In re: Windy Watkins
Filing
OPINION and JUDGMENT: The motion for authorization to file a second or successive 2255 petition [5279166-2] is GRANTED. Decision for publication. Ralph B. Guy, Jr., Eric L. Clay (AUTHORING) and Jane Branstetter Stranch, Circuit Judges.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0295p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: WINDY WATKINS,
Movant.
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No. 15-5038
On Motion to Authorize the Filing of a Second or
Successive Application for Habeas Corpus Relief.
Nos. 1:03-cr-00230-2; 1:14-cv-00195;
Eastern District of Tennessee at Chattanooga.
Decided and Filed: December 17, 2015
Before: GUY, CLAY, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON SUPPLEMENTAL BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF
EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Movant.
_________________
OPINION
_________________
CLAY, Circuit Judge.
Windy Watkins, a federal prisoner serving a sentence of
185-months’ imprisonment for possession of a firearm by a convicted felon, moves this Court for
authorization to file a second or successive habeas petition under 28 U.S.C. § 2255. In her
supplemental brief, Watkins seeks to base her collateral attack on the Supreme Court’s recent
ruling in Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the imposition of an
increased sentence under the Armed Career Criminal Act’s (“ACCA”) residual clause violates
due process, as guaranteed by the Fifth Amendment of the United States Constitution, because
1
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the residual clause is so vague that it “denies fair notice to defendants and invites arbitrary
enforcement by judges.”1 Id. at 2557. This Court may authorize the filing of a second or
successive2 § 2255 petition only if we determine that Watkins has made a prima facie showing
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); see
also In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (per curiam). For the following reasons, we
find that Watkins has made such a showing and GRANT her authorization to file a second or
successive § 2255 petition.
I.
In 2005, Watkins pleaded guilty to one count of being a convicted felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1).
Under ACCA, any person who violates
§ 922(g)(1) and has three qualifying convictions is subject to a 15-year mandatory minimum
sentence. See 18 U.S.C. § 924(e). Because Watkins had three prior convictions—for arson,
felony escape, and voluntary manslaughter—the district court imposed a sentence of 185 months,
which was at the lower end of the guidelines range, based on Watkins’ status as an armed career
criminal. On direct appeal, this Court affirmed the district court’s judgment, and the Supreme
Court denied Watkins’ petition for a writ of certiorari. Watkins v. United States, 549 U.S. 1259
(2007).
II.
In 2011, Watkins filed a motion to vacate, set aside, or correct her sentence pursuant to
28 U.S.C. § 2255 on the grounds that her arson conviction did not qualify as a “violent felony”
1
Before the Supreme Court’s ruling in Johnson, Watkins argued that one of her prior convictions—for
felony escape under Tennessee law—did not constitute a “violent felony” under ACCA’s residual clause in light of
the Supreme Court’s holding in Descamps v. United States, 133 S. Ct. 2276 (2013), and this Court’s holding in
United States v. Covington, 738 F.3d 759 (6th Cir. 2014). Watkins also noted that a ruling in Johnson “could further
undermine the validity of [her] sentence.” After Johnson was decided, Watkins filed a motion to stay the issuance
of an order in this case and requested leave to file a supplemental brief regarding Johnson’s impact on her claims.
We granted the motion, and both Watkins and the government filed supplemental briefs.
2
In light of Watkins’ previous § 2255 petition, discussed below, and her extensive argumentation in support
of granting her motion for authorization pursuant to § 2255(h)(2), we construe the instant motion as a motion for
authorization to file a “second” or “successive” habeas petition.
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under ACCA. The district court denied the motion as untimely under § 2255’s one-year statute
of limitations. See 28 U.S.C. § 2255(f).
In 2014, Watkins filed the instant motion before the district court, arguing that in light of
Descamps, her felony escape conviction did not qualify as a predicate offense under ACCA.
Noting that Watkins had previously filed an untimely § 2255 petition, the district court
transferred the motion to this Court, pursuant to 28 U.S.C. § 1631, for consideration as to
whether authorization of a second or successive § 2255 petition was warranted. See 28 U.S.C.
§ 2255(h); 28 U.S.C. § 2244(b)(3) (requiring that applicants seeking to file a second or
successive § 2255 petition first obtain authorization from the appropriate court of appeals).
Watkins’ motion was docketed in this Court on January 16, 2015. After the parties filed their
respective briefs, the Supreme Court issued its decision in Johnson.
