                                                                              FILED
                                                                  United States Court of Appeals
                                       PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  September 21, 2015

                                                                      Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                        Clerk of Court


In re:

SHAWN J. GIESWEIN,                                         No. 15-6138
                                                  (D.C. Nos. 5:11-CV-00021-F &
               Movant.                                 5:07-CR-00120-F-1)
                                                          (W.D. Okla.)


                                        ORDER


Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.


PER CURIAM.

         Shawn J. Gieswein, a federal prisoner, was convicted of possession of a

firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and witness

tampering. Proceeding pro se, he seeks authorization to file a second or successive

motion under 28 U.S.C. § 2255 challenging his sentence for his firearms conviction.

We deny authorization.

                                            I.

         We may authorize Gieswein’s claim only if it relies on (1) “newly discovered

evidence that, if proven and viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that no reasonable factfinder

would have found the movant guilty of the offense”; or (2) “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. § 2255(h); see also id.

§ 2244(b)(3)(C). Gieswein must make a prima facie showing that he can satisfy the

gate-keeping requirements of § 2255(h). See In re Shines, 696 F.3d 1330, 1332

(10th Cir. 2012) (per curiam). In this context, a prima facie showing requires

Gieswein to make “a sufficient showing of possible merit to warrant a fuller

exploration by the district court.” Case v. Hatch, 731 F.3d 1015, 1028 (10th Cir.),

cert. denied, 134 S. Ct. 269 (2013) (internal quotation marks omitted). “If in light of

the documents submitted with the application it appears reasonably likely that the

application satisfies the stringent requirements for the filing of a second or successive

[motion], we shall grant the application.” Id. (internal quotation marks omitted).

                                           II.

      Gieswein is serving a 240-month sentence on his firearms conviction. He

asserts that sentence was improperly enhanced under the Armed Career Criminal Act,

18 U.S.C. § 924(e) (“ACCA”). The ACCA dictates a minimum fifteen-year sentence

if the offender violates § 922(g) and has “three previous convictions . . . for a violent

felony or a serious drug offense.” Id. Gieswein maintains that, under the Supreme

Court’s recent holding in Johnson v. United States, 135 S. Ct. 2551 (2015), none of

his three prior felony convictions used to enhance his sentence qualifies as a “violent

felony” under the ACCA. He seeks authorization to file a second or successive

§ 2255 motion asserting a claim under Johnson, which he contends announced


                                          -2-
“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. § 2255(h)(2).1

      Under the ACCA,

      the term “violent felony” means any crime punishable by imprisonment
      for a term exceeding one year, or any act of juvenile delinquency
      involving the use or carrying of a firearm, knife, or destructive device
      that would be punishable by imprisonment for such term if committed
      by an adult, that—

             (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.

18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized language is

commonly referred to as the “residual clause.” Johnson, 135 S. Ct. at 2556. In

Johnson, the sentencing court determined that the defendant’s previous conviction for

unlawful possession of a short-barreled shotgun qualified as a violent felony under

the residual clause and enhanced his sentence based, in part, on that conviction.

See id. The Supreme Court ultimately held that enhancing a sentence under the

residual clause violates a defendant’s right to due process because that portion of the

ACCA is unconstitutionally vague. See id. at 2557, 2563. Gieswein asserts that all



1
        Gieswein filed his first § 2255 motion in 2011, and the district court denied
relief. This court denied a certificate of appealability (“COA”) on one claim, granted
a COA on two other claims, then affirmed the denial of relief on those claims.
See United States v. Gieswein, 495 F. App’x 944, 945 (10th Cir. 2012).

                                          -3-
of his three prior convictions qualify as violent felonies only under the ACCA

residual clause.2

                                           A.

      To obtain our authorization to file a second or successive § 2255 motion,

Gieswein must demonstrate that Johnson announced “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. § 2255(h)(2). We first address whether Johnson

announced a new rule of constitutional law, and we conclude that it did.

      “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.” Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013)

(citation, internal quotation marks, and brackets omitted). Johnson held that a

portion of the ACCA violates defendants’ constitutional right to due process,

overruling two prior Supreme Court cases that had concluded otherwise.


2
       The holding in Johnson applies only to the residual-clause definition of
“violent felony,” and “does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”
135 S. Ct. at 2563. Gieswein indicates that his three underlying Oklahoma
convictions were for destruction of property by explosive device, burglary, and lewd
molestation. Although we do not determine the merits of the movant’s claim in
deciding a motion for authorization to file a second or successive § 2255 motion, we
note that the surviving definition of “violent felony” under the ACCA includes a
felony conviction for “burglary” as well as a felony conviction that “involves use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(ii).

