     Case: 17-30675        Document: 00515097453          Page: 1     Date Filed: 08/29/2019




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

                                       No. 17-30675                              FILED
                                                                           August 29, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                Plaintiff - Appellee

v.

BOBBIE LONDON, JR.,

                Defendant - Appellant




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Bobbie London, Jr. is a career offender, serving 327 months for various
drug offenses. He appeals the district court’s order denying as untimely his 28
U.S.C. § 2255 motion to correct his 1996 sentence. London contends that the
residual clause of the pre-Booker 1 Sentencing Guideline’s career offender
provision, 2 under which he was sentenced, is unconstitutionally vague because


      1   See United States v. Booker, 543 U.S. 220 (2005).
      2  Under the Sentencing Guidelines in place at the time, a defendant was a career
offender if:
       (1) the defendant was at least eighteen years old at the time of the instant
      offense, (2) the instant offense of conviction is a felony that is either a crime of
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                                       No. 17-30675
its language is the same as the residual clause of the Armed Career Criminal
Act (ACCA) declared unconstitutional in Johnson v. United States, 135 S.Ct.
2551 (2015). The precise question before us is whether London’s § 2255 motion
is timely. To answer that question, however, we must determine whether
London asserts the right newly recognized in Johnson, making his motion
timely, or whether his § 2255 motion asserts a right not yet recognized by the
Supreme Court, rendering his motion untimely. We hold that the right he
claims and asserts is not the right recognized in Johnson. We therefore affirm
the district court’s dismissal of his § 2255 motion as not entitled to a new
statute of limitations and thus time barred.
                                              I.
                                             A.
       In July 1996, Bobbie London pled guilty to five violations of the Federal
Controlled Substances Act, 21 U.S.C. §§ 841(a)(1) & 846. The court sentenced
London as a “career offender,” which applies when, inter alia, “the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 4B1.1 (U.S. Sentencing Comm’n 1995). At the time, i.e., pre-Booker, the
Sentencing Guidelines defined a crime of violence in three clauses: an elements
clause, an enumerated offenses clause, and a residual clause. 3 Id. § 4B1.2(1).



       violence or a controlled substance offense, and (3) the defendant has at least
       two prior felony convictions of either a crime of violence or a controlled
       substance offense.
       U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm’n 1995).
       3 The elements clause defined a “crime of violence” as “any offense under federal or
state law punishable by imprisonment for a term exceeding one year that -- has as an element
the use, attempted use, or threated use of physical force against the person of another.”
U.S.S.G. § 4B1.2(1)(i). The enumerated offenses clause added the following specific offenses:
“burglary of a dwelling, arson, or extortion, involves use of explosives.” Id. § 4B1.2(1)(ii).

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                                      No. 17-30675
Our concern today is with the provision’s residual clause, which defined a
“crime of violence” as “any offense under federal or state law punishable by
imprisonment for a term exceeding one year that . . . otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 4
Id. § 4B1.2(1)(ii).
       London had previously been convicted in Louisiana state court for illegal
use of a weapon and distribution of cocaine. At his sentencing for his federal
crimes, the district judge applied the career offender enhancement and
calculated London’s guideline range for imprisonment to be 262 to 327 months.
He was thus sentenced, in 1996, to 327 months on each count, to be served
concurrently, a sentence he is presently serving.
                                             B.
       After London’s sentence became final, the Supreme Court decided two
cases that lay the foundation for this appeal. First, in United States v. Booker,
the Supreme Court held that the Sentencing Guidelines—under which London
was sentenced—if considered “mandatory and binding on all judges,” violated
the Sixth Amendment by confecting sentences based on facts not established
by a plea of guilty or jury verdict. 543 U.S. at 233, 244 (majority opinion of


       4 In 1997, § 4B1.2(1)(i)–(ii) was stylistically amended to § 4B1.2(a)(1)–(2). U.S.S.G.
app. C amendment 568 (effective November 1, 1997). In 2016, the Guidelines were amended
to strike the residual clause. In full, it now reads:

       (a) The term “crime of violence” means any offense under federal or state law,
       punishable by imprisonment for a term exceeding one year, that--
              (1) has as an element the use, attempted use, or threatened use of
              physical force against the person of another, or
              (2) is murder, voluntary manslaughter, kidnapping, aggravated
              assault, a forcible sex offense, robbery, arson, extortion, or the use or
              unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or
              explosive material as defined in 18 U.S.C. § 841(c).
       U.S.S.G. § 4B1.2(a) (2016).

