                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 16a0177p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 In re: ALFORD D. EMBRY,                                  ┐
                                              Movant.     │
                                                           >      No. 16-5447
                                                          │
                                                          ┘

                       On Motion to Authorize the Filing of a Second or
                       Successive Application for Habeas Corpus Relief.
                      No. 1:01-cv-00227—Curtis L. Collier, District Judge.

                                Decided and Filed: July 29, 2016

                   Before: KEITH, ROGERS, and SUTTON, Circuit Judges.
                                   _________________

                                           COUNSEL

ON RESPONSE: Debra A. Breneman, UNITED STATES ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Respondent. ON REPLY: Erin P. Rust, FEDERAL DEFENDER SERVICES,
Chattanooga, Tennessee, for Movant. ON MOTION: Alford D. Embry, Jr., Welch, West
Virginia, pro se.
                                       _________________

                                            OPINION
                                       _________________

       SUTTON, Circuit Judge. Alford Embry seeks leave to file a successive motion to vacate
or lower his sentence. See 28 U.S.C. § 2255. Invoking Johnson v. United States, 135 S. Ct.
2551 (2015), which voided for vagueness the residual clause of a sentencing statute (the Armed
Career Criminal Act), he claims a right to relief because the district court treated him as a career
offender under an identically worded clause of the Sentencing Guidelines (U.S.S.G.
§ 4B1.2(a)(2)). In one sense, there is something to be said for his request. For United States v.
Pawlak, 822 F.3d 902 (6th Cir. 2016), extended Johnson to invalidate the Sentencing
Guidelines’ residual clause. But in another sense, there are some things that cut against his




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No. 16-5447                             In re Embry                                       Page 2


request. For the right to bring a successive § 2255 motion does not turn on circuit authority
alone. To bring a successive § 2255 motion (or for that matter a successive § 2254 habeas
petition), an inmate must rely on a “new rule” “made retroactive to cases on collateral review by
the Supreme Court.”       28 U.S.C. § 2255(h)(2).     The Supreme Court, however, has not yet
determined whether Johnson also dooms the Guidelines’ residual clause, and there are
respectable constitutional arguments that the vagueness doctrine does not apply to the advisory
Guidelines. The Supreme Court has agreed to resolve the point next Term in Beckles v. United
States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016) (Mem.). In the interim, it is not
clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive
or as a rule dictated by Johnson that the Supreme Court has made retroactive.

       Now is not the time to decide that question, and this is not the venue for resolving it.
Embry need only make a “prima facie” showing of an entitlement to relief, 28 U.S.C.
§ 2244(b)(3)(C), and the district court is free to decide for itself whether Embry’s claim relies on
a new rule made retroactive by the Supreme Court, see 28 U.S.C. § 2244(b)(4). The outcome of
Beckles, one hopes, will make all of this a lot easier. We therefore grant the motion and transfer
the case to the district court, to be held in abeyance pending the Supreme Court’s decision in
Beckles v. United States.

       In 2000, Embry pled guilty to three counts of bank robbery, three counts of being a felon
in possession of a firearm, and a single count of using a firearm in relation to a crime of violence.
See 18 U.S.C. §§ 2113(a), 922(g), 924(c).         In calculating his sentencing range under the
Guidelines, the court treated him as a career offender based on prior convictions for robbery and
wanton endangerment, and increased his advisory sentencing range (and eventually his actual
sentence) accordingly. See U.S.S.G. § 4B1.1. In 2016, he filed this motion to vacate his
sentence, which the district court transferred to this court for permission (or not) to proceed.
28 U.S.C. § 2244(b)(3).

       The court of appeals may authorize a successive motion to vacate a sentence or
conviction if the inmate “makes a prima facie showing” that his proposed claim relies on “a new
rule of constitutional 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). In Johnson, the
No. 16-5447                             In re Embry                                     Page 3


Supreme Court announced a new rule of constitutional law that the Court eventually made
retroactive to cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268
(2016).

