PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 15

- 2883

_____________

In Re: THOMAS F. HOFFNER, JR.,
Petitioner

______________

On Application for Leave to File a
Successive Habeas Petition pursuant to 28 U.S.C. § 2255(h) (2)
related to E.D. Pa. No. 2

- 00

- cr

- 00456 before the Honorable Harvey Bartle, III, District Judge

_____________

Argued: July 18, 2017

______________

Before: McKEE, AMBRO and RESTREPO, Circuit Judges

.

(Filed: September 7, 2017 )

______________

L isa B. Free land [ARGUED]
Office of Federal Public Defender 1500 Liberty Center 1001 Liberty Avenue Pittsburgh, PA 152222 Counsel for Petitioner

Louis D. Lappen
Robert A. Zauzmer [ARGUED] Emily McKillip Office of United States Attorney
615 Chestnut Street , Suite 1250 Philadelphia, PA 19106

Counsel for Respondent

______________

OPINION OF THE COURT

______________

RESTREPO

, Circuit Judge

.

In Johnson v. United States

, 135 S. Ct. 2551 (2015 )

, the Supreme Court held that the residual clause of the Armed
Career Crimi nal Act (ACCA) is unconstitutionally vague

. An identical residual clause existed until recently in the Federal Sentencing Guidelines’ career offender guideline, U.S.S.G. § 4B1.2(a)(2). Petitioner Thomas Hoffner was sentenced as a career offe nder based on this residual clause in 2002

. He
seeks our authorization to challenge his sentence via a successive habeas corpus p etition, 28 U.S.C. § 2255(h)(2)

.

The ultimate question is whether Hoffner has a meritorious vagueness claim under Johnson

. But t hat is not the question before us now

. The only issue we must decide is
whether Hoffner has made a “ prima facie showing

, ”3 28 U.S.C. § 2244 (b)(3)(C), of the pre

- filing requirements for

a success ive habeas corpus petition

. To answer th is seemingly s imple question, we must cover some rocky
terrain. We consider Johnson and its progeny , as well as the

pre

- filing requirements for a second or successive habeas petition. W e conclude that Hoffner has made a prima facie showing

, and so w e will authorize hi s successive habeas petition

. 1

I

. Factual and Procedural Background

In 2002, Hoffner was convicted of conspiracy to distribute methamphetamine, 21 U.S.C. § 846, distribution of methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use
of a communication facility, 21 U.S.C. § 843(b). At sentencing, t he District Court applied the career offender guideline , U.S.S.G. § 4B1. 1

, based up on two prior
convictions Hoffner incurred in Pennsylvania state court in

t he 1980s

. The first was for simple assault and the second

was for b urglary, robbery and conspiracy. He was sentenced

to twenty years’ imprisonment and five years’ supervised
release. 2

1 For ease of reference, we use “habeas corpus petition” or “ habeas petition ” to refer to a petition filed under 28 U.S.C. § 2255

. See Castro v. United States , 540 U.S. 375, 377 (2003) (referring interchangeably to “habeas motion” and “§ 2255 motion”)

.

2 Hoffner was sentenced on May 29, 2002 under the 2001 edition of the Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4)(A) ; U.S.S. G. § 1B1.11

. Without the career offender guideline, Hoffner’s offense level would have been4 Hoffner filed a direct appeal and a habeas corpus petition , which we rejected. United States v. Hoffner , 96 F. App’x 85 (3d Cir. 2004); United States v. Hoffner , No. 00

- cr

00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005), appeal
denied No. 05

- 5478 (3d Cir. July 18, 2006). In 2012, he filed
an unauthorized second habeas corpus petition. In 2015

, he
filed the pro se moti on before us seeking to file a success ive
habeas corpus petition under Johnson . We appointed counsel, requested briefing

, and held oral argument.