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                                          No. 17-30675
Stevens, J.).      To remedy this constitutional violation, the Supreme Court
severed “the provision of the federal sentencing statute that makes the
Guidelines mandatory . . . mak[ing] the Guidelines effectively advisory.” Id. at
245 (majority opinion of Breyer, J.).
      Second, in Johnson, the Supreme Court recognized a new rule of
constitutional law, holding that the residual clause of the ACCA, 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague. 135 S.Ct. at 2557–58, 2563. The
residual clause in the ACCA defined “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year . . . that . . . otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 5
18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court determined that the residual
clause was unconstitutionally vague, denying due process of law in violation of
the Fifth Amendment, because it “both denies fair notice to defendants and
invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. The
Court identified “[t]wo features of the residual clause [that] conspire to make
it unconstitutionally vague.” Id. It “leaves grave uncertainty about how to
estimate the risk posed by a crime” while, at the same time, “leav[ing]



      5   In full, the statute’s violent felony definition provides:

      [T]he 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)(ii).



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                                 No. 17-30675
uncertainty about how much risk it takes for a crime to qualify as a violent
felony.” Id. at 2257–58. Johnson was made retroactive in Welch v. United
States, 136 S.Ct. 1257 (2016).
      The Supreme Court’s decision in Beckles v. United States also merits our
attention. 137 S.Ct. 886 (2017). In Beckles, the Supreme Court considered a
vagueness challenge to the residual clause of U.S.S.G. § 4B1.2 in the post-
Booker Guidelines. Id. at 890. The Court determined that, because the post-
Booker Guidelines “merely guide the district courts’ discretion, the Guidelines
are not amenable to a vagueness challenge.” Id. at 894. Prior to the creation
of the Sentencing Guidelines regime, the Court explained, judges had virtually
unfettered discretion at sentencing. Since that purely discretionary system
was not unconstitutionally vague, it necessarily followed that neither was the
Guidelines scheme of “guided discretion” unconstitutionally vague. Id.
      Furthermore, according to the Court, the post-Booker Guidelines “do not
implicate the twin concerns underlying vagueness doctrine—providing notice
and preventing arbitrary enforcement.” Id. “As to notice, even perfectly clear
Guidelines could not provide notice to a person who seeks to regulate his
conduct so as to avoid particular penalties within the statutory range” because
“the sentencing court retains discretion to impose [an] enhanced sentence.” Id.
And, as to preventing arbitrary enforcement, the post-Booker Guidelines do not
leave judges “free to decide, without any legally fixed standards . . . the
sentences or sentencing range available.” Id. at 894–95 (quoting Giaccio v.
Pennsylvania, 382 U.S. 399, 402–03 (1966)). Instead, “court[s] rel[y] on the
career-offender Guideline merely for advice in exercising its discretion to
choose a sentence within [the] statutory limits.” Id. at 895.
                                       C.
      In June 2016, within the one-year statute of limitations from the date of
the Johnson decision, London filed a 28 U.S.C. § 2255 motion seeking to correct
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                                      No. 17-30675
his 1996 sentence. He argued that this new limitation period included his
claim; that is to say, Johnson’s invalidation of the residual clause of the ACCA
applied to negate the identically worded residual clause in the pre-Booker
career offender Guideline provision under which he was sentenced. It followed,
according to London, that his § 2255 motion was timely and his 1996 sentence
must be vacated.
         The district court did not agree and denied London’s motion as untimely.
The court held that London did not assert a right newly recognized in Johnson;
instead, he sought to extend Johnson to the residual clause in the pre-Booker
Sentencing Guidelines and, consequently, the limitation period had not been
reset.       Because the district court denied London’s motion on timeliness
grounds, it did not expressly address the merits of London’s 28 U.S.C. § 2255
motion. London has timely appealed. 6
                                             II.
         On appeal, London argues again that the right he “asserted” is a right
“initially recognized” in Johnson and thus his motion is timely because it was
filed within one-year after Johnson was decided. London characterizes the
right recognized in Johnson as the “due process right not to have his sentence
fixed by the unconstitutionally vague language of the residual clause.” The
government argues that the right recognized in Johnson is significantly
narrower: it is only the right not to be sentenced under the residual clause in
the ACCA. 7




         London’s motion for a certificate of appealability (“COA”) was initially denied by a
         6

single-judge order. On rehearing, a three-judge panel issued a COA.
       Because we decide this case on timeliness grounds, we need not discuss London’s
         7

argument on the merits of his 28 U.S.C. § 2255 motion.