                                          -4-
See 135 S. Ct. at 2562-63. The Court thus applied a constitutional principle in a

decision that was contrary to, rather than dictated by, its own precedent. Therefore,

we hold that Johnson announced a new rule of constitutional law. See Price v.

United States, __ F.3d __, 2015 WL 4621024, at *1 (7th Cir. Aug. 4, 2015) (holding

Johnson announced a new rule of constitutional law); In re Rivero, __ F.3d __,

2015 WL 4747749, at *2 (11th Cir. Aug. 12, 2015) (same).

                                           B.

      Gieswein contends that we should authorize his second or successive § 2255

motion because the Supreme Court has made the new rule in Johnson retroactive to

cases on collateral review. Under § 2255(h)(2), “‘the Supreme Court is the only

entity that can “make” a new rule retroactive.’” Cannon v. Mullin, 297 F.3d 989, 993

(10th Cir. 2002) (quoting Tyler v. Cain, 533 U.S. 656, 663 (2001)) (brackets

omitted). And the Supreme Court can only “make a rule retroactively applicable . . .

through a ‘holding’ to that effect.” Id. (quoting Tyler, 533 U.S. at 663).

                                           1.

      The Supreme Court has not explicitly held that the new rule in Johnson is

retroactively applicable to cases on collateral review. Gieswein argues, however, that

the rule in Johnson qualifies for retroactive application in cases on collateral review

under the reasoning in Teague v. Lane, 489 U.S. 288 (1989), and therefore should be

applied retroactively. But “[i]t is clear that the mere fact a new rule might fall within

the general parameters of overarching retroactivity principles established by the


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Supreme Court (i.e., Teague) is not sufficient.” Cannon, 297 F.3d at 993. This is so

because “[t]he Supreme Court does not make a rule retroactive when it merely

establishes principles of retroactivity and leaves the application of those principles to

lower courts.” Id. (internal quotation marks omitted). Thus, in the context of

deciding a motion for authorization, it is not this court’s task to determine whether

(or not) a new rule fits within one of the categories of rules that the Supreme Court

has held apply retroactively. See id. at 994. Our inquiry is statutorily limited to

whether the Supreme Court has made the new rule retroactive to cases on collateral

review.

                                           2.

      Gieswein also contends that the Supreme Court has made the rule in Johnson

retroactive to cases on collateral review in a number of its holdings, read together.

The Court has indeed recognized that “[m]ultiple cases can render a new rule

retroactive”—“with the right combination of holdings”—but “only if the holdings in

those cases necessarily dictate retroactivity of the new rule.” Tyler, 533 U.S. at 666.

Gieswein directs our attention to the Seventh Circuit’s decision in Price, 2015 WL

4621024, at *2-3, which held that a combination of Supreme Court holdings

necessarily dictates the conclusion that the Supreme Court has made the new rule in

Johnson retroactively applicable to cases on collateral review. In so holding, that

court cited Johnson, Teague, Tyler, Schriro v. Summerlin, 542 U.S. 348 (2004), and

several other Supreme Court decisions. See id.


                                          -6-
      We respectfully disagree that the Supreme Court’s holdings in these cases

necessarily dictate retroactivity of the new rule in Johnson. As Justice O’Connor

posited in her Tyler concurrence,

      [I]f [the Supreme Court] hold[s] in Case One that a particular type of
      rule applies retroactively to cases on collateral review and hold[s] 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 collateral
      review. In such circumstances, [the Court] can be said to have ‘made’
      the given rule retroactive to cases on collateral review.

Tyler, 533 U.S. at 668-69 (O’Connor, J., concurring); see also Cannon, 297 F.3d

at 993 n.3 (quoting this portion of Justice O’Connor’s concurrence). Here there is no

“Case Two.” The Supreme Court has not held that the rule announced in Johnson is

of a particular type that the Court previously held applies retroactively. And the

Supreme Court—not this court—must make that determination. See Cannon

297 F.3d at 993-94.

      As we stated in Cannon, “The Court’s recognition in Tyler of the possibility

that multiple cases can render a new rule retroactive does not . . . give this court

license to grant permission to file a second [§ 2255 motion] premised on our own

determination that a new rule fits within [a] Teague exception.” Id. at 994. In the

limited time we are statutorily permitted to consider and decide motions for

authorization, we do not “engage in the difficult legal analysis that can be required to

determine questions of retroactivity in the first instance.” Id. (internal quotation

marks omitted). Rather, we look for Supreme Court holdings that, “by strict logical

necessity,” dictate that the Supreme Court, itself, has made a new rule retroactive on

                                          -7-
collateral review. Id. (internal quotation marks omitted). There is no such

combination of Supreme Court holdings necessarily dictating retroactive application

of the new rule announced in Johnson.