II

. Johnson and Its Progeny

A

. Johnson

In Johnson , the Supreme Court considered a d ue process challenge to the residual clause of the ACCA

, 18 U.S.C. § 924(e) (2)(B)(ii)

. The ACCA applies to a defendant convicted of being a f elon in possession of a
firearm under 18 U.S.C. § 922(g). Ordinarily, “the law punishes violation of this ban by up to 10 years’ impr isonment. ” Johnson , 135 S. Ct. at 2555 (citing 18 U.S.C. § 924(a)(2)). However, if a defendant is an “armed career
criminal

, ” the ACCA imposes a mandatory minimum

34 and his criminal history category IV

, for a Guideline range
of 210 to 262 months. Applying the career offender guideline
increased his G uideline range to 360 m onths to life. Continuing the Guideline calculation s , the District Court found that Hoffner’s criminal history category substantially overstated the seriousness of his criminal history. U.S.S.G. § 4A1.3

. The District Court depart ed downward, producing a
final , mandatory Guideline range of 210 to 262 months.5 sentence of fifteen years and a statutory maximum sentence
of life. Id. ( citing 18 U.S.C. § 924(e) (1)). 3

A defendant is an “ armed career criminal ” if

, in relevant part

, he “ has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony

. ’” Id. (citing
18 U.S.C. § 924(e)(1) )

. Pre

- Johnson , the definition of
“violent fe lony ” ha d three clauses

— one enumerating
offenses

, one enumerating elements

, and the residual clause

. 18 U.S.C. § 924(e)(2)(B). Th e residual clause defined a crime as a “violent felony” if it “otherwise involves conduct that presents a serious potential r isk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B)(ii); see also Johnson , 135
S. Ct. at 2557.

In Johnson , the Supreme Court struck the ACCA
residual clause as unconstitutionally vague. Johnson , 135
S. Ct. at 2563. The Court explained that the Fifth
Amendment ’s vagueness doctrine bars the Government from “taking away someone’s life, liberty, or property under a
criminal law s o vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invit es arbitrary enforcement.” Id. at 2556. These principles appl y to laws “defining elements of crimes” or “fixing
sentences.” Id. at 2557. The ACCA was a law “fixing

sentences

. ” Beckles , 137 S. Ct. at 892. Its residual clause
denied defendants “fair no tice” and “ invite[d] arbitrary enforcement by judges

. ” Johnson , 135 S. Ct. at 2557. Thus,
Johnson held that “[i]ncreasing a defendant’ s sentence under

3 A sentencing court can depart from the mandatory minimum sentence only in limited circumstances. Cf. 18 U.S.C. § 3553(e)

.6 the clause denies due process of law.” Id.

B. Welch

The Supreme Court quickly resolved the issue o f
Johnson ’s retroa ctivity i n Welch v. United States , 136 S. Ct.
1257 (2016)

. Welch held that Johnson is retroactive to cases on collateral review

. Id. at 1264.

In Welch , the Supreme Court applied the retroactivity
test set forth in Teague v. Lane , 489 U.S. 288 (1989). Teague provides that “new constitutional rules of criminal procedure”

are generally not retroactive to cases on collateral review.
Welch , 136 S. Ct. at 1264 (quoting Teague , 489 U.S. at 310). However, “two categories of decisions

. . . fall outside this general ” retroactivity bar: “ new substantive rules ” and

“ watershed rules of criminal procedure. ” Id. ( emphasis and citations omitted)

. A procedural rule “regulate[s] only the manner of determining the defendant’s culpability.” Id. at
1265 ( emphasis and citation omitted). A substantive rule

“ alters the range of conduct or the class of persons that the law punishes.” Id. at 1264

- 65 ( citation omitted )

. 4

Welch held that Johnson is a new “substantive” rule
because it alters “the substan tive reach of the [ACCA]” such that a defendant can no longer be sentenced as an armed
career criminal “ based on ” the residual clause. Id. at 1265 ; see also Montgomery v. Louisiana , 136 S. Ct. 718, 734 (2016). Conversely, Johnson is not “ procedur al ” beca use i t

“ had nothing to do with the range of permissible methods a

4 We need not address the category “watershed rules of criminal proce dure

. ”7 court might use to determine whether a defendant should be sentenced under the [ACCA].” Welch , 136 S. Ct. at 1265.

C. Johnson Challenges to the Career Offender
Guideline

From Johnso n grew challenges to another residual
clause , the one contained in the career offender guideline.
Th e career offender guideline is a severe sentencing
enhancement for certain recidivist offenders. It “specif[ies] a sentence to a term of imprisonment at o r near the maxim um term.” 28 U.S.C. § 994(h).

