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 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 pathbreaking decisions impacting criminal prosecutions includes a full retreat from 

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2015

Lyle W. Cayce

Clerk

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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.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 serious 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 challenge 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. § 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). 2 18 U.S.C. § 924(e)(2)(B) (emphasis added).

3 135 S. Ct. 2551 (2015).

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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 “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 precedent 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 Gieswein, No. 15-6138, 

2015 WL 5534388 at *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, and brackets omitted).

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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 exception, 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, Johnson 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 prohibiting 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.

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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 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.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. 302(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. 

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IV. 

In 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 granted 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 decision, 

Bailey v. United States,26 interpreting the word “use” in a criminal statute, 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 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, 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.

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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.”27 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,28

facilitating a remand for a showing of actual innocence. Rather, Johnson

actually overruled 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 exploration 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, his motion for authorization to 

file a successive 28 U.S.C. § 2255 petition is DENIED.

 27Bousley 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. 

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