                                             C.

          We acknowledge that the Seventh Circuit reached a different conclusion in

Price. It pointed to the Supreme Court’s statement in Summerlin that “‘[n]ew

substantive rules generally apply retroactively . . . because they necessarily carry a

significant risk that a defendant stands convicted of an act that the law does not make

criminal or faces a punishment that the law cannot impose upon him.’” 2015 WL

4621024, at *2 (quoting Summerlin, 542 U.S. at 351-52) (internal quotation marks

omitted). Price also noted Summerlin’s holding that new substantive rules include

“‘constitutional determinations that place particular conduct or persons covered by

the statute beyond the State’s power to punish.’” Id. (quoting Summerlin, 542 U.S. at

352). And Price pointed to Justice O’Connor’s concurrence in Tyler, in which she

stated:

                 It is relatively easy to demonstrate the required logical
          relationship with respect to the first exception articulated in Teague.
          Under this exception, 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. When the
          Court holds as a new rule in a subsequent case 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.



                                            -8-
Tyler, 533 U.S. at 669 (O’Connor, J., concurring) (citations and internal quotation

marks omitted); see Price, 2015 WL 4621024, at *2.

         Applying these retroactivity principles to the new rule in Johnson, Price first

held that Johnson announced a new substantive rule of constitutional law.

See 2015 WL 4621024, at *3. It further held that pursuant to this new rule “[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.’” (quoting

Summerlin, 542 U.S. at 352). On the basis of these two predicate holdings—neither

of which had been made by the Supreme Court—the Seventh Circuit then held that

“[t]here is no escaping the logical conclusion that the Court itself has made Johnson

categorically retroactive to cases on collateral review.” Price, 2015 WL 4621024,

at *3.

         We decline to adopt the Seventh Circuit’s approach in Price, under which that

court applied the Supreme Court’s retroactivity principles to determine, for itself in

the first instance, whether the rule in Johnson is of a type that the Supreme Court has

held applies retroactively. Our sister circuit did what we have said we cannot do: it

made its “own determination that a new rule fits within [a] Teague exception [to

non-retroactivity].” Cannon, 297 F.3d at 994.

         The Eleventh Circuit followed a similar path in Rivero. It concluded,

however, that “[n]o combination of holdings of the Supreme Court necessarily dictate

that Johnson should be applied retroactively on collateral review.” 2015 WL


                                            -9-
4747749, at *2 (internal quotation marks omitted). Rivero began by noting that the

Supreme Court did not expressly state in Johnson that its holding applies

retroactively, nor has the Court applied the Johnson holding on collateral review in a

later case. See id. But the Eleventh Circuit then proceeded to conclude that “the rule

announced in Johnson does not meet the criteria the Supreme Court uses to determine

whether the retroactivity exception for new substantive rules applies.” Id. Rivero

reasoned—contrary to the holding in Price—that although Johnson announced a new

substantive rule of constitutional law, it did not “suggest[] that ‘certain kinds of

primary, private individual conduct are beyond the power of Congress to proscribe.’”

Id. (quoting Teague, 489 U.S. at 311 (plurality opinion)) (brackets omitted).

      Our sister circuits’ holdings in Price and Rivero illustrate the difficulty with

their approach to determining whether the Supreme Court has made a new rule of

constitutional law retroactive to cases on collateral review. Both courts applied the

Supreme Court’s retroactivity principles, yet they reached opposite conclusions. This

is unsurprising, as the Supreme Court has recognized “the difficult legal analysis that

can be required to determine questions of retroactivity in the first instance.” Tyler,

533 U.S. at 664. And that is why the Court has said we need not (and should not)

“do more than simply rely on Supreme Court holdings on retroactivity.” Id.

                                           III.

      The Supreme Court has not held in one case, or in a combination of holdings

that dictate the conclusion, that the new rule of constitutional law announced in


                                          - 10 -
Johnson is retroactive to cases on collateral review. Therefore, Gieswein’s motion

does not “satisf[y] the stringent requirements for the filing of a second or successive

[motion].” Case, 731 F.3d at 1028 (internal quotation marks omitted). Accordingly,

we deny Gieswein’s motion for authorization to file a second or successive

§ 2255 motion. This denial of authorization “shall not be appealable and shall not be

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

§ 2244(b)(3)(E). Gieswein’s Motion for Resentencing is denied.




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