The career offender guideline applies to a defendant
where

, inter alia

, “the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense” and “the defendant has at least two prior felony
convictions o f either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Until recently, the career offender guideline defined a “ crime of violence ” as

any offense under federal or state law, pun ishable by imprisonment for a term exceeding one year
that

—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use8 of explosive s, or otherwise involves conduct that presents a serious potential risk of physical injury to another

.

Beckles v. United States , 137 S. Ct. 886, 890

- 91 (2017) (emphasis in original) (quoting U.S.S.G. § 4B1.2(a) ). 5

In this definition, t he final clause i s the residual clause.

It is identical to the ACCA residual clause struck in Johnson

. Compare 18 U.S.C. § 924(e)(2)(B) (ii) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”), with U.S.S.G. § 4B1.2(a)(2) ( “ or otherwise involves conduct that presents a serious potential
risk of physical injury to another”). For this reason, the
residual clause was struck from the career offender guideline prospectively, effective August 1, 2016. U.S.S.G. Supp. App. C, Am end. 798.

1. Booker

Before its elimination, the residual clause of the career offender guideline had been effective since November 1,

5 Beckles quoted the 2006 edition of the Sentencing
Guidelines. Beckles , 137 S. Ct. at 890. This definition is the
same as the 200 1 edition , under which Hoffner was
sentenced. See id. at 890 n.1 (citing 18 U.S .C. § 3553(a)(4)(A)). It is also t he same as the 2000 edition

, which was used to create Hoffner’s Pre sentence Investigation Report.9 1989. U.S.S.G. Supp. App. C, Amend. 268. 6 Significantly

, it s use span ned two eras in sentencing under the Federal Sentencing Guidelines

— the pre

- and post

- United States v.
Booker , 543 U.S. 220 (2005)

, eras

. We pause briefly to
review this distinction, as it is necessary to our analysis

.

In the earlier, pre

- Booker era , the Sentencing
Guidelines had “the force and eff ect of laws” and were “mandatory and binding on all judges

. ” Id. at 233

- 34. A sentencing court was required to “impose a sentence of the kind, and within the range

, ” set by the Guidelines. Id. at 234 (quoting 18 U.S.C. § 3553(b)). Although the sentenci ng court could depart from the range, departures were based on “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). “In most cases, as a matter of law, the
Commission .

. . adequ ately t[ook] all relevant factors into account, and no departure [was] legally permissible.”
Booker , 543 U.S. at 23 4

.

In Booker , the Supreme Court held that the Sentencing
Guidelines violated the Sixth Amendment. Id. at 226

- 27. In a separate, remedial opinion, the Court rendered the
Guidelines “ advisory. ” Id. at 245

. In the current , post

Booker era, a sentencing court must “consider Guidelines ranges” but may “tailor the sentence in light of other statutory
concerns as well.” Id. at 245 (citing 18 U .S.C. § 3553(a)). In
addition to the G uideline s , a sentencing court considers the parties’ arguments and the Section 3553(a) factors ; the

6 Previously, the career offender guideline defined a “crime of violence” under 18 U.S.C. § 16. See U .S.S.G. § 4B1.2 (1) (U.S. Sentencing Comm’n 1988).10 appropriate sentence may vary from the range. United States

v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006).

2. Beckl es

In Beckles , the Supreme Court rejected a Johnson challenge to the career offender guideline’s residual clause , as applied under the advisory, post

- Booker Guidelines

. Beckles

, 137 S. Ct. at 890

. Beckles held that that “the advisory
Guidelines are not subject to vagueness challenges.” Id.

The issue in Beckles was whether the advisory
G uidelines “ fix the permissible sentences for criminal
offenses ” such that they can be challenged as vague. Id. at 892 (emphasis in original)

. Beckles held that they do not

. Rather, the advisory Guidelines “merely guide the exercise of
a court’s discretion.” Id. The Court further explained that the two principles governing the vagueness doctrine

— notice and arbitrary enforcement

— do not apply to the advisory
Guideline s. Id. at 894. As to notice, the “‘due process
concerns that

. . . require notice in a world of mandatory Guidelines no longer’ apply” whe n the Guidelines are advisory

. Id. ( ellipses in original) ( quoting Irizarry v. United

States , 553 U.S. 708 , 714 (20 08)). As to arbitrary enforcement, the advisory Guidelines are not “enforce d ” at all, and so cannot be enforced arbitrarily. Id. at 895.

