    Case: 15-30731    Document: 00513268170     Page: 1   Date Filed: 11/12/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                 No. 15-30731                       FILED
                                                            November 12, 2015

In re: ANTHONY ALLEN WILLIAMS,
                                                               Lyle W. Cayce
                                                                    Clerk

                                           Movant



                      Motion for an order authorizing
                  the United States District Court for the
            Western District of Louisiana, Shreveport to consider
                   a successive 28 U.S.C. § 2255 motion


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Two distinct but kindred doctrines, each a marker of judicial role, show
their force in this case – vagueness, and judicial control of the backward reach
of judicial opinions. While the former is drawn from due process, both are
shadowed by their never-ending struggle with the nuances of Article III and
separation of powers. Deploying the vagueness doctrine, the Court excised an
element of a sentencing statute, leaving uncertain the class of persons injured
by its presence and entitled to relief – here petitioners for habeas relief whose
conviction and sentence are sound by the law in place when they exhausted
their appeals. The Supreme Court’s struggle with habeas relief for path-
breaking decisions impacting criminal prosecutions includes a full retreat from
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claimed authority to make its decisions prospective only, turning to limiting
habeas petitioners to the law in place when they exhausted direct appeals, a
turn reinforced by Congress. 1
                                             I.
       Movant Anthony Williams drew a fifteen year sentence under the Armed
Career Criminal Act (ACCA),18 U.S.C. §924(e), as a felon in possession of a
firearm with three predicate violent felonies – two Texas convictions for
delivery of a controlled substance and one 1985 Texas conviction for robbery.
The ACCA defines a “violent felony” as an offense punishable by imprisonment
for more than one year which “(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (ii) is
burglary, arson or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 2
       The Supreme Court in Johnson v. United States found the “residual
clause” of the ACCA to be unconstitutionally vague. 3 Williams now seeks leave
to file a successive writ under 28 U.S.C. § 2255 to challenge his sentence,
arguing that one of his predicate offenses – the robbery – fell under the residual
clause, and that his ACCA sentence is therefore invalid after Johnson.
                                            II.
       Under 28 U.S.C. § 2255(h)(2) and 28 U.S.C. § 2244(b)(2), an applicant for
authorization to file a successive writ must show that “the claim relies on a



       1 Teague v. Lane, 489 U.S. 288 (1989); 28 U.S.C. § 2255(h)(2); 28 U.S.C. § 2244(b)(2);
Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and
Law, 79 HARV. L. REV. 56 (1965).
       2 18 U.S.C. § 924(e)(2)(B) (emphasis added).
       3 135 S. Ct. 2551 (2015).

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new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” Williams’s first
habeas petition was filed and denied before the Johnson decision. To obtain
permission to file a second or “successive” petition, he must make a “prima
facie showing” that his application relies on a new rule of constitutional law
retroactively applicable. 4 A “prima facie showing” is “simply a sufficient
showing of possible merit to warrant a fuller exploration by the district court.” 5
                                             III.
                                              A.
       Williams’s first hurdle, one he easily clears, is whether Johnson
established a new rule of constitutional law. 6 “A case announces a new
rule . . . when it 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.” 7 In holding the residual clause of the ACCA unconstitutionally
vague, Johnson did not follow precedent. Rather, the Court overruled two of




       4 28 U.S.C. § 2244 (b)(3)(C); see also In Re Simpson, 555 F. App’x 369 (5th Cir. 2014)
(describing prima facie standard).
       5 Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir. 2001) (holding that

prima facie standard is incorporated into § 2255).
       6 Four of our sister circuits have recently addressed Johnson’s retroactivity, and all

agreed that it is a new rule of constitutional law. Price v. United States, 795 F.3d 731, 732
(7th Cir. 2015); In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015); In re Gieswein, No. 15-6138,
2015 WL 5534388 at *2 (10th Cir. Sept. 21, 2015); Pakala v. United States, No. 15-1799, 2015
WL 6158150, at *1 (1st Cir. Oct. 20, 2015).
       7 Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (citation, internal quotation

marks, and brackets omitted).
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its earlier cases. 8 Joining the four other circuits that have decided this issue,
we hold that Johnson announced a new rule of constitutional law.
                                            B.
      The next hurdle is whether the new rule in Johnson applies
retroactively. To overcome the general bar to retroactivity of new rules on
collateral review, Williams must meet one of two narrow exceptions to Teague
v. Lane. 9 The first is “a small set of watershed rules of criminal procedure
implicating the fundamental fairness and accuracy of the criminal
proceeding.” 10 This exception is limited in scope, 11 applying only to those cases
“implicating the fundamental fairness and accuracy of the criminal
proceeding” or “implicit in the concept of ordered liberty.” 12 In providing
guidance as to what might fall within this exception, the Court has “repeatedly
referred to the rule of Gideon v. Wainwright,” as the paradigmatic example of
a watershed rule. 13 Johnson plainly is not such a watershed rule and no one
seriously argues otherwise.
      To be available to Williams, then, Johnson must fall within the second
exception to Teague – as a “[n]ew substantive rule[].” 14 Under this exception,
substantive rules “should be understood to cover not only rules forbidding
criminal punishment of certain primary conduct but also rules prohibiting a
certain category of punishment for a class of defendants because of their status


      8 See 135 S. Ct. at 2562–63.
      9 489 U.S. 288 (1989).
      10 Schriro v. Summerlin, 542 U.S. 348, 351.
      11 Beard v. Banks, 542 U.S. 406, 417 (2004).
      12 Id.; Teague, 489 U.S. at 307 (quotation omitted).
      13 Banks, 542 U.S. at 417.
      14 Id.