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                                       No. 17-30675
                                             III.
      We review “the district court’s factual findings relating to a § 2255
motion for clear error and its conclusions of law de novo.” United States v.
Morgan, 845 F.3d 664, 666 (5th Cir. 2017) (quoting United States v. Olvera,
775 F.3d 726, 728–29 (5th Cir. 2015)). London challenges the district court’s
legal conclusion, that is, that London’s motion to correct his sentence is
untimely, and consequently our review is de novo.
                                             IV.
                                              A.
      It is undisputed that the Supreme Court, in Johnson, recognized a new
rule of constitutional law. See Welch, 136 S.Ct. at 1264. The question posed
by this appeal is whether London’s motion asserts the same right “initially
recognized by the Supreme Court” in Johnson, thus rendering his motion
timely under the one-year limitations period of § 2255(f)(3) applicable to newly
recognized rights. 8 Our review is limited in deciding this question. We are not
specifically called upon to consider the merits of London’s constitutional claim.
To be sure, § 2255(f)(3) instructs us to decide only the contours of the right the
Supreme Court recognized in Johnson.
      Nevertheless, to determine whether the Supreme Court initially
recognized the asserted right, and thus whether the § 2255(f)(3) clock has been
reset, we apply the same analysis used to determine if a case announces a “new



      8   Section 2255(f)(3) reads:
      (f) A 1-year period of limitation shall apply to a motion under this section. The
      limitation period shall run from the latest of--
      ...
               (3) the date on which the right asserted was initially recognized by the
               Supreme Court, if that right has been newly recognized by the Supreme
               Court and made retroactively applicable to cases on collateral review.

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                                     No. 17-30675
rule” that may be asserted retroactively on collateral review. Morgan, 845 F.3d
at 667–68; see Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion of
Connor, J.); see also Russo v. United States, 902 F.3d 880, 882 (8th Cir. 2018)
(“[T]he inquiry into whether a right is ‘newly recognized’ under § 2255(f)(3)
tracks the analysis used to determine ‘whether the Supreme Court announced
a “new rule” within the meaning of the Court’s jurisprudence governing
retroactivity for cases on collateral review.’” (quoting Headbird v. United
States, 813 F.3d 1092, 1095 (8th Cir. 2016))). As stated in Teague, “a case
announces a new rule when it breaks new ground or imposes a new obligation
on the States or the Federal 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.” 489 U.S. at 301. “Dictated
by precedent means that ‘no other interpretation was reasonable.’” Morgan,
845 F.3d at 667 (quoting Lambrix v. Singletary, 520 U.S. 518, 538 (1997)). 9
      The right that London asserts is that a sentence determined by the vague
language of the residual clause in U.S.S.G. § 4B1.2 pre-Booker violates
constitutional due process. This asserted right, we think, is not dictated by
Johnson; London’s assertion is more properly described as a “new right” to the
extent that it is a right that has not yet been recognized by the Supreme Court.
The Supreme Court has yet to decide whether a vagueness challenge can be
raised under the pre-Booker Sentencing Guidelines.                Instead, the Court’s
decisions up until this point evince a distinction between statutes that fix


      9 We follow the approach for assessing timeliness under § 2255(f)(3) as set out in
Morgan. In United States v. Williams, however, we held that, to trigger the time extension
of § 2255(f)(3), the challenged statute “must actually have first been invalidated” by the
Supreme Court. 897 F.3d 660, 662 (5th Cir. 2018). Our opinion today, drawing on the
Morgan analysis, holds that the one-year extension applies when the decision of the Supreme
Court “dictates,” i.e., leaves no room for any other view, the invalidity of the challenged
statute. Although the outcome we reach today would be the same under Williams, we
nevertheless apply Morgan, a decision that pre-dates Williams.