Beckles limited its holding to the advisory Guidelines.
Id. at 890. It did not address the pre

- Booker era, when t he Sentencing Guidelines were “mand atory and binding on all judges

, ” who were required to sentence within the range

. Booker , 543 U.S. at 233. In a concurring opinion in Beckles

, Justice Sotomayor noted that the majority left “open the11 question whether de fendants sentenced to terms of imprisonment before [the Supreme Court’s] decision in
United States v. Booker

— that is, during the period in which
the Guidelines did ‘fix the permissible range of sentences,’

— may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring) (citation s omitted)

. 7

II I

. Second or Successive Habeas Corpus Petitions

Hoffner was sentenced based upon the career offender guideline’s residual clause during the pre

- Booker , mandatory
Guidelines era. He seek s our authorization to file a
successive habeas corpus petition challenging his sentence in light of Johnson

. We turn then to the requirements for a second or successive habeas petition

, set forth in the
Anti t errorism and Effective Death Penalty Act of 19 96 (AEDPA)

.

AEDPA created a statutory “ gatekeeping mechanism ”
for second or successive habeas petition s

. Felker v. Turpin

, 518 U.S. 651, 657 (1996) (quotation marks omitted)

. For a federal prisoner, like Hoffner, a “second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h) ; see also

In re Turner , 267 F.3d 225, 227 ( 3d Cir. 2001). Section

7 Beckles abrogated in par t United States v.
Calabretta , 831 F.3d 128 (3d Cir. 2016)

, a direct appeal in
which we held that the career offender guideline’s residual
clause is unconstitutionally vague. Id. at 137 & n.10. In this opinion , w e need not parse w hat portions of Calabretta
survive Beckles because, as explained below

, we are not evaluating Hoffner’s claim on the merits

.12 2244 (b)(3) is the gatekeeping provision. Felker , 518 U.S. at
657. 8 It requires a petitioner to “move in the appropriate court of appeals for an order authorizing the district court to
consider” a second or successive habeas petition . 28 U.S.C. § 2244(b)(3)(A). The appellate court “ may authorize the filing of a second or successive application only if it
determine s that the application makes a prima facie showing ” of the pre

- filing requirements. 28 U.S.C. § 2244(b)(3)(C )

.

A. Pre

- Filing Requirements

T he pre

- filing requirements for a secon d or successive habeas petition for a fede ral prison er are set forth at 28 U.S.C. § 2255(h)

. A Section 2255(h) motion may be based upon

“ newly discovered evidence ” or a qualifying “ new rule of
constitutional law. ” 28 U.S.C. § 2255(h). For the latter

, the

pre

- filing requirements consist of “thre e prerequisites .” Tyler

v. Cain , 533 U.S. 656, 662 (2001). “First, the rule on which the claim relies must be a ‘new rule’ of constitutional law; second, the rule must have been ‘made retroactive to cases on collateral review by the Supreme Court’; and t hird, the claim must have been ‘previously unavailable.’” Id. 9

8 Section 2244(b)(3) applies directly to a state prisoner , without the cross

- reference from Section 2255(h).
Felker , 518 U.S. at 657.

9 Tyler quoted 28 U.S.C. § 2254(b)(2)(A) because it involved a state prisoner. These requirements are “identical” to the parallel requirements of 28 U.S.C. § 2255(h) (2)

. In re Olopade , 403 F.3d 159, 162 n.3 ( 3d Cir. 2005). “Due to this identity of language, we have applied the Tyler holding to federal prisoners seeking to file second or successive habeas13 Although few in number, the pre

- filing requirements of Section 2255(h)(2) a re difficult to satisfy. The Supreme Court itself must issue the retroactivity decision, either expressly or throu gh a series of decisions. Tyler , 533 U.S. at

