In re: Larry Boyett, Jr.
Per Curiam ORDER: we GRANT Boyett's motion [5359032-2], and authorize the district court to consider a second or successive habeas petition. Eric L. Clay, Circuit Judge; John M. Rogers, Circuit Judge and Amul R. Thapar, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0005n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: LARRY BOYETT, JR.,
Jan 07, 2016
DEBORAH S. HUNT, Clerk
*** *** *** ***
Before: CLAY and ROGERS, Circuit Judges; and THAPAR, District Judge.*
PER CURIAM. Last year, the Supreme Court held that the Due Process Clause
forbids a court from using use the Armed Career Criminal Act’s residual clause to increase a
defendant’s sentence. See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Last
month, this Circuit held that Johnson announced a “new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” In re Watkins, No. 15-5038, 2015 WL 9241176, at *1 (6th Cir. Dec. 17, 2015)
(quoting 28 U.S.C. § 2255(h)(2)). Larry Boyett, a federal inmate who was sentenced under
the Act, now wishes to file a second or successive habeas petition in light of Johnson.
Hon. Amul R. Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
Before filing a second or successive petition under § 2255, a petitioner must first
obtain certification from a panel of “the appropriate court of appeals,” which in this case is
the Sixth Circuit. See 28 U.S.C. § 2255(h). We may certify a second or successive petition
if it has identified, among other things, “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable [to the
petitioner].” Id. § 2255(h)(2).
Here, Boyett and the government both agree that Johnson announced such a rule.
And this Court’s decision in Watkins—a published decision—makes clear that Johnson did
precisely that. See Watkins, 2015 WL 9241176 at *7. Thus, we hereby GRANT Boyett’s
motion and authorize the district court to consider a second or successive habeas petition.
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