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or offense.” 15 Of course, Johnson does not forbid the criminalization of any of
the conduct covered by the ACCA – Congress retains the power to increase
punishments by prior felonious conduct. It signifies that Johnson took down
the residual clause of the ACCA on vagueness grounds, a denial of due process,
which is no way forbids the regulatory objective – only insisting upon sufficient
clarity as to give fair notice of how it is to be achieved.
       More to the point, though, is that Johnson also does not forbid a certain
category of punishment. As Justice Scalia explained in Schriro v. Summerlin,
substantive rules apply retroactively “because they necessarily carry a
significant risk that a defendant . . . faces a punishment that the law cannot
impose upon him. 16 Rules that “deprive[] the State of the power to impose a
certain penalty” are retroactive, 17 but rules that merely alter the sentencing
structure under which a penalty is imposed are not. 18 After Johnson,
defendants similar to Williams may, within the bounds of the constitution, face
a fifteen year sentence – Congress is not “deprived” 19 of that power. Johnson
merely mandates that Congress require such punishment with greater
clarity – fair notice to persons it engages. Therefore, Johnson is not available
to Williams on collateral review.




       15 Penry v. Lynaugh, 492 U.S. 302(1989), overruled on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002).
       16 542 U.S. at 351-52 (internal citations omitted).
       17 Penry, 492 U.S. at 330.
       18 See Saffle v. Parks, 494 U.S. 484 (1990) (A rule requiring that a jury be permitted

to considering mitigating evidence did not “prohibit the imposition of capital punishment on
a particular class of persons” and could not be applied in a case on collateral review.).
       19 Penry, 492 U.S. at 330.

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                                             IV.
       In so deciding, we disagree with recent decisions in two of our sister
Circuits. In Price v. United States, 20 the Seventh Circuit concluded that Price
had made a prima facie showing for the collateral reach of Johnson, granting
him leave to file a successive writ. 21 The court argued that, as a result of
Johnson, “[a] defendant who was sentenced under the residual clause
necessarily bears a significant risk of facing a punishment that the law cannot
impose upon him.” 22 But Congress could impose the exact punishment in
Johnson if Congress did so with specific, not vague, language. Most recently,
the First Circuit granted a similarly situated prisoner leave to file a successive
writ under § 2255 in a brief opinion applying the prima facie standard. 23
       Our decision and reasoning here align with the majority in the recent
Eleventh Circuit decision, In re Rivero. 24 Especially, we diverge from the
argument, made in dissent, that Bousley v. United States indicates that
Congress’s hypothetical power to criminalize certain conduct is irrelevant to
Teague analysis. 25 In Bousley, the Court determined that an earlier decision,
Bailey v. United States, 26 interpreting the word “use” in a criminal statute, was
available on collateral review, despite the fact that Congress later amended


       20 795 F.3d 731.
       21 Id.
       22 Id. at 734.
       23 Pakala v. United States, No. 15-1799, 2015 WL 6158150 (1st Cir. 2015).
       24 797 F.3d 986, 989 (11th Cir. 2015). The Tenth Circuit also recently denied a

successive writ under Johnson, although our colleagues there would await Supreme Court
holdings that “by strict logical necessity, dictate that the Supreme Court, itself, has made a
new rule retroactive on collateral review.” In re Gieswein, No. 15-6138, 2015 WL 5534388
(10th Cir. 2015) at *3 (internal citations omitted).
       25 797 F.3d at 1000.
       26 516 U.S. 137.

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the statute to criminalize exactly the conduct at issue in the case. But Bousley
was decided completely outside of the Teague framework, and it does not apply
to Johnson. Chief Justice Rehnquist determined that Teague did not govern in
Bousley because Teague “is inapplicable to the situation in which this Court
decides the meaning of a criminal statute enacted by Congress.” 27 But unlike
Bailey, Johnson did not interpret the ACCA in service of Congressional intent
– it excised as unconstitutional an entire provision of duly enacted law. Nor
did it merely “explain what [the statute] has meant even since [it] was
enacted,” as Justice Stevens explained in his partial concurrence in Bousley, 28
facilitating a remand for a showing of actual innocence. Rather, Johnson
actually overruled two of the Court’s earlier cases, 29 clearly differentiating it
from Bailey, and making a “new rule,” firmly within the Teague framework.
                                             V.
      It is true that Williams need only demonstrate a “sufficient showing of
possible merit to warrant a fuller exploration by the district court” to obtain
leave to pursue his successive writ. 30 But, the prima facie standard requires at
the least a sufficient showing that Johnson is available to him on collateral
review. Since we have concluded that it is not, his motion for authorization to
file a successive 28 U.S.C. § 2255 petition is DENIED.




      27Bousley  v. United States, 523 U.S. 614, 620 (1998).
      28 Id. at 625.
      29 See 135 S. Ct. at 2562–63.
      30 Reyes-Requena, 243 F.3d at 897-99.

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