66 3; see also In re Olopade , 403 F.3d at 162; In re Turner

, 267 F.3d at 229. Moreover, “because of the interplay between” the pre

- filing requirements and the statute of limitations, 28 U.S.C. § 2255(f)(3), “an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in
the rare case in which this Court announces a new rule of
constitutional law and makes it retroactive within one year.”
Dodd v. United States , 545 U.S. 353, 359 (2005). 10

B. Prima Facie Show i ng

In our gatekeeping role, we assess whether the

applications.” Id. This is so although there is a slight difference between the two sections. Section 2244(b)(2)(A)
asks whether a claim “re lies on” a qualifying new rule.
28 U.S.C. § 2244(b)(2)(A) . Section 2255(h) asks whether the motion “contain[s]” a qualifying new rule. 28 U.S.C. § 2255(h). In Olopade , we did not deem this to be a “relevant portion ” of the text. Olopade , 403 F.3d at 1 62 n.3; see also

In re Encinias , 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per curiam) (equating “contain” with “re l[y] on”).

10 Johnson is such a “rare case.” Dodd , 545 U.S. at
359. The Supreme Court decided Johnson on June 26, 2015. On April 18, 201 6, the Court held in Welch that Johnson is
retroactive.14 petitioner has satisfied the pre

- filing requirements of Section 2255(h) at only a “prima facie” level. 28 U.S.C. § 2244(b )(3)(C) . Although AEDPA does not define “prima facie,” the context of Section 2244(b) confirms that we hold the petitioner to a light burden . The same subsection directs us to make our prima facie determination “not later than 30 days after the filing of the motion.” 28 U.S.C. § 2244(b)(3)(D). 11 It provides that the “grant or denial of an
authorization .

. . to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certior ari.” 28 U.S.C. § 2244(b)(3)(E). It also provides that after our authorization,
a district court shall consider anew whether the petitioner has “show[n] that the claim satisfies the requirements of this
section.” 28 U.S.C. § 2244(b)(4). This context de monstrates that we “do not have to engage in .

. . difficult legal analysis” in our gatekeeping role

. Tyler , 533 U.S. at 664.

Consistent with the text and context, we have defined a “prima facie showing” as a “ sufficient showing ” that the petitioner has satisfied the pre

- filing requirements “to warrant a fuller exploration by the district court.” Goldblum v. Klem

, 510 F.3d 204, 219 & n.9 (3d Cir. 2007) (quoting Bennett v.
United States , 119 F.3d 468, 469 (7th Cir. 1997)) . Put differently, we authorize a second or successive habeas petition where there is some “ reasonabl [ e ] likel [ ihood ]” that the motion satisfies the pre

- filing requirements of Section 2255(h)(2). Id. at 219 (quoting Bennett , 119 F.3d at 469 ); see also 2

- 28 Hertz & James S. Liebman, Fede ral Habeas

11 The thirty day time limit is “advisory or hortatory rather than mandatory

. ” In re Siggers , 132 F.3d 333, 33 5 (6th Cir. 1997).15 Corpus Practice and Procedure § 28.3(d) & n.122 (2015).
We do not consider the merits of the claim. In re Pendleton

, 732 F.3d 280, 282 n.1 (3d Cir. 2013) (per curiam) ; Goldblum

, 510 F.3d at 219 n.9.

IV

. Analysis

T he parties agree, as they must under Welch

, that
Johnson is “[1] a new rule of constitutional law, [2] made retroactive to cases on collateral review by the Supreme Court, [3] that was previously unavailable. ” 28 U.S.C. § 2255(h)(2)

. These are generally the “three prerequisites” for a motion under Section 2255(h). Tyler , 533 U.S. at 662. The Government nevertheless opposes Hoffner’s motion for authorization to file a successive habeas petition . It argues that Hoffner has not made a prima facie showing of one portion of the firs t prerequisite, that Johnson is “ the rule on which the claim relies .” Id. (emphasis added).

A

. Relies

This Court has not previously focused on what is required for a claim to “rel[y]” on a qualifying new rule for the purposes of Section 2255(h)(2). I d. Our precedent
dictates that the answer cannot be whether the claim has merit, because we do not address the merits at all in our gatekeeping function. In re Pendleton , 732 F.3d at 282 n.1;
Goldblum , 510 F.3d at 219 n.9. We now hold that whether a
cla im “relies” on a qualifying new rule must be construed permissively and flexibly on a case

- by

- case basis

.

