory language

from § 2255(f)(3), requiring that a movant rely on a “new rule of constitu-

tional law, made retroactive to cases on collateral review by the Supreme

Court.” Id. § 2255(h)(2) (emphasis added). The question, then, becomes

whether the Supreme Court has “made [Davis] retroactive.” Id.

There are two ways the Court can make “a new rule . . . retroactive

within the meaning of § 2255(h)(2) [:] (1) the Supreme Court itself must . . .

expressly h[o]ld that the new rule is retroactive on collateral review, or (2)

the Supreme Court’s holdings in multiple cases . . . must necessarily dictate

retroactivity of the new rule.” In re Hammoud, 931 F.3d 1032, 1038–39 (11th

Cir. 2019) (cleaned up) (quoting Tyler v. Cain, 533 U.S. 656, 666 (2001)). 4

Though the first possibility has not yet occurred with respect to Davis, I

would conclude—like every other court that has considered this question—

that Davis’s retroactivity is “necessarily dictate[d]” by the Court’s hold-

ings.” Tyler, 533 U.S. at 666.

In her concurrence in Tyler v. Cain, Justice O’Connor employed a syl-

logism to demonstrate how, despite the absence of an express holding by the

4

“Although Tyler was decided in the context of a successive petition filed by a

state prisoner and interprets 28 U.S.C. § 2244(b)(2)(A), the decision applies with equal

force to the identically worded § 2255(h)(2) standard.” In re Sparks, 657 F.3d 258, 260

n.2 (5th Cir. 2011) (per curiam).

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Court that a rule applies retroactively, “multiple holdings” taken together

can “logically dictate the retroactivity of [a] new rule”:

if we hold in Case One that a particular type of rule applies ret-

roactively to cases on collateral review and hold in Case Two

that a given rule is of that particular type, then it necessarily

follows that the given rule applies retroactively to cases on col-

lateral review. In such circumstances, we can be said to have

“made” the given rule retroactive to cases on collateral review.

Id. at 668-669 (O’Connor, J., concurring). Applying this syllogism, Justice

O’Connor noted that the Court in Teague had determined that “a new rule

should be applied retroactively if it places certain kinds of primary, private

individual conduct beyond the power of the criminal law-making authority to

proscribe.” Id. at 669 (quoting Teague, 489 U.S. at 307). Teague, then, was

“Case One” in Justice O’Connor’s syllogism. “When the Court holds as a

new rule in a subsequent case”—a case following Teague—“that a particular

species of primary, private individual conduct is beyond the power of the

criminal lawmaking authority to proscribe, it necessarily follows that this Court

has ‘made’ that new rule retroactive to cases on collateral review.” Id. (em-

phasis added). In other words, after Teague, whenever the Supreme Court

announces a substantive rule—that is, one that “places certain kinds of pri-

mary, private individual conduct beyond the power of the criminal lawmaking

authority to proscribe,” Teague, 489 U.S. at 307—that rule necessarily has

been made retroactive by the Court.

In In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011), we applied Justice

O’Connor’s logic in holding that a substantive rule set forth by the Supreme

Court necessarily had been made retroactive by the Court. There, a juvenile

non-homicide offender who had been sentenced to life imprisonment without

the possibility of parole moved for authorization to file a successive § 2255

petition. Sparks, 657 F.3d at 259. He argued that his sentence was

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unconstitutional under the Supreme Court’s decision in Graham v. Florida,