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                                      No. 17-30675
sentences and Guidelines that attempt to constrain the discretion of
sentencing judges. 10
       Let us be more specific. Johnson decided a challenge to the residual
clause in the ACCA—a statute—which imposed a mandatory minimum
sentence of fifteen years and up to a maximum of life for defendants who had
three previous convictions for a “violent felony.” Johnson, 135 S.Ct. at 2555
(quoting 18 U.S.C. § 924(e)(1)).          Unlike the ACCA, the “career offender”
designation in the pre-Booker Guidelines did not increase the statutory
minimum or maximum penalty a defendant faced.                      The Guidelines only
cabined a judge’s discretion in choosing a sentence within the statutory range.
This point is evident in London’s own sentencing, at which he faced a statutory
minimum sentence of ten years and a statutory maximum sentence of life
imprisonment. The pre-Booker Guidelines did not statutorily increase the risk
London faced at sentencing; the statutory minimum and maximum sentence
he faced remain the same.           Instead, the career offender designation only
directed the discretion of the district judge within the statutory range—i.e., ten
years to life—to a sentence of 262 to 327 months. That is distinguishable from
Johnson, where applying the residual clause had the effect of increasing the
punishment faced by the defendant by raising the statutory minimum and
maximum sentences. 135 S.Ct. at 2555.
       That Johnson does not dictate the right urged by London is further
supported by Beckles, in which the Supreme Court emphasized the distinction
between statutes that “fix the permissible range of sentences” and advisory
Guidelines that “guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” 137 S.Ct. at 892. In Beckles,



        In fact, one court of appeals has held that pre-Booker Guidelines are not susceptible
       10

to vagueness challenges. In re Griffin, 823 F.3d 1350, 1354–55 (11th Cir. 2016).

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                                        No. 17-30675
the Court narrowly held that the latter do.                 The Court did not indicate,
however, whether this is true with respect to the pre-Booker Guidelines as well.
As indeed Justice Sotomayor observed, the Supreme Court has “le[ft] open the
question whether defendants sentenced to terms of imprisonment before [its]
decision in United States v. Booker . . .—that is, during the period in which the
Guidelines did ‘fix the permissible range of sentences’—may mount vagueness
attacks on their sentences.”          Id. at 903 n.4 (Sotomayor, J., concurring in
judgment) (quoting id. at 892.)
                                               B.
       Our holding that London’s motion is thus untimely accords with the
decision of six courts of appeals that have already addressed this same issue.
See United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018), cert. denied, No.
18–9368, 2019 WL 2211790 (U.S. June 24, 2019); Russo v. United States, 902
F.3d 880 (8th Cir. 2018), cert. denied 139 S.Ct. 1297 (2019); United States v.
Green, 898 F.3d 315 (3d Cir. 2018), cert. denied 898 F.3d 315 (2019); United
States v. Greer, 881 F.3d 1241 (10th Cir.), cert. denied, 139 S.Ct. 14 (2018); 11
Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), cert. denied 138 S.Ct.
2661 (2018); United States v. Brown, 868 F.3d 297 (4th Cir. 2017), cert. denied,
139 S.Ct. 14 (2018). Only one circuit has found that challenges to the residual
clause in the pre-Booker Guidelines assert the new right recognized in
Johnson, and thus the claims not time barred. 12 See Cross v. United States,



       11 London posits that the Tenth Circuit is reconsidering its decision in Greer because
panel rehearing was granted on an order issuing a summary affirmance based on Greer. See
United States v. Ward, 718 F. App’x 757 (10th Cir. Apr. 11, 2018) (per curiam), reh’g granted
(Aug. 6, 2018). More recently, however, the Tenth Circuit has reaffirmed Greer. See United
States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir. 2019) (“[I]t is clear Greer’s holding, that
Johnson does not create a new rule of constitutional law applicable to the mandatory
Guidelines, remains good law.”).
       12The First Circuit has only addressed this issue under the lower standard of 28
U.S.C. § 2244(b)(3)(C), concluding that the petitioner had made the prima facie showing
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                                       No. 17-30675
892 F.3d 288 (7th Cir. 2018). The Seventh Circuit found that the petitioner
had “asserted” a right that reset the § 2255(f)(3) clock by only “claim[ing] the
benefit of a right that the Supreme Court has recently recognized.” 13 Id. at
294.
       London asks that we adopt this meaning of “asserted.” We decline to do
so. First, the Seventh Circuit’s interpretation of “asserted” is inconsistent with
the “dictated by precedent” test set forth in Morgan.                      Moreover, it is
incompatible with the plain text of § 2255(f)(3). See Trout Point Lodge, Ltd. v.
Handshoe, 729 F.3d 481, 486 (5th Cir. 2013) (“When the language is plain, we
‘must enforce the statute’s plain meaning, unless absurd.’” (quoting In re
Nowlin, 576 F.3d 258, 261–62 (5th Cir. 2009))). London’s motion is timely only
if, in the words of the statute, “the right asserted was initially recognized” in
Johnson. 28 U.S.C. § 2255(f)(3) (emphasis added).                   Thus, the text of the
statute narrows the rights which may be asserted, which in turn requires us
to determine whether the right asserted by London is the right recognized by
the Supreme Court in Johnson.              Other circuits agree and also reject the
Seventh Circuit’s reading of the statute. See Blackstone, 903 F.3d at 1027 (“We
disagree with the interpretation of the Seventh Circuit. The right that a
movant asserts must be ‘initially recognized by the Supreme Court.’” (quoting
28 U.S.C. § 2255(f)(3))); Green, 898 F.3d at 322 (“We are not persuaded by the
[Seventh Circuit’s] brief analysis on this issue, which effectively reads
‘recognized’ out of 28 U.S.C. § 2255(f)(3) by not engaging in an inquiry into



