    Case: 16-50521     Document: 00513552854     Page: 1   Date Filed: 06/17/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit


                                  No. 16-50521
                                                                   FILED
                                                                June 17, 2016
                                                                Lyle W. Cayce
In re: SHERMAN LAMONT FIELDS,                                        Clerk

            Movant




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


Before JONES, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Sherman Fields, a federal death row prisoner, moves for authorization
to file a successive 28 U.S.C § 2255 motion. He may file a successive motion if
he makes a prima facie showing that his motion “contain[s]” either “newly
discovered evidence that . . . would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty,” or “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897–98 (5th Cir.
2001).
      Fields was convicted on seven counts, including three under 18 U.S.C.
§ 924(c), one of which carried the death penalty. Section 924(c)(3)(B) states:
      (3) For purposes of this subsection the term “crime of violence” means an
      offense that is a felony and
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                                  No. 16-50521
      ....
      (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.

18 U.S.C. § 924(c)(3)(B). In Johnson v. United States, 135 S. Ct. 2551, 2555–
57, 2563 (2015), the Supreme Court held that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague.
Fields seeks application of Johnson to the differently worded “crime of
violence” definition quoted above.
      Johnson announced a new rule of constitutional law that has been made
retroactive by the Supreme Court to cases on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264–65 (2016). However, Johnson did not address
section 924(c)(3)(B). Moreover, courts of appeals are split on whether to grant
permission to file a successive 2255 petition based on the argument that
Johnson applies to section 924(c)(3)(B).    Compare Berry v. United States,
No. 16-71332 (9th Cir. June 2, 2016) (per curiam) (granting permission to file
a successive motion); In re Pinder, No. 16-12084, 2016 WL 3081954, at *2 (11th
Cir. June 1, 2016) (per curiam) (same); In re Chapman, No. 16-246 (4th Cir.
May 3, 2016) (per curiam) (same); Ruiz v. United States, No. 16-1193 (7th Cir.
Feb. 19, 2016) (per curiam) (same); Freeman v. United States, No. 15-3687 (2d
Cir. Jan. 26, 2016) (per curiam) (same), with Turner v. United States, No. 16-
1145 (1st Cir. May 4, 2016) (per curiam) (denying permission to file a
successive   motion).      This   disagreement   among     lower   court   judges
demonstrates that the Supreme Court has not taken a position on whether
Johnson applies to section 924(c)(3)(B). Further, even if Johnson does apply to
that provision, the Supreme Court has not addressed whether this arguably
new rule of criminal procedure applies retroactively to cases on collateral



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                               No. 16-50521
review.   Fields has therefore not demonstrated that he is entitled to
authorization to proceed based on Johnson.
     IT IS ORDERED that Fields’s motion for authorization is DENIED.




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