                                 RECOMMENDED FOR PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 20a0065p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 IN RE: JOHN W. FRANKLIN,                                     ┐
                                                 Movant.      │
                                                               >        No. 19-6093
                                                              │
                                                              ┘

             On Motion for Leave to File a Second or Successive Motion to Vacate.
          United States District Court for the Eastern District of Kentucky at Lexington.
            Nos. 5:06-cr-00082-1; 5:10-cv-07112—Joseph M. Hood, District Judge.

                                Decided and Filed: March 3, 2020

                    Before: NORRIS, SUTTON, and BUSH, Circuit Judges.
                                  _________________

                                             COUNSEL

ON MOTION: John W. Franklin, Bennettsville, South Carolina, pro se. ON RESPONSE:
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Respondent.

                                       _________________

                                               ORDER
                                       _________________

       PER CURIAM. John W. Franklin, a federal prisoner proceeding pro se, moves for an
order authorizing the district court to consider a second or successive motion to vacate, set aside,
or correct his sentence. See 28 U.S.C. §§ 2244(b), 2255(h). The government supports Franklin’s
motion.

       In 2007, a jury convicted Franklin of arson, 18 U.S.C. § 844(i); using a destructive device
in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(B)(ii); possessing an unregistered
firearm or destructive device, 26 U.S.C. § 5861(d); and possessing firearms while unlawfully
using a controlled substance, 18 U.S.C. § 922(g)(3). The district court sentenced Franklin to 420
 No. 19-6093                                In re Franklin                                 Page 2


months of imprisonment, and we affirmed. United States v. Franklin, 298 F. App’x 477, 479
(6th Cir. 2008).

        In 2010, Franklin filed a § 2255 motion, arguing that trial and appellate counsel
performed ineffectively. The district court denied the motion on the merits. This court declined
to issue a certificate of appealability.

        Franklin now moves for authorization to file a second or successive § 2255 motion, in
which he would argue that his § 924(c) conviction should be vacated because his § 844(i) arson
conviction no longer qualifies as a crime of violence in light of United States v. Davis, 139 S. Ct.
2319 (2019). The government agrees that this court should grant Franklin authorization to file a
second or successive § 2255 motion because Davis announced a new rule of constitutional law
that retroactively applies to cases on collateral review.

        We may authorize the filing of a second or successive § 2255 motion only if the
applicant’s proposed claims rely 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).

        Davis established a “new rule” because its “result was not dictated by precedent existing
at the time the defendant’s conviction became final.” Chaidez v. United States, 568 U.S. 342,
347 (2013). The spirited dissent in Davis and the circuit split that predated it suggest that
precedent did not dictate the decision.

        Ordinarily, lower courts do not apply a new rule announced by the Supreme Court
retroactively to cases on collateral review until the Court has announced the rule’s retroactive
effect. Tyler v. Cain, 533 U.S. 656, 664 (2001). That comes with a narrow exception. Lower
courts may determine on their own the retroactivity of new rules when “[m]ultiple cases . . .
necessarily dictate the retroactivity of the new rule.” Id at 664.
 No. 19-6093                               In re Franklin                                 Page 3


       The exception applies here. The Supreme Court’s decision in Welch v. United States,
136 S. Ct. 1257, 1264–65 (2016), establishes the retroactivity of Davis. Welch explained that
decisions announce a substantive rule and are thus retroactive when they “alter[] the range of
conduct . . . that the law punishes.” Id. That occurred in Johnson v. United States, 135 S. Ct.
2551 (2015), because it “changed the substantive reach of the Armed Career Criminal Act.”
Welch, 136 S. Ct. at 1265; see id. at 1264 (“[N]ew substantive rules generally apply
retroactively.” (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004))). So too in Davis,
where the Court narrowed § 924(c)(3) by concluding that its second clause was unconstitutional.
139 S. Ct. at 2336.

       That leaves the question of whether Franklin’s proposed petition relies on Davis’s rule.
His § 924(c) conviction was premised upon his use of a destructive device in furtherance of the
§ 844(i) offense. Davis offers Franklin no benefit if § 844(i) offenses fall under § 924(c)(3)(A),
which survived Davis. In other words, the question is whether § 844(i) “has as an element the
use, attempted use, or threatened use of physical force against the person or property of another.”
18 U.S.C. § 924(c)(3)(A). Arson under § 844(i) does not appear to qualify as a crime of violence
under § 924(c)(3)(A) because it can be committed against “any building . . . used in interstate or
foreign commerce,” including one owned by the arsonist. Id. § 844(i). Because that means
Franklin’s § 924 conviction must have been based on § 924(c)(3)(B), which Davis invalidated,
his proposed petition relies on Davis’s rule.

       Accordingly, we GRANT Franklin’s motion for authorization to file a second or
successive § 2255 motion and TRANSFER the case to the United States District Court for the
Eastern District of Kentucky for further proceedings.

                                                ENTERED BY ORDER OF THE COURT




                                                Deborah S. Hunt, Clerk
