### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 30731

In re: ANTHONY ALLEN WILLIAMS ,
Movant

Motion for an order authorizing the United States District Court for the Western District of Louisiana, Shreveport to consider a successive 28 U.S.C. § 2255 motion

Before HIGGINBOTHAM, SMITH, and OWEN , Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge : Two distinct but kindred doctrines, each a marker of judicial r ole, 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 sou nd 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 United States Court of Appeals Fifth Circuit 

### FILED November 12, 2015 Lyle W. Cayce Clerk Case: 15-30731 Document: 00513268170 Page: 1 Date Filed: 11/12/201515

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2 claimed authority to make its decisions prospective only, tur ning to limiting habeas petitioners to the law in place when they exhausted direct appeals, a turn reinforced by Congress. 1
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

– 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 seriou s potential risk of physical injury to another.” 2 The Supreme Court in Johnson v. United States found the “residual clause” of the ACCA to be unconstitutionally vague. 3 Williams now seeks leave to file a successive writ under 28 U.S.C. § 2255 to challeng e his sentence, arguing that one of his predicate offenses

– the robbery

– 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

1 Teague v. Lane , 489 U.S. 288 (1989) ; 28 U.S.C. § 2255(h)(2); 28 U.S.C. § 22 44(b)(2); Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law , 79 H ARV

. L. R EV . 56 (1965)

. 2 18 U.S.C. § 924(e)(2)(B) (emphasis added).
3 135 S. Ct. 2551 (2015)

. Case: 15-30731 Document: 00513268170 Page: 2 Date Filed: 11/12/201515

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3 new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, tha t 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 “prima facie showing” that his application relies on a new rule of constitutional law retroactively applicable. 4 A “prima facie showing” is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” 5
III. A. Williams’s first hurdle, one he easily clears, is whether Johnson established a new rule of constitutional law. 6 “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 pre cedent existing at the time the defendant’s conviction became final.” 7 In holding the residual clause of the ACCA unconstitutionally

vague, Johnson did not follow precedent. Rather, the Court overruled two of

4 28 U.S.C. § 2244 (b)(3)(C); see also In Re Simpson , 555 F. App’x 369 (5th Cir. 2014) (describing prima facie standard).
5 Reyes

- Requena v. United States, 243 F.3d 893, 897

- 99 (5th Cir. 2001) (holding that prima facie standard is incorporated into § 2255).
6 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 G ieswein , No. 15

- 6138, 2015 WL 5534388 a t *2 (10th Cir. Sept. 21, 2015); Pakala v. United States , No. 15

- 1799, 2015 WL 6158150, at *1 (1st Cir. Oct. 20, 2015)

. 7 Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (citation, internal quotation marks, an d brackets omitted). Case: 15-30731 Document: 00513268170 Page: 3 Date Filed: 11/12/201515

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4 its earlier cases. 8 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

. 9 The first is “a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” 10 This exception is limited in scope, 11 applying only to those cases “implicating the fundamental fairness and accuracy of the criminal proceeding” or “implicit in the concept of ordered liberty.” 12 In providing guidance as to what might fall within this exce ption, the Court has “repeatedly
referred to the rule of Gideon v. Wainwright ,” as the paradigmatic example of
a watershed rule. 13 Johnson plainly is not such a watershed rule and no one seriously argues otherwise. To be available to Williams, then, Johnso n must fall within the second exception to Teague

– as a “[n]ew substantive rule[].” 14 Under this exception, substantive rules “should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibitin g a certain category of punishment for a class of defendants because of their status

8 See 135 S. Ct. at 2562

– 63.
9 489 U.S. 288 (1989)

. 10 Schriro v. Summerlin, 542 U.S. 348, 351.

11 Beard v. Banks , 542 U.S. 406, 417 (2004).
12 Id

. ; Teague, 489 U.S. at 307 (quotation omitted).
13 Banks
, 542 U.S. at 417.

14 Id. Case: 15-30731 Document: 00513268170 Page: 4 Date Filed: 11/12/201515

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5 or offense.” 15 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 prio r 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. 16 Rules that “deprive[] the State of the power to impose a certain penalty” are retroactive, 17 but rules that merely alter the sentencing
structure under which a penalty is imposed are not. 18 After Johnson , defendants similar to Williams may, within the bounds of the constitution , face a fifteen year sentence

– Congress is not “deprived” 19 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.

15 Penry v. Lynaugh , 492 U.S. 30 2 (1989), overruled on other grounds by Atkins v. Virginia , 536 U.S. 304 (2002).
16 542 U.S. at 351

- 52 (internal citations omitted).
17 Penry , 492 U.S. at 330.
18 See Saffle v. Parks , 494 U.S. 484 (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 .)

. 19 Penry , 492 U.S. at 330. Case: 15-30731 Document: 00513268170 Page: 5 Date Filed: 11/12/201515

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6 IV.
I n so deciding, we disagree with recent decisions in two of our sister
Circuits. In Price v. United States , 20 the Seventh Circuit concluded that Price had made a prima facie showing for the collateral reach of Johnson , granting him leave to file a successive writ. 21 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.” 22 But Congress could impose the exact punishment in
Johnson if Congress did so with specific, not vague, language. Most recently, the First Circuit gran ted a similarly situated prisoner leave to file a successive writ under § 2255 in a brief opinion applying the prima facie standard. 23 Our decision and reasoning here align with the majority in the recent Eleventh Circuit decision, In re Rivero. 24 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. 25 In Bousley , the Court determined that an earlier decisio n , Bailey v. United States , 26 interpreting the word “use” in a criminal statu t e , was available on collateral review, despite the fact that Congress later amended

20 795 F.3d 731

. 21 Id.
22 Id . at 734

. 23 Pakala v. United States , No. 15

- 1799, 2015 WL 6158150 (1st Cir. 2015).
24 797 F.3d 986, 989 (11th Cir. 2015) . The Tenth Circuit also recently denied a successive writ under Johnson , although our colleagues there would await S upreme Court holdings that “by strict logical necessity, dictate that the Supreme Court, itself, has made a new rule re troactive on collateral review.” In re Gieswein , No. 15

- 6138, 2015 WL 5534388 (10th Cir. 2015) at *3 (internal citations omitted).
25 797 F.3d at 1000.
26 516 U.S. 137. Case: 15-30731 Document: 00513268170 Page: 6 Date Filed: 11/12/201515

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7 the statute to criminalize exactly the conduct at issue in the case. But Bousley
was decided co mpletely 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 statu t e enacted by Congress.” 27 But unlike Bailey , Johnson did not interpret the ACCA in service of Congressional intent

– it excised as unconstitutional an entire prov ision 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 , 28 facilitating a remand for a showing of actual innocence. Rather, Johnson actually over ruled two of the Court’s earlier cases , 29 clearly differentiating it from Bailey , and making a “new rule,” firmly within the Teague framework.
V.
It is true that Williams need only demonstrate a “ sufficient showing of possible merit to warrant a fuller ex ploration by the district court ” to obtain leave to pursue his successive writ

. 30 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, h is motion for authorization to file a successive 28 U.S.C. § 2255 petition is DENIED

.

27 Bousley v. United States, 523 U.S. 614, 620 (1998)

. 28 Id

. at 625.
29 See 135 S. Ct. at 2562

– 63.
30 Reyes

- Requena, 243 F.3d at 897

- 99

. Case: 15-30731 Document: 00513268170 Page: 7 Date Filed: 11/12/2015