necessary for certification of a successive habeas application. See Moore v. United States, 871
F.3d 72, 85 (1st Cir. 2017).
       13 After finding that the petitioners’ motions were timely, the Seventh Circuit
invalidated their sentences, holding that the pre-Booker version of U.S.S.G. § 4B1.1 suffered
from the same vagueness problems as ACCA’s residual clause, the pre-Booker Guidelines
were subject to vagueness challenges, and Johnson applied retroactively to the pre-Booker
Guidelines residual clause. Cross, 892 F.3d at 299–307.

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                                  No. 17-30675
whether the right asserted by the petitioner is the same right that was
recognized by the Supreme Court.”). In short, it is debatable whether the right
recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an
administrative regime that governs a judge’s discretion to a range within the
statutory minimum and maximum sentences. Consequently, London does not
assert a right dictated by Johnson but instead asserts a right that would
extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim
is therefore not entitled to the benefit of a new statute of limitations.
                                        V.
      To sum up: London’s 28 U.S.C. § 2255 motion is untimely because he has
failed to assert a right recognized in Johnson. The judgment of the district
court is therefore
                                                                     AFFIRMED.




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                                     No. 17-30675
GREGG COSTA, Circuit Judge, concurring in the judgment:
      Our caselaw requires treating London’s section 2255 motion as untimely.
See United States v. Williams, 897 F.3d 660, 662 (5th Cir. 2018). Williams
denied a certificate of appealability to a prisoner in a situation like London’s.
That prisoner asserted that Johnson’s invalidation of one clause of the Armed
Career Criminal Act’s definition of “violent felony” (18 U.S.C. § 924(e)(2)(B)(ii))
required invalidating similar language defining “crime of violence” in the same
statute (id. § 924(c)(3)(B)). Williams, 897 F.3d at 662. Because the Supreme
Court had not yet decided that the latter was also vague—it soon would, see
United States v. Davis, 139 S. Ct. 2319 (2019)—we concluded that the prisoner
was not relying on a right recognized by the Supreme Court that would restart
the one-year clock for seeking postconviction relief. Williams, 897 F.3d at 662.
London seeks a bigger leap, asking us to apply Johnson not to a statute but to
a Sentencing Guideline. So under Williams, it is not enough for London that
he is asserting the right to be free from vague sentencing provisions that the
Supreme Court recognized in Johnson.              In this circuit, the habeas clock
restarts only if the Supreme Court has addressed the exact application of
Johnson that would grant the prisoner relief. Id. (stating that the challenged
statute “must actually have first been invalidated” for section 2255(f)(3) to
apply). I would affirm on that procedural ground without reaching the difficult
constitutional question whether a mandatory Guideline can be challenged on
vagueness grounds. 1       See Slack v. McDaniel, 529 U.S. 473, 485 (2000)




      1  The remedy for such a violation, if one exists, is unclear. Applying the career
offender enhancement that uses the vague Johnson language does not violate due process
when the Guideline is advisory. Beckles v. United States, 137 S. Ct. 886 (2017). If a
mandatory Guideline using that language is unconstitutional, there seem to be two possible
remedies: 1) eliminate the vague career offender enhancement from the Guidelines
calculation used at the resentencing, or 2) keep the enhancement, but treat the resulting
range as an advisory one from which the resentencing court may vary. Under the former, a
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                                   No. 17-30675