As the Johnson Court explained, under ACCA, a defendant who “has three or more
earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’” is subject to a “prison term
[of] a minimum of 15 years and a maximum of life.” 135 S. Ct. at 2555 (citations omitted).
ACCA defines the term “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another;3 or
(ii) is burglary, arson, or extortion, involves use of explosives,4 or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). “The closing words of this definition, italicized
above, have come to be known as [ACCA’s] residual clause.” Johnson, 135 S. Ct. at 2556.
Relevant to this case, the Johnson Court concluded, after several years of attempting to clarify
the scope of the residual clause, that the terms of the residual clause were so vague that they
“denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges.” Id. at 2557;
see also id. at 2560 (“Nine years’ experience trying to derive meaning from the residual clause
3
We have referred to this sub-section of the statute as the use of physical force clause. United States v.
Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).
4
This is commonly known as the enumerated offenses clause. United States v. Taylor, 800 F.3d 701,
719 (6th Cir. 2015).
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convinces us that we have embarked upon a failed enterprise.”). Thus, in light of the widespread
“confusion and uncertainty” generated by the vagueness of the provision’s terms, the Court held
that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act
violates the Constitution’s guarantee of due process.” Id. at 2562–63.
After Johnson was decided, Watkins filed a motion requesting a stay and seeking leave to
file a supplemental brief addressing Johnson’s impact on her claim that her felony escape
conviction no longer qualifies as a predicate offense under ACCA. We granted the motion. In
its supplemental brief, the government asserts that under Johnson—which overruled previous
Supreme Court decisions and held that ACCA’s residual clause is void for vagueness—Watkins
has made a prima facie showing that she meets each of § 2255(h)(2)’s gatekeeping
requirements.5 On this basis, the government asserts that Watkins’ motion for authorization to
file a second or successive § 2255 petition should be granted.6
III.
A court of appeals may authorize a second or successive § 2255 petition where the
applicant makes a prima facie showing that her proposed claim is based 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)(2); see also Liddell, 722 F.3d at 738. A prima
facie showing, in this context, simply requires that the applicant make a showing of possible
merit sufficient to “warrant a fuller exploration by the district court.” In re Lott, 366 F.3d 431,
5
This Court has held that the “thirty-day clock” to grant or deny authorization to file a second or successive
§ 2255 petition under 28 U.S.C. § 2244(b)(3)(D) “will start running when the matter is submitted to the motions
panel.” In re Sims, 111 F.3d 45, 48 n.1 (6th Cir. 1997). However, we have also concluded that § 2244’s 30-day
“‘provision is hortatory or advisory rather than mandatory[,]’” In re McDonald, 514 F.3d 539, 542 n.2 (6th Cir.
2008) (quoting In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997)), and that “it will not always be possible to rule [on
a motion] within thirty days.” Siggers, 132 F.3d at 336. Due to the nature of Watkins’ claims, the timing of her
motion requesting a stay (which was filed fewer than 30 days after this case was assigned to a motions panel), and
the complex issues raised in the parties’ supplemental briefs, this motion warranted more than 30 days’
consideration.
6
As noted by the government, a person convicted of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) normally faces a maximum sentence of ten-years’ imprisonment. See 18 U.S.C. § 924(a)(2).
Because Watkins has apparently already served more than ten years in prison, and her “[Johnson-based] claim
appears to have merit,” the government has urged this Court to “expeditiously authorize [Watkins] to file her
successive § 2255 petition” in order to permit merits review by the district court. Gov’t Suppl. Br. at 9.
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432–33 (6th Cir. 2004)) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997));
see also In re Williams, 330 F.3d 277, 281 (4th Cir. 2003) (collecting cases).
Several of our sister circuits addressing the issue of whether Johnson may be used as a
basis to authorize a second or successive § 2255 petition have concluded that Johnson announced
a new rule of constitutional law. See, e.g., In re Williams, 806 F.3d 322, 324 & n.6 (5th Cir.
2015) (“Williams’s first hurdle, one he easily clears, is whether Johnson established a new rule
of constitutional law.”) (“Four of our sister circuits have recently addressed Johnson’s
retroactivity, and all agreed that it is a new rule of constitutional law.”); In re Gieswein, 802 F.3d
1143, 1146 (10th Cir. 2015) (“We first address whether Johnson announced a new rule of
constitutional law, and we conclude that it did.”); Price v. United States, 795 F.3d 731, 732–33
(7th Cir. 2015) (holding that the applicant “easily me[t]” § 2255(h)(2)’s gatekeeping
requirements because “Johnson announces a new rule” and “the new rule that it announces is one
of constitutional law”). For the following reasons, we agree.