          In Pawlak, our court held that the Guidelines’ residual clause is also unconstitutionally
vague. 822 F.3d at 911. At stake is whether Pawlak applied the “new rule” announced in
Johnson or recognized a “new rule” of its own. If Pawlak merely applied the Johnson rule,
Embry has shown that his claim relies on a new rule that the Supreme Court has made retroactive
on collateral review. But if the Pawlak rule is distinct from the Johnson rule, Embry has a
problem because the Supreme Court has not yet recognized this rule or made it retroactive.

          What, then, is a “new rule”? 28 U.S.C. § 2255(h)(2). One that is “not dictated by
precedent,” says Teague v. Lane, 489 U.S. 288, 301 (1989). A rule is not dictated by precedent,
another case says, unless it is “apparent to all reasonable jurists.” Chaidez v. United States,
133 S. Ct. 1103, 1107 (2013) (quotation omitted). Our decision in Pawlak thus amounts to a
“new rule” unless “all reasonable jurists” would adopt the rule based on existing precedent.
At the same time, we are mindful 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.”
Id. (quotation omitted).

          The inquiry is not an easy one. The Fifth and Eighth Circuits have concluded that
Johnson does not dictate the invalidation of the Guidelines’ residual clause, and have denied
motions like Embry’s. In re Arnick, No. 16-10328, 2016 WL 3383487, at *1 (5th Cir. June 17,
2016) (per curiam); Donnell v. United States, No. 15-2581, 2016 WL 3383831, at *2 (8th Cir.
June 20, 2016). The Second, Fourth, and Tenth Circuits have gone the other way. Blow v.
United States, No. 16-1530, 2016 WL 3769712, at *2 (2d Cir. July 14, 2016) (per curiam); In re
Hubbard, No. 15-276, 2016 WL 3181417, at *6–7 (4th Cir. June 8, 2016); In re Encinias,
821 F.3d 1224, 1226 (10th Cir. 2016) (per curiam). Making matters more complicated, the
Eleventh Circuit disagrees with Pawlak across the board, and has held that the vagueness
doctrine does not apply to the Guidelines, which create recommended sentencing ranges, not
required sentencing ranges. United States v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015).
No. 16-5447                             In re Embry                                       Page 4


       When it comes to deciding whether Embry has made a prima facie showing of a right to
relief, there are two sides to this debate, each with something to recommend it.

       On the one hand: there is much to support the idea that Pawlak is a new rule. What was
true in Johnson for the residual clause of the Armed Career Criminal Act was not obviously true
in Pawlak for the residual clause of the Sentencing Guidelines. Before a court could invoke
Johnson to invalidate the residual clause of the Guidelines, it would have to resolve a threshold
question: Do the due process concerns about notice and arbitrary enforcement that undergird the
prohibition on vague criminal statutes, see Johnson, 135 S. Ct. at 2556–57, apply to the advisory
Sentencing Guidelines?

       The answer to this gateway question is not self-evident. Yes, many of the courts that
have confronted the issue, including ours in Pawlak, have permitted vagueness challenges to the
Guidelines’ residual clause in the wake of Johnson, often (it bears noting) because the
government has conceded the point. See Pawlak, 822 F.3d at 907; United States v. Madrid,
805 F.3d 1204, 1211 (10th Cir. 2015) (permitting a vagueness challenge to the Guidelines);
United States v. Townsend, 638 F. App’x 172, 177–78 & n.14 (3d Cir. 2015) (accepting the
government’s concession); United States v. Welch, No. 12-4402, 2016 WL 536656, at *4 (2d Cir.
Feb. 11, 2016) (per curiam) (same). But respected courts and jurists disagree. See Matchett,
802 F.3d at 1193–96 (holding that advisory guidelines are not susceptible to vagueness
challenges); cf. United States v. Taylor, 803 F.3d 931, 933–35 (8th Cir. 2015) (Colloton, J.,
dissenting) (arguing the same); United States v. Lee, 821 F.3d 1124, 1133–35 (9th Cir.
2016) (Ikuta, J., dissenting) (same).

