In re Anthony Allen WILLIAMS, Movant, 806 F.3d 322

PATRICK E. HIGGINBOTHAM, Circuit Judge: Two distinct but kindred doctrines, each a marker of judicial role, show their force in this case — vagueness, and judicial control of the backward reach of judicial opinions. While the former is drawn from due process, both are shadowed by their never-ending struggle with the nuances of

Article III and separation of powers. Deploying the vagueness doctrine, the Court excised an element of a sentencing statute, leaving uncertain the class of persons injured by its presence and entitled to relief — here petitioners for habeas relief whose conviction and sentence are sound by the law in place when they exhausted their appeals.

The Supreme Court’s struggle with habeas relief for path-breaking decisions impacting criminal prosecutions includes a full retreat from claimed authority to make its decisions prospective only, turning to limiting habeas petitioners to the law in place when they exhausted direct appeals, a turn reinforced by Congress. I.

Movant Anthony Williams drew a fifteen year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), as a felon in possession of a firearm with three predicate violent felonies&emdash;two Texas convictions for delivery of a controlled substance and one 1985 Texas conviction for robbery. The ACCA defines a “violent felony” as an offense punishable by imprisonment for more than one year which “(

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.” The Supreme Court in Johnson v. United States found the “residual clause” of the ACCA to be unconstitutionally vague.

Williams now seeks leave to file a successive writ under 28 U.S.C. § 2255 to challenge his sentence, arguing that one of his predicate offenses&emdash;the robbery&emdash;fell under the residual clause, and that his ACCA sentence is therefore invalid after Johnson. II.

Under 28 U.S.C. § 2255(h)(2) and 28 U.S.C. § 2244(b)(2), an applicant for authorization to file a successive writ must show that “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Williams’s first habeas petition was filed and denied before the Johnson decision. To obtain permission to file a second or “successive” petition, he must make a “pri-ma facie showing” that his application relies on a new rule of constitutional law retroactively applicable.

A “prima facie showing” is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” III. A. Williams’s first hurdle, one he easily clears, is whether Johnson established a new rule of constitutional law. “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.” In holding the residual clause of the ACCA unconstitutionally vague, Johnson did not follow precedent.

Rather, the Court overruled two of its earlier cases. Joining the four other circuits that have decided this issue, we hold that Johnson announced a new rule of constitutional law. B. The next hurdle is whether the new rule in Johnson applies retroactively. To overcome the general bar to retroactivity of new rules on collateral review, Williams must meet one of two narrow exceptions to Teague v. Lane.

The first is “a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” This exception is limited in scope, applying only to those cases “implicating the fundamental fairness and accuracy of the criminal proceeding” or “implicit in the concept of ordered liberty.” In providing guidance as to what might fall within this exception, the Court has “repeatedly referred to the rule of Gideon v. Wainwright,” as the paradigmatic example of a watershed rule. Johnson plainly is not such a watershed rule and no one seriously argues otherwise.

To be available to Williams, then, Johnson must fall within the second exception to Teague — as a “[n]ew substantive rule[ ].” Under this exception, substantive rules “should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Of course, Johnson does not forbid the criminalization of any of the conduct covered by the ACCA — Congress retains the power to increase punishments by prior felonious conduct.

It signifies that Johnson took down the residual clause of the ACCA on vagueness grounds, a denial of due process, which is no way forbids the regulatory objective — only insisting upon sufficient clarity as to give fair notice of how it is to be achieved. More to the point, though, is that Johnson also does not forbid a certain category of punishment. As Justice Scalia explained in Schriro v. Summerlin, substantive rules apply retroactively “because they necessarily carry a significant risk that a defendant ...” faces a punishment that the law cannot impose upon him.

Rules that “deprive[] the State of the power to impose a certain penalty” are retroactive, but rules that merely alter the sentencing structure under which a penalty is imposed are not. After John son, defendants similar to Williams may, within the bounds of the constitution, face a fifteen year sentence — Congress is not “deprived” of that power. Johnson merely mandates that Congress require such punishment with greater clarity — fair notice to persons it engages. Therefore, Johnson is not available to Williams on collateral review. IV.