“‘[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) (emphasis in original) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). Accordingly,
“[t]he explicit overruling of an earlier holding no doubt creates a new rule[.]” Saffle v. Parks,
494 U.S. 484, 488 (1990). The rule announced by Johnson is new because, in reaching its
holding that ACCA’s residual clause is void for vagueness, the Supreme Court explicitly
overruled its earlier rulings to the contrary. Johnson, 135 S. Ct. at 2563 (“We hold that imposing
an increased sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process. Our contrary holdings in James [v. United States,
550 U.S. 192 (2007)] and Sykes [v. United States, 131 S. Ct. 2267 (2011)] are overruled.”).
In the same vein, the Johnson rule was “previously unavailable” to Watkins, see Price, 795 F.3d
at 733, because, until June 2015, the Johnson rule was proscribed, rather than dictated, by
existing Supreme Court precedent. See James, 550 U.S. at 210 n.6 (“While ACCA requires
judges to make sometimes difficult evaluations of the risks posed by different offenses, we are
not persuaded by [the dissent’s] suggestion . . . that the residual provision is unconstitutionally
vague.”); Sykes, 131 S. Ct. at 2277, 2284 (affirming the court of appeals’ judgment that felony
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vehicle flight constituted a violent felony under ACCA’s residual clause over the dissent’s
argument that the Court “should admit that ACCA’s residual provision is a drafting failure and
declare it void for vagueness”). Finally, Johnson based its holding on the Fifth Amendment’s
guarantee that “[n]o person shall . . . be deprived of life, liberty, or property, without due process
of law.”
Johnson, 135 S. Ct. at 2556 (alterations in original).
Thus, Johnson’s rule is
constitutional because it is derived from the Fifth Amendment’s prohibition against the
enforcement of any criminal law that is “so vague that it fails to give ordinary people fair notice
of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. (citing
Kolender v. Lawson, 461 U.S. 352, 357–58 (1983)). For these reasons, we conclude that
Johnson announced a new rule of constitutional law that was previously unavailable to Watkins.
Despite the apparent consensus that Johnson announced a new rule of constitutional law,
the circuits have split regarding a separate gatekeeping requirement under § 2255(h)(2):
retroactivity on collateral review. Compare Williams, 806 F.3d at 325–26 (concluding that
Johnson does not apply retroactively because it does not announce a substantive rule of
constitutional law); In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) (holding that Johnson does
announce a substantive rule of constitutional law, but “[n]o combination of holdings of the
Supreme Court ‘necessarily dictate’ that Johnson should be applied retroactively on collateral
review”); Gieswein, 802 F.3d at 1147 (declining to “engage in the difficult legal analysis that can
be required to determine questions of retroactivity in the first instance” and determining that no
Supreme Court holding requires, “by strict logical necessity,” that Johnson apply retroactively),
with Woods v. United States, 805 F.3d 1152, 1153–54 (8th Cir. 2015) (per curiam) (noting the
circuit split and holding, based on the government’s concession that Johnson applies
retroactively, that the petitioner made a prima facie showing that his motion satisfied
§ 2255(h)(2)); Pakala v. United States, 804 F.3d 139, 139–40 (1st Cir. 2015) (per curiam)
(holding that the petitioner made the prima facie showing required under § 2255(h)(2) based on
the government’s “conce[ssion] that Johnson announced a new rule of constitutional law that
was previously unavailable . . . [and] made retroactive by the Supreme Court”) (footnote
omitted); Price, 795 F.3d at 734 (holding that because Johnson’s rule “prohibit[s] ‘a certain
category of punishment for a class of defendants because of their status’ . . . [t]here is no
escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically
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retroactive to cases on collateral review”). Because § 2255(h)(2) dictates that a court may only
authorize a second or successive § 2255 petition where the new rule of constitutional law has
been “made retroactive to cases on collateral review by the Supreme Court,” we must next
address the issue of retroactivity.
The Supreme Court has held that “[n]ew substantive rules generally apply retroactively.”
Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (emphasis in original). By contrast, new
procedural rules “generally do not apply retroactively” unless they fall within the “small set of
watershed rules . . . implicating the fundamental fairness and accuracy of the criminal
proceeding.” Id. (quoting Saffle, 494 U.S. at 495) (internal quotation marks omitted). This
substantive versus procedural dichotomy was most famously articulated in Justice O’Connor’s
plurality opinion in Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Court noted that due to
the disruptive nature of habeas proceedings, which “provid[e] an avenue for upsetting judgments
that have become otherwise final[,]” new constitutional rules “generally should not be applied
retroactively to cases on collateral review.” 489 U.S. at 305–06 (citation and quotation marks
omitted). Thus, despite the “broad scope of constitutional issues cognizable on habeas,” the
Supreme Court recognizes only two narrow exceptions to its “general [principle] of
nonretroactivity for cases on collateral review.” Id. at 306–07. The first exception is for
substantive rules which “place[] ‘certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe[,]’” id. at 307 (quoting Mackey v.
United States, 401 U.S. 667, 692 (1971)), or “prohibit[] a certain category of punishment for a
class of defendants because of their status or offense.” Beard v. Banks, 542 U.S. 406, 416–17 &
n.7 (2004) (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002)). The second exception is for “watershed” rules of
criminal procedure that are “implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307,
311 (citations omitted); see also Beard, 542 U.S. at 417.
In her concurrence in Tyler v. Cain, 533 U.S. 656 (2001), Justice O’Connor explained
that even where the Supreme Court does not expressly hold that a new rule applies retroactively,
the Court “may ‘ma[k]e’ a new rule retroactive through multiple holdings that logically dictate
the retroactivity of the new rule.” Id. at 668 (alteration in original). For this to occur, “the
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holdings must dictate[,]” i.e., “permit no other conclusion than that the rule is retroactive.” Id. at
669 (emphasis in original). In the context of substantive rules that “place[] ‘certain kinds of
primary, private individual conduct beyond the power of the criminal law-making authority to
proscribe[,]” “it is relatively easy to demonstrate the required logical relationship[.]” Id. (citation
omitted). Thus, “[w]hen 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.” Id.7
In determining whether a rule applies retroactively, “[t]he Teague inquiry is conducted in
three steps.” O’Dell v. Netherland, 521 U.S. 151, 156 (1997). The first two steps require the
reviewing court to determine the date on which the petitioner’s conviction became final and
whether the constitutional rule at issue is new. Id. In the instant case, Watkins’ conviction
became final when the Supreme Court denied her petition for a writ of certiorari in 2007.
See Beard, 542 U.S. at 411 (noting that a conviction becomes final when a timely-filed petition
for a writ of certiorari has been denied). Further, as explained above, the constitutional rule
announced in Johnson is new in that it was not dictated by earlier Supreme Court precedent and
instead overruled contrary holdings. Thus, we must turn our attention to Teague’s third and final
inquiry: whether Johnson’s rule falls within one of the narrow exceptions to the principle of
non-retroactivity because it is (1) a watershed rule of criminal procedure or (2) a substantive rule
that “forbid[s] punishment of certain primary conduct” or “prohibit[s] a certain category of
punishment for a class of defendants because of their status or offense.” Beard, 542 U.S. at 416–
17 & n.7 (citations and internal quotation marks omitted); see also O’Dell, 521 U.S. at 156–57.
Both the government and Watkins contend that Johnson announced a substantive rule that the
7
Although both Teague and Tyler discussed retroactivity principles in the context of the state-prisoner
corollary of § 2255(h)(2), the appellate courts have consistently applied these holdings to federal habeas cases
involving constitutional rules for which the Supreme Court did not expressly rule on the issue of retroactivity.
See, e.g., In re Mazzio, 756 F.3d 487, 489–91 (6th Cir. 2014) (holding that the procedural rule announced in Alleyne
v. United States, 133 S. Ct. 2151 (2013), did not apply retroactively); Bryant v. Warden, FCC Coleman-Medium,
738 F.3d 1253, 1277–78 (11th Cir. 2013) (holding that the substantive rule announced in Begay v. United States,
553 U.S. 137 (2008), applied retroactively); Jones v. United States, 689 F.3d 621, 624–25 (6th Cir. 2012) (same);
United States v. Mathur, 685 F.3d 396, 397–402 (4th Cir. 2012) (rejecting the petitioner’s argument that the
Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356 (2010), applied retroactively); In re Sparks, 657 F.3d
258, 260–62 (5th Cir. 2011) (per curiam) (holding that the substantive rule announced in Graham v. Florida,
560 U.S. 48 (2010), applied retroactively); see also Price, 795 F.3d at 734 (collecting cases).
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Supreme Court has made retroactive on collateral review because Johnson’s holding prohibits a
certain category of punishment for a class of defendants based on their status: increased
sentences for those defendants “whose predicate offenses only qualify as such under the residual
clause.” Gov’t Suppl. Br. at 8; see also Def. Suppl. Br. at 9–10. Like the Seventh Circuit, we
agree with this conclusion.