       In rejecting a vagueness challenge to the Guidelines’ residual clause, the Eleventh Circuit
held that “[b]ecause there is no constitutional right to . . . a less discretionary application of
sentences than that permitted prior to the Guidelines . . . the limitations the Guidelines place on a
judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.”
Matchett, 802 F.3d at 1194–95 (quotation omitted). The Seventh Circuit said something similar
in reaching the same conclusion prior to Johnson: “The vagueness doctrine is concerned with
providing fair notice and preventing arbitrary enforcement. Since the Guidelines are merely
advisory, defendants cannot rely on them to communicate the sentence that the district court will
No. 16-5447                            In re Embry                                      Page 5


impose.” United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012). A distinction between
the application of the vagueness doctrine to mandatory sentencing increases and to advisory
sentencing increases is a reasonable one, as confirmed by the many jurists who have adopted it.
Among those many jurists, we should add, are three judges from our own court, reasonable all,
who embraced that same distinction before Pawlak. See United States v. Smith, 73 F.3d 1414,
1417–18 (6th Cir. 1996).

       The Pawlak court, it is true, reasoned that Peugh v. United States, 133 S. Ct. 2072 (2013),
undermined this distinction because it held that the Ex Post Facto Clause prevented a court from
applying a Guidelines amendment that increased the sentencing range for bank fraud to a
defendant whose alleged crime took place before the amendment was enacted. Pawlak, 822 F.3d
at 905–07.    The court read Peugh to “reflect[] the [Supreme] Court’s judgment that the
Guidelines are subject to constitutional challenges because the Guidelines are the mandatory
starting point for sentencing determinations,” and found that there was no longer any basis for
immunizing the Guidelines from vagueness challenges. Id. at 906–07.

       Reasonable though Pawlak may be and binding in this circuit as it is, that does not mean
Johnson and Peugh dictated it. The Eleventh Circuit read Peugh more narrowly, and reasoned
that, while the Ex Post Facto Clause applies to the Guidelines because they “present[] a sufficient
risk of increasing the measure of punishment attached to the covered crimes,” Peugh, 133 S. Ct.
at 2082 (quotation omitted), that does not establish that the due process concerns about notice
apply with equal force to advisory guidelines. Matchett, 802 F.3d at 1193–96. For good
measure, the Eleventh Circuit cited a Supreme Court decision of its own, Irizarry v. United
States, 553 U.S. 708 (2008), which it read to bar all due process challenges to the Guidelines.
Matchett, 802 F.3d at 1194. The Pawlak court, for its part, read Irizarry more narrowly.
822 F.3d at 909–10. No matter which reading of Peugh and Irizarry is best, ours is not the only
defensible one.

       One other consideration supports the idea that Pawlak turns on a new rule that the
Supreme Court has not yet made retroactive. Under AEDPA’s statute of limitations, a claimant
must file a motion within one year of “the date on which the right asserted was initially
recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3). If we are not careful about how we
No. 16-5447                             In re Embry                                       Page 6


construe new rules under § 2255(h)(2), we run the risk of permitting successive motions that are
barred under the statute of limitations in § 2255(f)(3). It helps no one, as the Eighth Circuit
pointed out, if we “authorize the filing of successive motions that are routinely barred by the
statute of limitations.” Donnell, 2016 WL 3383831, at *2. Consider this case. If we construe
the Johnson rule broadly and treat Pawlak as a dictated application of it, then the statute of
limitations for bringing claims based on Johnson expired on June 26, 2016, one year after
Johnson. That’s because § 2255’s statute of limitations runs from the date of the decision
recognizing the right asserted. Dodd v. United States, 545 U.S. 353, 357, 359 (2005) (noting that
the one-year limitations period applies to initial and second or successive motions brought under
§ 2255). And that would mean no more successive motions could be brought on Johnson-related
claims after that date.