Our interpretation is based first on the text of Section 2255(h)(2) , which supports a permissive and flexible16 approach to whether a petitioner “re lies” on a qualifying new
rule

. See Maslenjak v. United States , 137 S. Ct. 1918, 1924 (2017) (“We begin, as usual, with the statutory text.”)

. The Supreme Court has enumerated the pre

- filing requirements as
“three prerequisites .” Tyler , 533 U.S. at 662. Of these, the
first is that “the rule on which the claim relies must be a ‘new
rule’ of constitutional law.” Id. While this prerequisite does
refer to a rule on which the claim “ relies

, ” Tyler does not give any freestanding weight to this term

. Id. S imilarly, when we described the “relevant portion” of the text, we did not
include reliance

. Olopade , 403 F.3d at 162 n.3

. Even the Government concedes that Section 2255(h)(2) has “no express requirement that the ‘new rule’ must actually pertain to the p etitioner’s claim.” Br. for Respondent 22 n.6.

The context of Section 2244(b) also supports interpreting “relies” permissibly and flexibly

. See King v.
Burwell , 135 S. Ct. 2480, 2489 (2015) ( emphasizing that we
read statutory text in context) . As ex plained above, Congress
has mandated that the “grant or denial of an authorization .

. . shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E) ; see also Felker , 518 U.S. at 65 4 (upholding this subsection)

. This creates an asymmetry in the impact of

our gatekeeping decision on a particular case

. See Evans

Garcia v. United States , 744 F.3d 235, 239 (1st Cir. 2014);
Ochoa v. Sirmons , 485 F.3d 538, 54 2 n.5 (10th Cir. 2007) (pe r curiam)

. On one hand, if we e rroneously deny authorization, the petitioner “will have no opportun ity to appeal or seek rehe aring. ” Evans

- Garcia , 744 F.3d at 239

. On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” Id. T he
district court will have the opportunity to determine anew17 whether the petitioner has “show[n] that the claim satisfies the requirements of this section,” 28 U.S.C. § 2244(b)(4), and
whether the habeas petition has merit

, In re Pendleton , 732 F.3d at 282 n.1; Goldblum , 510 F.3d at 219 n.9. In turn, we

may review the district court’s decision

. See 28 U.S.C. § 2253.

At a policy level, a flexible, case

- by

- case approach
advances two ends

— t he need t o meet new circumstances as they arise , and the need to prevent injustice. Cf. Holland v.
Florida , 560 U.S. 631, 650 (2010) (describing these ends in a different context). Both concerns are at the fore in Section 2255(h)(2) motions. Such motions may involve rules that are
“new ” (therefore difficult to foresee) and “substantive,” thereby involving a particular type of injustice

— a “conviction or sentence that the Constitution deprives the [Government] of power to impose,” Montgomery , 136 S. Ct. at 732 ; cf. id. ( noting that “the r etroactive application of substantive rules does not implicate a State’s weighty interests in

. . . finality”).

The above considerations of text, context and equity are encapsulated by the scholarly dissenting opinion of Judge
Elrod in In re Arnick , 82 6 F.3d 787, 789 (5th Cir. 2016) (Elrod, J., dissenting). As Judge Elrod observes, a motion “relies” on a qualifying new rule where the rule “substantiates
the movant’s claim.” Id. This is so even if the rule does not “conclusively decide[]” the claim or if the petitioner needs a
“non

- frivolous extension of a qua lifying rule. ” Id. at 789

- 90.
S ection 2255(h)(2) does not require that qualifying new rule
be “the movant’s winning rule, ” but “only that the movant rely on such a rule.” Id. at 790 (emphasis i n original ).

It is for the district court to evaluate the merits of the18 second or successive habeas petition in the first instance

. This includes “whether the invoked new rule should ultimately be extended in the way that the movant proposes”
or wheth er his “reliance is misplaced.” Id. at 791 . Other Circuits agree. S ee , e.g. , In re Hubbard , 825 F.3d 225, 231 (4th Cir. 2016) ( holding that “i t is for the district court to determine whether the new rule extends to the movant’s case,
not for this court in this proceeding” ); In re Williams , 759
F.3d 66 , 72 (D.C. Cir. 2014) (holding that whether the qualifying new rule “extends” to the petitioner “goes to the merits of the motion and is for the district court, not the court of appeals”).