Johnson held that “imposing an increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution’s guarantee of due process.” 135 S. Ct. at
2563. Thus, although an increased sentence can still be imposed under ACCA’s use of physical
force clause or enumerated offenses clause, id., a defendant cannot be subjected to ACCA’s
15-year mandatory minimum if his or her predicate offenses would only qualify as such under
the voided residual clause. See id. at 2560 (“Invoking so shapeless a provision to condemn
someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due
process.”).
Because Johnson prohibits the imposition of an increased sentence on those
defendants whose status as armed career criminals is dependent on offenses that fall within the
residual clause, we agree with the Seventh Circuit that “[t]here is no escaping the logical
conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on
collateral review.” Price, 795 F.3d at 734.
We also reject the assertions advanced by our sister circuits that have sought to avoid this
conclusion. The Eleventh Circuit, in accordance with the Seventh Circuit (and now this Circuit),
held that Johnson announced a substantive rule of constitutional law. Rivero, 797 F.3d at 989.
However, it eluded the conclusion that the Supreme Court has made Johnson categorically
retroactive by maintaining that Johnson’s substantive rule “neither prohibits Congress from
punishing a criminal who has a prior conviction for attempted burglary nor prohibits Congress
from increasing that criminal’s sentence because of his prior conviction.” Id. at 990. Taking this
rationale a step further, the Fifth Circuit held that Johnson does not announce a substantive rule
at all because “[a]fter Johnson, defendants . . . may . . . face a fifteen year sentence,” “Congress
is not ‘deprived’ of th[e] power” to impose a longer sentence based on predicate offenses of its
choosing, and “Congress could impose the exact punishment [imposed] in Johnson if Congress
did so with specific, not vague, language.” Williams, 806 F.3d at 325–26 (emphasis in original);
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see also Rivero, 797 F.3d at 991 (stating that “Congress could impose the punishment in Johnson
if Congress did so with specific, not vague, language”) (emphasis in original). These contentions
miss the point. Indeed, Congress could have elected to draft ACCA’s increased sentencing
provision to apply to any defendant with three or more felonies of any type. See James, 550 U.S.
at 230 (Scalia, J., dissenting) (“If Congress wanted . . . [to] subject[] all repeat offenders to a
15-year mandatory minimum prison term[,] it could very easily have crafted a statute which said
that. ACCA, with its tedious definition of ‘violent felony,’ was obviously not meant to have
such an effect.”) And, hypothetically, Congress could amend ACCA to encompass each of
Watkins’ predicate offenses (and unlawful possession of a short-barreled shotgun8 and attempted
burglary9 and robbery10), with specific enough language to pass constitutional muster, within the
next week. However, Congress’ ability to amend ACCA in a manner that would constitutionally
impose the category of punishment Watkins seeks to challenge is irrelevant to the retroactivity
analysis, and neither the Fifth Circuit nor the Eleventh Circuit cites any authority for
sidestepping the retroactive application of a substantive rule on the grounds that the law which
the rule rejected could be amended at a later date.11 Because Johnson announced a substantive
rule that prohibits the imposition of ACCA’s 15-year mandatory minimum sentencing provision
on defendants whose status as armed career criminals depends on application of the
unconstitutionally vague residual clause, we conclude that the Supreme Court has made
Johnson’s rule categorically retroactive to cases on collateral review.
CONCLUSION
For the reasons stated in this opinion, we find that Watkins has made a prima facie
showing that her claim is based on “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” Accordingly, we
hereby GRANT her motion for authorization to file a second or successive § 2255 petition.
8
See Johnson, 135 S. Ct. at 2556.
9
See Rivero, 797 F.3d at 988–89.
10
11
See Williams, 806 F.3d at 324.
As to these points specifically, we agree with the dissent in Rivero. See 797 F.3d at 999–1000 (Pryor, J.,
dissenting); see also id. at 1000 (“The majority neither cites any authority nor provides any logical explanation why
a future Congress’s hypothetical actions could affect retroactivity today. That’s because there is none.”).
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