560 U.S. 48 (2010), which barred life without parole for the movant’s class.

Id. at 260. We granted authorization, holding that Graham established a sub-

stantive rule and, consequently, applied retroactively. Id. at 261-62. The rule

in Graham, we explained, fell under the first Teague exception, i.e., presented

a substantive rule, because it “prohibit[ed] a certain category of punishment

for a class of defendants because of their status or offense.” Id. at 261 (quot-

ing Penry v. Lynaugh, 492 U.S. 302, 330, overruled on other grounds by Atkins

v. Virginia, 536 U.S. 304 (2002)). Under the retroactivity principles articu-

lated by Justice O’Connor in Tyler, “the combined effect of the holding of

Graham itself and the first Teague exception,” was that the Supreme Court,

“as a matter of logical necessity,” had “made [Graham] retroactive on col-

lateral review.” Id. at 262. Put simply, Teague’s rule that substantive deci-

sions apply retroactively plus Graham’s announcement of a substantive rule

meant that the Court had “made” Graham retroactive within the meaning of

§ 2255(h)(2), even though it had not explicitly said so. See id.

As is evident, necessary to the decision in Sparks was application of

Justice O’Connor’s syllogism. See id. Because the use of that syllogism

formed part of Sparks’s holding, we are bound to follow it as this case is in-

distinguishable from Sparks for retroactivity purposes. Applying Justice

O’Connor’s syllogism here, it is clear that Davis applies retroactively. Again,

the first Teague exception (Case One) establishes that substantive rules nec-

essarily apply retroactively. And Davis (Case Two) announces a substantive

rule for the reasons set forth above. Therefore, Davis must apply retroac-

tively to successive habeas petitions. See Teague, 489 U.S. at 307.

Conspicuously failing even to cite Sparks—despite the fact that both

parties and appointed amicus discuss it repeatedly—the majority implies that

the requirements for authorization under § 2255(h)(2) are met only if the Su-

preme Court has expressly held that a rule applies retroactively. As the

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majority puts it, if any “further legal analysis” is required beyond mere ap-

plication of a Supreme Court pronouncement that a rule applies retroac-

tively, then § 2255(h)(2) is not satisfied. Maj. Op. at 11. That erroneous

assertion cannot be squared with Sparks. Under the rule of orderliness, we

are obliged to follow Sparks and, in turn, Justice O’Connor’s concurrence in

Tyler. Those teachings lead to the inescapable conclusion that Davis applies

retroactively to successive habeas petitions.

This determination, moreover, accords with that reached by every

federal court of appeals to have decided Davis’s retroactive application to

successive habeas petitions. See In re Mullins, 942 F.3d 975 (10th Cir. 2019);

In re Matthews, 934 F.3d 296 (3d Cir. 2019); In re Hammoud, 931 F.3d at 1038-

39; In re Franklin, 950 F.3d 909 (6th Cir. 2020) (mem.). The Sixth, Tenth,

and Eleventh Circuits all relied on Tyler’s instruction that the combination

of multiple Supreme Court decisions can dictate retroactivity. See In re

Franklin, 950 F.3d at 910-911; In re Mullins, 942 F.3d at 977-79; In re Ham-

moud, 931 F.3d at 1038-39. As the Sixth Circuit explained:

The Supreme Court’s decision in Welch . . . establishes the ret-

roactivity of Davis. Welch explained that decisions announce a

substantive rule and are thus retroactive when they alter the

range of conduct . . . that the law punishes. That occurred in

Johnson v. United States because it changed the substantive

reach of the Armed Career Criminal Act. So too in Davis,

where the Court narrowed § 924(c)(3) by concluding that its

second clause was unconstitutional.”

In re Franklin, 950 F.3d at 910–11 (cleaned up); see also In re Mullins, 942 F.3d

at 979 (“Because Davis has the same limiting effect on the range of conduct

or class of people punishable under § 924(c) that Johnson has with respect to

the ACCA, Welch dictates that Davis—like Johnson—‘announced a substan-

tive rule that has retroactive effect in cases on collateral review.’” (quoting

Welch, 136 S. Ct. at 1268)). The reasoning of these courts clearly refutes the

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majority’s contention that Davis’s retroactivity is not necessarily dictated by

Welch.