(encouraging courts to “first resolve procedural issues” before answering
constitutional questions).
      But I write separately because we are on the wrong side of a split over
the habeas limitations statute. Our approach fails to apply the plain language
of the statute and undermines the prompt presentation of habeas claims the
statute promotes.
      Although this limitations issue affects more than the Johnson line of
cases, litigation resulting from that case has highlighted the differing
interpretations of this gateway provision. So a brief history of Johnson is
helpful. It was a landmark decision. For the first time, the Supreme Court
held that a sentencing provision was void for vagueness. Johnson v. United
States, 135 S. Ct. 2551, 2577 (2015) (Alito, J. dissenting) (suggesting that prior
to Johnson “[d]ue process [did] not require . . . that a ‘prospective criminal’ be
able to calculate the precise penalty that a conviction would bring”). In the
four years since Johnson was decided, the Supreme Court has applied it to hold
that two other laws violate due process. Davis, 139 S. Ct. at 2319; Sessions v.
Dimaya, 138 S. Ct. 1204 (2018).
      Johnson did not just generate several substantive questions about the
vagueness doctrine in the sentencing context, it also spawned difficult
procedural questions. The Supreme Court soon answered one of the big ones,
holding that Johnson applies retroactively to cases on collateral review. Welch
v. United States, 136 S. Ct. 1257 (2016). But retroactivity is not the only
obstacle for a federal prisoner whose conviction became final before a change
in the law that might help him. There is a statute of limitations for motions
seeking postconviction relief.    Ordinarily it is one year from the date the



career offender sentenced under the mandatory regime ends up better off than a career
offender like Beckles who was sentenced under an advisory range.

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                                  No. 17-30675

conviction becomes final, but a petition is also timely if it is filed within a year
of “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3). There is also a bar to filing multiple section 2255 petitions, though
that can be overcome if a court of appeals certifies that a successive petition
“contain[s] a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). The statutory
rules on timeliness and successive petitions thus both provide avenues for
prisoners to assert rights that apply retroactively. Yet courts have struggled
with these provisions when it comes to prisoners invoking Johnson to challenge
laws with similar language to the statute the Supreme Court addressed.
Compare Cross v. United States, 892 F.3d 288, 293–94 (7th Cir. 2018)
(restarting the clock when the prisoner asserted that Johnson invalidated
other laws using the same or similar vague language), with Raybon v. United
States, 867 F.3d 625, 630 (6th Cir. 2017) (not restarting the clock after Johnson
because the prisoner challenged a provision other than the one Johnson
addressed); see also In re Arnick, 826 F.3d 787, 789–90 (5th Cir. 2016) (Elrod,
J. dissenting) (recognizing that the opinion created a circuit split as to what a
prisoner must show in order to “rel[y] on” the Johnson right under 28 U.S.C.
§ 2255(h)(2)).
      This case raises the timeliness issue. The question is thus whether
London’s petition asserts a “right . . . newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3). It does. The petition asserted the right to be free from vague laws
“fixing sentences” that Johnson recognized. Johnson, 135 S. Ct. at 2557. And
the Johnson right applies retroactively. Welch, 136 S. Ct. at 1268. So under


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the habeas statute’s plain language, the petition was timely. See Cross, 892
F.3d at 294; cf. Moore v. United States, 871 F.3d 72, 82 (1st Cir. 2017)
(suggesting in the successive petition context that Johnson reset the clock for
vagueness challenges to the Sentencing Guideline challenged in this case).
      But as mentioned at the outset, our circuit and most others addressing
the issue require more than the statute does. Restarting the clock only when
the Supreme Court has vindicated the prisoner’s exact claim transforms a
threshold timeliness inquiry into a merits one. The language the district court
used in rejecting London’s petition as untimely shows how our approach
improperly imports the merits. It concluded that “[t]here is no right ‘newly
recognized by the Supreme Court’ that entitles Petitioner to relief.” ROA.103.
But section 2255(f)(3) “does not say that the movant must ultimately prove that
the right applies to his situation.” Cross, 892 F.3d at 294; see also United States
v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (“Whether or not [the
petitioner] can ultimately prevail on his motion, he asserts the right
established in Johnson, to be free from a sentence purportedly authorized by
the unconstitutionally vague residual clause.”); cf. Arnick, 826 F.3d at 789
(Elrod, J., dissenting) (explaining that to obtain permission to file a successive
section 2255 motion, a petitioner need only show that his petition “‘relies on’
Johnson,” not that he will prevail on the claim). Indeed, litigants assert rights,
but are unsuccessful in doing so, just about every day in this circuit. We have
improperly read a success requirement into a statute that requires only the
assertion of a right.
      The success requirement is at odds not just with the word “asserts,” but
also with the plain meaning of “right.” Instead of looking to see only if the
petition asserts a right recognized by the Supreme Court within the past year,
we also look at whether the Supreme Court has already applied that right to


