United States Court of Appeals

For the Eighth Circuit

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No. 15-3531

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Charles Woods

lllllllllllllllllllllPetitioner

v.

United States of America

lllllllllllllllllllllRespondent

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 5, 2015

 Filed: November 20, 2015

[Published]

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Before BENTON, BYE, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Charles Woods seeks authorization to file a successive 28 U.S.C. § 2255

motion, asserting the Supreme Court established a new rule made retroactive when

it held in Johnson v. United States that the “residual clause” of the Armed Career

Criminal Act (ACCA) is unconstitutional. __ U.S. __, 135 S. Ct. 2551 (2015). The
government joins his motion. We grant Woods authorization to file a successive

§ 2255 petition.

In October 2002, a jury convicted Woods of being a felon in possession of a

firearm and a felon in possession of ammunition, both in violation of 18 U.S.C

§ 922(g)(1), and a felon in possession of a firearm with an obliterated serial number,

in violation of 18 U.S.C. § 922(k). While Woods’s conviction under § 922(g)(1)

would typically carry a maximumsentence of ten years, Woods had three convictions

that qualified as “violent felonies” under the ACCA and was therefore subject to a

fifteen-year mandatory minimum sentence under 18 U.S.C. § 924(e). The district

court sentenced Woods to 235 months.

One ofWoods’s three ACCA predicate offenses was a conviction for attempted

burglary, which at the time qualified as a violent felony under the ACCA’s residual

clause because it created a “serious potential risk of physical injury to another.” 18

U.S.C. § 924(e). In Johnson, however, the Supreme Court held the ACCA’s residual

clause was unconstitutionally vague. 135 S. Ct. at 2557. The government concedes

that under Johnson, Woods’s conviction for attempted burglary is no longer a

predicate offense under the ACCA.

We may authorize a second or successive petition under § 2255 if the petition

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). The petitioner must make a prima facie showing that his petition falls

within the scope of § 2255(h)(2). Johnson v. United States, 720 F.3d 720 (8th Cir.

2013). A prima facie showing is “simply a sufficient showing of possible merit to

warrant a fuller exploration by the district court.” Id. (quoting Bennett v. United

States, 119 F.3d 468, 469 (7th Cir. 1997)).

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Every circuit confronted with the issue of whether the Supreme Court’s prior

holdings have made Johnson retroactive for purposes of § 2255(h)(2) has taken a

different approach. See Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015)

(holding Johnson announced a new substantive rule and prior Supreme Court

holdings make it retroactive); In re Gieswein, 802 F.3d 1143, 1148–49 (10th Cir.

2015) (holding the Supreme Court has not held in a case or a combination of cases

that the rule in Johnson is retroactive to cases on collateral review, and therefore it

has not “made” Johnson retroactive);In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015)

(holding Supreme Court “made” new substantive rules retroactive in Schriro v.

Summerlin, 542 U.S. 348, 351 (2004), but finding Johnson did not announce a new

substantive rule under Summerlin); Pakala v. United States, __ F.3d __, No.15-1799, 

2015 WL 6158150, at *1 (1st Cir. Oct. 20, 2015) (per curiam) (noting the circuitsplit,

declining to address the issue, and finding petitioner made prima facie showing of

retroactivity where government conceded retroactivity).

In this Circuit, we have previously accepted the government’s concession of

retroactivity of a new Supreme Court rule as a sufficient prima facie showing to allow

a second or successive § 2255 petition. Martin v. Symmes, 782 F.3d 939, 945 (8th

Cir. 2015); Johnson, 720 F.3d at 721 (“The government here has conceded that Miller

is retroactive and that Mr. Johnson may be entitled to relief under that case, and we

therefore conclude that there is a sufficient showing here to warrant the district court's

further exploration of the matter.”). This is the approach the First Circuit has taken

as well. Pakala, 2015 WL 6158150 at *1.

Here, the United States concedes that Johnson is retroactive, and it joins

Woods’s motion. Based on the government’s concession, we conclude that Woods

has made a prima facie showing that his motion contains “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was

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previously unavailable.” 28 U.S.C. § 2255(h)(2). Therefore, we grant Woods

authorization to file a successive § 2255 motion.

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