In light of the foregoing, it is unsurprising that the Government agrees

with the analysis that Davis applies retroactively; any other position would

be contrary to logic and binding circuit precedent. Of course, the Govern-

ment’s concession does not bind courts, but it is notable that other circuits

have found such a concession sufficient reason alone to give a rule retroactive

application. See In re Matthews, 934 F.3d at 301 (accepting the Government’s

concession of Davis’s retroactivity as sufficient to conclude for authorization

purposes that the Supreme Court had made the case retroactive); Woods v.

United States, 805 F.3d 1152, 1154 (8th Cir. 2015) (per curiam) (“Based on

the government’s concession [of the retroactivity of Johnson], we conclude

that Woods has made a prima facie showing that his motion contains ‘a new

rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.’” (quoting §

2255(h)(2)).

Based on the reasons above, I conclude that Davis has been “made

retroactive . . . by the Supreme Court.” § 2255(h)(2). I proceed, then, to

determine whether Hall can make “a sufficient showing of possible merit”

that he can benefit from Davis. Reyes-Requena, 243 F.3d at 899.

II.

Hall can receive authorization to file a successive habeas application if

he “‘makes a prima facie showing that [his] application satisfies the require-

ments of’ [28 U.S.C.] § 2244(b).” In re Salazar, 443 F.3d 430, 431 (5th Cir.

2006) (per curiam) (quoting 28 U.S.C. § 2244(b)(3)(c)). Under 28 U.S.C. §

2244(b)(2), Hall must show that his “claim relies on a new rule of constitu-

tional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” In other words, Hall needs to make

a prima facie showing that his claim relies on Davis. See In re Morris, 328 F.3d

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739, 740 (5th Cir. 2003). Though Davis invalidated the residual clause of §

924(c), it left intact its elements clause, see 18 U.S.C. § 924(c)(3)(A). To

benefit from Davis’s rule, then, Hall must make a prima facie showing that

he was convicted under § 924(c)’s residual clause. As explained below, he

meets this minimal standard. See Reyes-Requena, 243 F.3d at 899 (explaining

that a “prima facie showing” is “simply a sufficient showing of possible merit

to warrant a fuller exploration by the district court”).

Under the modified categorical approach, I agree with the majority

that Hall was convicted of kidnapping resulting in death, an offense distinct

from generic kidnapping. See 18 U.S.C. § 1201(a); Maj. Op. at 6. But I depart

from its conclusion that this conviction means that Hall is precluded from

benefiting from Davis. First, § 1201(a), which defines the federal kidnapping

offense, criminalizes conduct that does not have “as an element the use, at-

tempted use, or threatened use of physical force” and thus does not satisfy §

924(c)’s elements clause. § 924(c)(3)(A). See United States v. Walker, 934

F.3d 375, 379 (4th Cir. 2019) (“Accordingly, because . . . 18 U.S.C. § 1201(a)

may be committed without violence, kidnapping clearly does not categori-

cally qualify as a crime of violence under the force [or elements] clause, §

924(c)(3)(A).”); cf. United States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017)

(noting that “[t]he government admit[ted] that kidnapping” under § 1201(a)

“cannot” qualify as a crime of violence under the force clause); Knight v.

United States, 936 F.3d 495, 497 (6th Cir. 2019) (“The government concedes

that under Davis kidnapping in violation of 18 U.S.C. § 1201(a) is not a ‘crime

of violence’ and thus Knight’s conviction under § 924(c) for using a firearm

during and in relation to kidnapping must be vacated.”); BLACK’S LAW DIC-

TIONARY (10th ed. 2014) (defining “inveigle” as “[t]o lure or entice through

deceit or insincerity”). Section 1201(a) kidnapping, then, is not categorically

a COV under § 924(c)’s elements clause.