In so deciding, we disagree with recent decisions in two of our sister Circuits. In Price v. United States, the Seventh Circuit concluded that Price had made a pri-ma facie showing for the collateral reach of Johnson, granting him leave to file a successive writ. The court argued that, as a result of Johnson, “[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.” But Congress could impose the exact punishment in Johnson if Congress did so with specific, not vague, language.

Most recently, the First Circuit granted a similarly situated prisoner leave to file a successive writ under § 2255 in a brief opinion applying the prima facie standard. Our decision and reasoning here align with the majority in the recent Eleventh Circuit decision, In re Rivero. Especially, we diverge from the argument, made in dissent, that Bousley v. United States indicates that Congress’s hypothetical power to criminalize certain conduct is irrelevant to Teague analysis. In Bousley, the Court determined that an earlier decision, Bailey v.

United States, interpreting the word “use” in a criminal statute, was available on collateral review, despite the fact that Congress later amended the statute to criminalize exactly the conduct at issue in the case. But Bousley was decided completely outside of the Teague framework, and it does not apply to Johnson.

Chief Justice Rehnquist determined that Teague did not govern in Bousley because Teague “is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress.” But unlike Bailey, Johnson did not interpret the ACCA in service of Congressional intent — it excised as unconstitutional an entire provision of duly enacted law. Nor did it merely “explain what [the statute] has meant even since [it] was enacted,” as Justice Stevens explained in his partial concurrence in Bousley facilitating a remand for a showing of actual innocence.

Rather, Johnson actually overruled two of the Court’s earlier cases, clearly differentiating it from Bailey, and making a “new rule,” firmly within the Teague framework. Y. It is true that Williams need only demonstrate a “sufficient showing of possible merit to warrant a fuller exploration by the district court” to obtain leave to pursue his successive writ. But, the prima facie standard requires at the least a sufficient showing that Johnson is available to him on collateral review. Since we have concluded that it is not, his motion for authorization to file a successive 28 U.S.C. § 2255 petition is DENIED. .

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); 28 U.S.C. § 2255(h)(2); 28 U.S.C. § 2244(b)(2); Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L.Rev. 56 (1965). . 18 U.S.C. § 924(e)(2)(B) (emphasis added). . -U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). . 28 U.S.C. § 2244(b)(3)(C); see also In re Simpson, 555 Fed.Appx. 369 (5th Cir.2014) (describing prima facie standard). . Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir.2001) (holding that pri-ma facie standard is incorporated into § 2255). .

Four of our sister circuits have recently addressed Johnson’s retroactivity, and all agreed that it is a new rule of constitutional law. Price v. United States, 795 F.3d 731, 732 (7th Cir.2015); In re Rivero, 797 F.3d 986, 989 (11th Cir.2015); In re Gieswein, 802 F.3d 1143, 1145-46 (10th Cir.2015); Pakala v. United States, 804 F.3d 139, 139-40 (1st Cir.2015). . Chaidez v. United States,-U.S.-, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013) (citation, internal quotation marks, and brackets omitted). . See 135 S.Ct. at 2562-63. . 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). . Schriro v.

Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). . Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). . Id.; Teague, 489 U.S. at 307, 109 S.Ct. 1060 (quotation omitted). . Banks, 542 U.S. at 417, 124 S.Ct. 2504. . Id. . Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256(1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . 542 U.S. at 351-52, 124 S.Ct. 2519 (internal citations omitted). . Penry, 492 U.S. at 330, 109 S.Ct. 2934. . See Saffle v.

Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (A rule requiring that a jury be permitted to considering mitigating evidence did not “prohibit the imposition of capital punishment on a particular class of persons” and could not be applied in a case on collateral review.). . Penry, 492 U.S. at 330, 109 S.Ct. 2934. . 795 F.3d 731. . Id. . Id. at 734. . Pakala v. United States, 804 F.3d 139 (1st Cir.2015). . 797 F.3d 986, 989 (11th Cir.2015).

The Tenth Circuit also recently denied a successive writ under Johnson, although our colleagues there would await Supreme Court holdings that "by strict logical necessity, dictate that the Supreme Court, itself, has made a new rule retroactive on collateral review.” In re Gieswein, 802 F.3d 1143, 1146-47 (10th Cir.2015) (internal citations omitted). . 797 F.3d at 1000. . 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). . Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). . Id. at 625, 118 S.Ct. 1604. . See 135 S.Ct. at 2562-63. . Reyes-Requena, 243 F.3d at 897-99.