     Case: 19-10760      Document: 00515371792         Page: 1    Date Filed: 04/03/2020




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

                                                                                FILED
                                      No. 19-10760                           April 3, 2020
                                                                           Lyle W. Cayce
Consolidated with 17-11376                                                      Clerk


UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

JIMMY DIXON,

              Defendant - Appellant

***********************************************************************

In re: JIMMY LEE DIXON,

              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 Petition


Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      Pro se prisoner Jimmy Lee Dixon moves this court for permission to file
a successive habeas petition pursuant to 28 U.S.C. § 2255, arguing that his
conviction for using a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(c) is unconstitutional under United States v. Davis,
139 S. Ct. 2319 (2019). We grant the motion.
      A prisoner seeking to file a second or successive Section 2255 petition
must obtain authorization from this court to do so. 18 U.S.C. § 2244(b)(3)(A).
To obtain such authorization, Dixon must make a prima facie showing that his
underlying 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. § 2255(h); 28 U.S.C. § 2244(b)(3)(C).       We have
described a prima facie showing as “simply a sufficient showing of possible
merit to warrant a fuller exploration by the district court.” Reyes-Requena v.
United States, 243 F.3d 893, 899 (5th Cir. 2001) (quoting Bennett v. United
States, 119 F.3d 468, 469 (7th Cir. 1997)).     “[I]f in light of the documents
submitted with the application it appears reasonably likely that the
application satisfies the stringent requirement for the filing of a second or
successive petition, we shall grant the application.” In re Morris, 328 F.3d 739,
740 (5th Cir. 2003) (quoting Bennett, 119 F.3d at 469–70).
      Dixon argues his Section 924(c) conviction should be vacated because,
under Davis, his predicate federal kidnapping conviction no longer qualifies as
a crime of violence. Section 924(c) defines a crime of violence in two alternative
ways. An offense qualifies if it is a felony and (1) “has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another” (the elements clause); or (2) “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” (the residual clause).
18 U.S.C. § 924(c)(3). Davis held that the residual clause is unconstitutionally
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                                       No. 19-10760
vague, 139 S. Ct. at 2336, but the elements clause remains intact.                     Thus,
following Davis, Dixon’s Section 924(c) conviction can be sustained only if his
kidnapping offense qualifies as a crime of violence under the elements clause.
       We recently held that Davis announced a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court. See
United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019). And, although we
have not addressed whether kidnapping qualifies as a crime of violence post-
Davis, Dixon’s position is supported by our sister circuits that have. See United
States v. Walker, 934 F.3d 375, 378–79 (4th Cir. 2019); Knight v. United States,
936 F.3d 495, 497 (6th Cir. 2019); United States v. Brazier, 933 F.3d 796, 800–
01 (7th Cir. 2019); United States v. Hopper, 723 F. App’x 645, 646 (10th Cir.
2018); United States v. Gillis, 938 F.3d 1181, 1204–05 (11th Cir. 2019).
       In light of these considerations, we conclude that Dixon’s Davis-based
claim warrants fuller exploration by the district court and thus meets the
prima facie requirement. Cf. United States v. Williams, 897 F.3d 660, 662 (5th
Cir. 2018) (recognizing, pre-Davis, that “[i]f [the residual clause] is ultimately
held to be unconstitutional, that finding may open the door to future collateral
challenges to sentences rendered under that statute.”).
       Accordingly, Dixon’s motion for authorization to file a successive
Section 2255 petition is GRANTED. We note, however, that our grant of
authorization “is tentative in the following sense: the district court must
dismiss the motion that we have allowed the applicant to file, without reaching
the merits of the motion, if the court finds that the movant has not satisfied
the requirements for the filing of such a motion.” 1 Morris, 328 F.3d at 741
(quoting Reyes-Requena, 243 F.3d at 899).


       1We also note that we have recently held that a petitioner seeking to “rely on” Johnson
v. United States, 135 S. Ct. 2551 (2015) for purposes of filing a successive habeas petition
attacking his sentence under the Armed Career Criminal Act’s now-unconstitutional residual
                                              3
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provision must prove by a preponderance of the evidence that he was actually sentenced
under the ACCA’s residual provision. See United States v. Clay, 921 F.3d 550, 558–59 (5th
Cir. 2019).