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Second, the majority incorrectly contends that kidnapping resulting in

death, as distinguished from kidnapping simpliciter, necessarily satisfies the

elements clause. The “death results” portion of § 1201(a) does not contain

a mens rea requirement. § 1201(a); see Burrage v. United States, 571 U.S. 204,

210-14 (2014); United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979) (dis-

cussing the “death results” language of 18 U.S.C. § 242, which criminalizes

deprivations of federal rights under color of law, and stating that “no matter

how you slice it, if death results does not mean if death was intended” (inter-

nal quotation marks omitted)). But “[t]he key phrase in” the elements clause

of 18 U.S.C. § 16(a)—a criminal provision identical in wording to § 924(c)’s

elements clause and which defines a COV to include “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) (alterations in original) (internal quotation

marks omitted). Put another way, the kidnapping resulting in death offense

simply requires but-for causation between the kidnapping and a death, and a

death may result from a kidnapping without force or the threat thereof ever

being applied. It makes sense, then, that this court has never held that kid-

napping resulting in death necessarily involves the use, attempted use, or

threatened use of physical force. In short, it is conceivable that a particular

kidnapping by inveiglement resulting in unintended death might not satisfy

the elements clause of § 924(c) but instead could be found to constitute a

COV under § 924(c)’s residual clause, which the Supreme Court declared

unconstitutionally vague in Davis.

In holding otherwise, the majority leans heavily on the decision of a

divided panel of the Eighth Circuit in United States v. Ross, 969 F.3d 829, 838-

39 (8th Cir. 2020). There, the Eighth Circuit held that kidnapping resulting

in death under § 1201(a) necessarily involves the use of force because the act

of kidnapping involves, at a minimum, reckless disregard for human life and

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when the kidnapping results in a victim’s death, “the perpetrator’s mental

state is sufficient to show that he necessarily ‘used’ force against the victim.”

Ross, 969 F.3d at 839. This faulty reasoning does not withstand close scru-

tiny. As established, § 1201(a) kidnapping, though it may require at least the

mental state of recklessness, does not necessitate the use of force. For the

Eighth Circuit’s and the majority’s conclusion to stand, then, the “death re-

sults” element of a kidnapping resulting in death must require a forceful act.

But the application of force requires “volitional conduct.” Voisine v. United

States, 136 S. Ct. 2272, 2279 (2016) (actor must have the “mental state of

intention, knowledge, or recklessness” to “use force”); see also Leocal, 543

U.S. at 9. By contrast, the death results element under § 1201(a), as the

Eighth Circuit majority acknowledged, has no mens rea requirement. See

Ross, 969 F.3d at 839. In short, the death results element simply requires that

kidnapping constitute a but-for cause of a death, see Burrage, 571 U.S. at 210-

14, and therefore could be satisfied without the use of force.

The dissent in Ross aptly illustrated this point: “Suppose that an indi-

vidual gets in a car with a person impersonating an Uber driver and dies . . .

in a tragic car accident caused by . . . by jumping out after discovering the

driver’s true identity.” See 969 F.3d at 845 (Stras, J., concurring in the judg-

ment and dissenting in part) (internal citations omitted). This scenario

“qualif[ies] as kidnapping by ‘inveiglement’” and “‘results’ in death. And

critically,” it does not “involve[] the use of force.” Id. (internal citation

omitted). Failing to appreciate this logic, the majority here accepts fully the

Eighth Circuit majority’s reply that “[f]orce is necessary to kill the victim

when she slams into the . . . pavement” and that this “application of force is

not an accident” because the perpetrator acts with reckless disregard for the

victim’s safety when he intentionally kidnaps her. Id. That the act of kid-

napping—which, again, does not require force—may involve reckless disre-

gard for another’s safety is no answer to the question of whether force was

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used when a victim dies during or after a kidnapping. Inveiglement clearly is

not per se a “forceful act[], and nowhere does the court identify any other

possible use of force, direct or indirect, by the perpetrator in” the scenario

described. 969 F.3d at 845 n.3 (Stras, J., concurring in the judgment and dis-

senting in part). Thus, the majority’s suggestion that kidnapping resulting in

death under § 1201(a) requires force is error.