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the provision the prisoner challenges. Williams, 897 F.3d at 662. In other
words, we require a holding when the statute requires only Supreme Court
recognition of the right. Moore, 871 F.3d at 82 (distinguishing “rule” and
“right” from “holding” and noting that Congress’s use of the former “recognizes
that the Supreme Court guides the lower courts not just with technical
holdings but with general rules that are logically inherent in those holdings”).
That “initially” modifies “recognized” in section 2255(f)(3) reinforces that it is
the Supreme Court decision first recognizing the right, not a later opinion
applying the same right, that restarts the clock.                 That adverb would be
redundant if each “right” the Supreme Court recognized were a one-and-done
proposition, extending no further than the precise circumstances of the
decision.
       An example from another area of criminal law shows how we have
mistaken the application of the Johnson right for the right itself. Crawford v.
Washington, 541 U.S. 36 (2004), would also sit near the top of a list of the most
important criminal law decisions from the Supreme Court in this still-young
century. It changed the standard for Confrontation Clause claims. Murillo v.
Frank, 402 F.3d 786, 790 (7th Cir. 2005) (noting that Crawford “jettisoned” the
previous standard). And like Johnson, it led to several follow-up Supreme
Court cases applying its new standard to various situations. 2 Among other
things, the Court has addressed Crawford’s application to a drug lab report,
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); a blood-alcohol analysis
report, Bullcoming v. New Mexico, 564 U.S. 647 (2011); expert testimony about
a DNA profile, Williams v. Illinois, 567 U.S. 50 (2012); and the statements of a



       2 Crawford does not apply retroactively, so it was not a source of much postconviction
litigation. Whorton v. Bockting, 549 U.S. 406, 409 (2007). It is still useful to show the plain
meaning of “right.”

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three-year-old domestic abuse victim to his preschool teacher, Ohio v. Clark,
135 S. Ct. 2173 (2015). But a lawyer or judge would not now speak of a
“Bullcoming right” or a “Melendez-Diaz claim.” It is still the Crawford right,
or a Crawford claim, in whatever new context it arises.
       The same is true of Johnson. It recognized the general right to be
sentenced under provisions that provide sufficient notice; Dimaya and Davis
have just applied that right to different laws. See Davis, 139 S. Ct. at 2334
(noting that Johnson “identified [the] constitutional problems” posed by the
language in 18 U.S.C. § 924(c)(3)(B)); Dimaya, 138 S. Ct. at 1213 (invalidating
the aggravated felony definition in 18 U.S.C. § 16(b), used in sentencing
statutes, as a “straightforward application” of Johnson).
       London analogizes to another area of law that distinguishes between a
right and its application. He notes that courts have long had to make this
distinction in applying the retroactivity analysis of Teague v. Lane, 489 U.S.
288 (1989). A new rule under Teague is one that “breaks new ground or
imposes a new obligation” on the government. Id. at 301. A decision that is
“merely an application of the principle” announced in earlier Supreme Court
decisions is not a new rule. Id. at 307 (quoting Yates v. Aiken, 484 U.S. 211,
216 (1988)). It makes sense that the section 2255 limitation provision, which
recognizes an avenue to pursue retroactively applicable claims, would make a
similar distinction. Instead of accepting that symmetry between the statute
and retroactivity caselaw, our reading of section 2255(f)(3) risks treating each
application of Johnson as a new rule. 3


       3 As the majority notes, we have recognized a role for Teague in the section 2255(f)(3)
analysis. See United States v. Morgan, 845 F.3d 664 (5th Cir. 2017). Morgan relied on Teague
to conclude that a Supreme Court case the petitioner was relying on to restart the clock
(Descamps v. United States) did not establish a new rule or right because it only refined the
existing modified categorical approach. Id. at 667–68 (holding that “Descamps clearly relied
on existing precedent”). Morgan correctly focused on whether the recent Supreme Court case