        How strange. The Supreme Court has not yet decided whether our decision in Pawlak is
correct. That will happen next Term in Beckles v. United States, when the Court will decide
whether the Guidelines’ residual clause is unconstitutionally vague, and, if so, whether that
holding applies retroactively. If Embry’s petition rests on the Johnson rule, it is possible that the
Court’s potential invalidation of the residual clause would come too late in our court. Prisoners
unaware of the possibility of challenging their Guidelines sentences until after the Supreme
Court invalidated the residual clause would be out of luck, at least if the Supreme Court did not
also make clear in Beckles that it was announcing a new constitutional rule, distinct from
Johnson.

        If pressed to decide the question now, we would lean in favor of saying that Pawlak is
more than the sum of its parts: It breaks new ground by holding that the advisory Guidelines are
susceptible to vagueness challenges. As such, it rests on a new rule of constitutional law that the
Supreme Court has not recognized, much less made retroactive on collateral review.

        On the other hand: there are several reasons to hold off on making that decision now,
and they ultimately carry the day. The standard of review for granting a motion to authorize a
successive petition is not a stiff one. Embry needs only to make a “prima facie showing” that his
claim relies on a new rule of constitutional law made retroactive to cases on collateral review by
the Supreme Court. 28 U.S.C. § 2244(b)(3)(C). That is “not a difficult standard to meet.” In re
No. 16-5447                             In re Embry                                      Page 7


Lott, 366 F.3d 431, 432 (6th Cir. 2004). And there is a fair-minded argument that Johnson
requires the invalidation of the Guidelines’ residual clause.

       Not only is the standard for assessing Embry’s motion light, but the setting for reviewing
it counsels against making more law than necessary. A denial of a motion to authorize a
successive petition is unreviewable—not by the en banc court, not by the Supreme Court.
28 U.S.C. § 2244(b)(3)(E). By granting such a motion, even many such motions (roughly
1700 Johnson motions have been filed in our circuit), we decide nothing with finality. The
habeas statute permits the district court to determine for itself whether the petitioner has met the
gatekeeping requirements of § 2255(h). See 28 U.S.C. § 2244(b)(4). Congress has also asked us
to make these decisions quickly, ideally within 30 days of a motion’s filing and often with little
if any briefing. 28 U.S.C. § 2244(b)(3)(D); see In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997).
All features of this setting considered, it makes sense to leave the district court free to decide
whether the holding in Pawlak is a new rule or not.

       By holding off on deciding whether Pawlak announces a new rule, we also leave open
whether AEDPA’s time bar applies to successive petitions filed after June 26, 2016. Because we
do not usually enforce statutes of limitations when we consider motions to authorize a successive
petition, see In re McDonald, 514 F.3d 539, 543 (6th Cir. 2008), it is likely that we will treat
post-June 26 motions the same way we have been treating pre-June 26 motions: granting the
motions and transferring the cases to the district courts.

       The Supreme Court’s recent decision to review Beckles also supports this approach.
Before long, we should have answers to the pertinent questions: Does the vagueness doctrine
apply to the advisory Sentencing Guidelines? If so, is that a new rule or one dictated by
Johnson, and does the decision apply retroactively? Through it all, does the Court’s decision
resolve, or help to resolve, the lurking statute of limitations question? With so much in play, the
most important question may be a practical one: Where to set the queue for all of the “Johnson”
motions that target sentences affected by the residual clause of the Sentencing Guidelines,
U.S.S.G. § 4B1.2(a)(2)? In the court of appeals? In the district courts? Or in the offices of
public defenders and the defense lawyers by rejecting the motions now? All things considered, it
makes the most sense to grant the gatekeeping motions, send the cases to the district courts, and
No. 16-5447                             In re Embry                                         Page 8


ask the district courts to hold the cases in abeyance pending the Supreme Court’s decision in
Beckles. After the Supreme Court resolves some or (hope springs eternal) all of these questions,
the district courts will be well positioned to handle these cases fairly and efficiently.

       For these reasons, the motion is granted, and the case is transferred to the district court to
be held in abeyance pending the Supreme Court’s decision in Beckles v. United States.