Even though it is entirely possible that a kidnapping resulting in death

could be committed without the use of physical force—and thus is not re-

stricted to the elements clause—this is not enough to constitute a prima facie

showing, according to the majority. Instead, it holds—rather extraordinar-

ily—that Hall must show a “realistic probability . . . that the [Government]

would apply [the] statute to [such] conduct.” Maj. Op. at 8. (quoting United

States v. Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc)). The

“realistic probability” test is familiar, but not in the context in which the ma-

jority deploys it. The realistic probability test is a judge-made rule designed

by a badly fractured court of appeals to legalistically but illogically fit more

state offenses into federal generic offense definitions to enhance punish-

ments. See Castillo-Rivera, 853 F.3d at 222. It ill-fits the end for which it was

conceived and has absolutely no place in judging a prima facie showing or a

showing of possible merit to warrant a fuller exploration by the district court

under §2244(b)(3)(C) as incorporated by § 2255’s requirements for second

or successive motions for authorization to apply for a writ of habeas corpus.

In equating the judicially-created realistic probability test with the far less de-

manding, statutorily-mandated prima facie standard—a standard we have

consistently described as requiring merely a “showing of possible merit,” see,

e.g., Reyes-Requena, 243 F.3d at 899—the majority improperly ratchets up the

burden on the movant.

The error in the majority’s importation of the realistic probability

standard into the habeas context is underscored by our limited

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“gatekeeping” role in ruling on motions for authorization. See United States

v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018). If we find that the prima facie

standard for authorization is met, then the petitioner passes through only the

first of two jurisdictional gates. The petitioner must still clear a second gate

by “actually prov[ing] at the district court level that the relief he seeks relies”

on a new rule. Id. (emphasis added). If he cannot, the district court lacks

jurisdiction and “must dismiss the motion without reaching the merits.” Id.

We recently held that to prove reliance on a new rule that invalidates a resid-

ual clause—that is, that a petitioner’s conviction rests on a now-invalid pro-

vision—the prisoner must show by a preponderance of the evidence in the dis-

trict court that he was indeed convicted under the residual clause. See United

States v. Clay, 921 F.3d 550, 558–59 (5th Cir. 2019). Nowhere did we men-

tion that a petitioner must have already shown a realistic probability that his

conviction fell under the residual clause or imply that any showing beyond

the statutorily-required prima facie standard was needed for authorization.

Last, the majority baldly asserts that because Hall was charged with

the capital crime of kidnapping resulting in death, his offense necessarily in-

volved force and therefore is a predicate COV under § 924(c)’s elements

clause. In other words, the majority contends that all death-penalty eligible

offenses under the Federal Death Penalty Act, 18 U.S.C. § 3591, require the

use of force. Notably, the majority cites no precedent whatsoever for this

proposition. And the federal capital punishment statute distinguishes be-

tween “participat[ing] in an act,” § 3591(a)(2)(C), and “engag[ing] in an act

of violence,” § 3591(a)(2)(D) (emphasis added). We previously examined this

language in United States v. Williams, 610 F.3d 271, 284-88 (5th Cir. 2010),

and ruled that an “act of violence”—as expressly distinguished from “an

act”—necessarily requires “physical force.” The reasoning of Williams,

then, indicates that § 3591(a)(2)(C) could well be satisfied without the use of

physical force, strongly undermining the majority’s ipse dixit that all federal

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capital offenses necessarily satisfy § 924(c)’s elements clause. Hall has made

the minimal prima facie showing that his predicate COV satisfies solely the

residual clause, and it should be left for the district court to determine by a

preponderance of the evidence whether in fact his § 924(c) conviction can be

sustained.

***

For these reasons, I would hold that Hall has made a “sufficient show-

ing of possible merit to warrant a fuller exploration by the district court” and

would therefore grant him authorization to file a successive habeas petition.

Reyes-Requena, 243 F.3d at 899. Because the majority errs in denying author-

ization, I respectfully dissent.

28