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       Requiring an application of the right to the prisoner’s circumstances
delays the presentation of habeas claims. It means that a prisoner seeking to
apply a newly recognized right to his similar-but-not-identical claim cannot file
within a year of the Supreme Court decision; he must await a future decision
applying it to his exact situation. That is at odds with the goal of limitations
provisions—“to encourage plaintiffs to pursue diligent prosecution of known
claims.” Cal. Pub. Emps. Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2049
(2017) (quotation omitted). As one district court has noted, section 2255(f) aims
to “eliminate delays in the federal habeas review process, not to create them.”
United States v. Meza, 2018 WL 2048899, at *5 (D. Mont. May 2, 2018) (citation
and quotation omitted). What is more, the Supreme Court often will never
address a particular application of one of its decisions; that job is left largely
to the lower courts. And for the Johnson claim London asserts, there is a
unique impediment to Supreme Court review.                    Because it asks whether
Johnson applies to the now-abandoned mandatory Guidelines, a cramped
reading of the limitations provision prevents the only litigants affected by this




the prisoner relied on announced a new right or merely applied previously recognized rights.
Id. The majority uses Teague in a different way: not to ask whether the Supreme Court case
on which the prisoner relies recognized a new right, but to ask whether the application the
prisoner seeks would qualify as a “new rule.” Because the statute only requires that the
petitioner assert a right “newly recognized by the Supreme Court,” the proper inquiry is to
focus as Morgan did on whether the Supreme Court decision announced a new rule. By all
accounts, Johnson did. See Welch, 136 S. Ct. at 1257. That is what section 2255(f)(3)
requires. As discussed above, whether London is ultimately able to show that Johnson
affords him relief is a different question than whether he is asserting a new right within the
meaning of the limitations statute.
        I thus do not think that Morgan renders London’s claim untimely. Instead it supports
the view that Johnson initially recognized a new right. Morgan does mean that Dimaya and
Davis were not new rules and thus did not restart the habeas clock; only Johnson did. That
is also consistent with my view that only the case initially recognizing a right restarts the
clock, which results in the prompt presentation of these claims. Because I read Morgan to
support the timeliness of London’s petition, I view Williams as the case that requires its
dismissal.

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issue from ever pursuing it. See Brown v. United States, 139 S. Ct. 14, 15
(2018) (Sotomayor, J., dissenting).
       But on the whole, applying section 2255(f)(3) as written to require
asserting a right when it is in “initially recognized by the Supreme Court”
results in a pro-promptness statute more than a pro-prisoner one. Indeed, it
would mean that this summer’s Davis ruling from the Supreme Court would
not unleash another round of section 2255 motions from those sentenced before
Johnson. Those prisoners would have had to file their claims more than three
years ago. See, e.g., Thomas v. United States, 2018 WL 3999709, at *3 (E.D.
Va. Aug. 21, 2018) (holding that a vagueness challenge to 18 U.S.C. 924(c)—
the statute addressed this year in Davis–—was too late because it should have
been brought within a year of Johnson rather than within a year of Dimaya).
The confusion that instead reigns in this area means a prisoner is at risk of the
same claim being dismissed as too early and then too late, with no in-between
period when it would be timely. Compare id., with United States v. Brown, 868
F.3d 297, 303 (4th Cir. 2017) (dismissing claim asserting Johnson in attempt
to invalidate the career offender Guideline).
       The rule Congress chose—that the one-year clock restarts when the
Supreme Court initially recognizes the right the prisoner asserts—eliminates
these problems. But at a minimum, an issue that has divided so many judges
within and among circuits, 4 and that affects so many prisoners, “calls out for
an answer.” Brown, 139 S. Ct. at 14 (Sotomayor, J., dissenting).



       4 Compare United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018) (holding
London’s motion would be untimely); Russo v. United States, 902 F.3d 880 (8th Cir. 2018)
(same); United States v. Green, 898 F.3d 315 (3d Cir. 2018) (same); United States v. Greer,
881 F.3d 1241 (10th Cir. 2018) (same); Brown, 868 F.3d 297 (same); Raybon, 867 F.3d 625
(same), with Moore, 871 F.3d at 82 (suggesting London’s motion should be timely); Cross, 892
F.3d at 293–94 (holding the same); Chambers v. United States, 763 F. App’x 514, 519 (6th
Cir. 2019) (Moore, J. concurring) (concluding a motion like London’s should be timely);

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Hodges v. United States, 2019 WL 3384841, at *1 (9th Cir. Jul. 26, 2019) (Berzon, J.
concurring) (same); Brown, 868 F.3d at 304 (Gregory, C.J., dissenting) (same).

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