United States Court of Appeals

For the Eighth Circuit

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No. 15-3188

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Carl Lee Richardson

lllllllllllllllllllllPetitioner

v.

United States of America

lllllllllllllllllllllRespondent

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: November 24, 2015

 Filed: December 16, 2015 

[Unpublished]

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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM

Carl Richardson moves for authorization to file a successive motion to vacate,

set aside, or correct his sentence under 28 U.S.C. § 2255. Richardson seeks to present 

new claims based on Johnson v. United States, 135 S. Ct. 2551 (2015), which held

that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. 

He asserts that the sentence imposed by the district court in his case, in reliance on
the residual clause, exceeds the statutory maximum penalty in light of Johnson. 

Further, Richardson contends that Johnson applies to the district court findings that

he was a career offender and armed career offender for purposes of U.S.S.G. §§ 4B1.1

and 4B1.4(b)(3)(B).

The government concedes that Johnson may apply retroactively in collateral

proceedings to Richardson’s § 924(e) claim, and that Richardson may be entitled to

relief under that case. The government states however that Johnson does not apply

to sentencing guidelines claims on collateral review and asks that the motion be

denied to the extent that it challenges the sentencing guidelines calculations.

We accept 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. Woods v. United States, No. 15-3531, 2015 WL 7351939 (8th Cir. Nov. 20,

2015) (per curiam).

However, the government has not conceded that the rule in Johnson would

impact Richardson’s sentencing guidelines calculations, and we conclude that he has

not made the requisite prima facie showing under § 2255(h)(2) with respect to this

claim, as any extension of the rule in Johnson would not be a new substantive rule

under Teague v. Lane, 489 U.S. 288 (1989).

Accordingly, the motion for authorization with respect to Richardson’s

§ 924(e) claim is granted. However, the motion for authorization is denied to the

extent that it seeks to challenge his sentencing guidelines calculations. 

COLLOTON, Circuit Judge, concurring.

This panel is constrained by circuit precedent, Woods v. United States, 805

F.3d 1152 (8th Cir. 2015) (per curiam), to grant Carl Richardson’s motion for

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authorization to file a successive motion challenging his status as an armed career

criminal under 18 U.S.C. § 924(e) based on Johnson v. United States, 135 S. Ct. 2551

(2015). After the motion is filed, however, the district court “must not defer” to this

court’s “preliminary determination” in granting authorization. Kamil Johnson v.

United States, 720 F.3d 720, 721 (8th Cir. 2013) (per curiam) (internal quotation

omitted). That admonition is particularly appropriate here, because Woods relied

exclusively on a concession by the government and conducted no analysis of whether

the Supreme Court’s recent decision in Johnson announced “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court.” 28 U.S.C. § 2255(h). Three circuits have concluded that movants relying on

Johnson failed to make even a prima facie showing that the statutory requirements

are satisfied. See In re Williams, 806 F.3d 322, 325-26 (5th Cir. 2015); In re

Gieswein, 802 F.3d 1143, 1147 (10th Cir. 2015) (per curiam); In re Rivero, 797 F.3d

986, 989-90 (11th Cir. 2015) (per curiam). But see Price v. United States, 795 F.3d

731, 734 (7th Cir. 2015).

The district court—unencumbered by the “stringent time limit” that applies to

the court of appeals, see Tyler v. Cain, 533 U.S. 656, 664 (2001)—should give due

consideration to the views of the other circuit courts. The district court also should

consider whether Richardson’s prior convictions qualify as violent felonies under

subsections of § 924(e) other than the residual clause. The government’s position is

not conclusive, see United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012), and

“the district court must dismiss the motion that we have allowed the applicant to file,

without reaching the merits of the motion, if the court finds that the movant has not

satisfied the requirements for the filing of such a motion.” Kamil Johnson, 720 F.3d

at 721 (internal quotation omitted). See Menteer v. United States, No. 15-3090, 2015

WL 7783653 (8th Cir. Dec. 3, 2015).

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