B

. Precedent

The above considerations dictate that we should apply

a permissive and flexible, case

- by

- case approach to deciding
whether a petitioner “ r elies” on a qualifying new rule (again, at a prima facie level). Implementing such an approach

, we look to precedent as a guide while recognizing that future “new” rules may be difficult to foresee.

First

, we turn to identical Johnson challenges to the career offender guideline ’s residual clause in pre

- Booker

, mandatory Guideline cases. The Second, Sixth, Fourth and
Tenth Circuits have all authorized second or successive habeas petitions challenging this residual clause in light of
Johnson

. See Vargas , No. 16

- 2112 (2d Cir. May 8, 2017) (authorizing success ive habeas petition

, as “ Beckles did not clearly foreclose” p etitioner’s Johnson claim under the mandatory Guidelines) ; In re Patrick , 833 F.3d 584, 589 (6th Cir. 2016) (holding that petitioner “easily s atis f [ ied]” the prima facie standard) ; In re Hubbard , 825 F.3d at 23119 ( holding that petitioner made a prima facie showing based

upon Johnson ) ; In re Encinias , 821 F.3d at 1226 (holding that petitioner sufficiently “rel [ i ed] on” Johnson to permit
authorization )

. 12 We find these decisions persuasive. 13

We also draw upon decision s authorizing second or
successive habe as petitions for juveniles sentenced to mandatory life without parole under Graham v. Florida , 560 U.S. 48 (2010)

, and Miller v. Alabama , 567 U.S. 460 (2012). 14 Most important of these is our own decision
authoriz ing second or successive habeas petition s f or three juvenile offenders in In re Pendelton , 732 F.3d at 283

.

In Pendleton

, our Court authorized a successive habeas

12 W e acknowledge that only Vargas post

- dates
Beckles , which was de cided on March 6, 2017. However,
Beckles does not abrogate the other Circuit decisions because,
inter alia , they involve the pre

- Booker , mandatory
Guidelines

.

13 In contrast, we do not follow the Eleventh Circuit

, which

— contrary to our precedent

— resolve d a merits question in the context of a motion to authorize a second or successive habeas petition. In re Griffin , 823 F.3d 1350, 1354 (11th Cir. 2016) (holding that the mandatory career offender guideline cannot be challenged as vague)

.

14 Graham held that juvenile life

- without

- parole

sentences for non

- homicide offenses violate the Eighth
Amendment. 560 U.S. at 82. Miller held unconstitutional a mandatory juvenile lif e

- without

- parole sentence for homicide.
567 U.S. at 465.20 petition for petitioner Corey Grant, who was sentenced to life
im prisonment under the mandatory Guidelines after his downward departur e request was denied. See Br. for Respondent, In re Grant , 732 F.3d 280 (3d Cir. 2013) (No.
13

- 1455), 2013 WL 4505735, *29

- 3 1

. The Government agreed that Miller was a qualifying new rule. However, it opposed Grant’s motion because his life sentence was arguably discretionary, and Miller did not invalidate “a discretionary life

- without

- parole sentence.” Id. at *3 6 . The
Government asserted that Grant could refile “[s]hould the Supreme Court someday foreclose such sentences

. ” Id. We rejected this argume nt and authorized the petition based on
Miller

. In re Pendleton , 732 F.3d at 282 n.1. We explained
that “ w hether Grant actually qualifie[d] for relief under
Miller ” was a merits question for the district court to answer
in the first instance. Id.

Simi larly, the Fifth Circuit authorized a successive habeas petition for a juvenile sentenced to life without parole
in In re Sparks , 657 F.3d 258 (5th Cir. 2010). The Sparks petitioner was convicted of aiding and abetting a carjacking resulting in death. Id

. at 260. Notably, he filed his Section 2255(h) motion based upon Graham and prior to Miller

. Because his crime resulted in death, the petitioner was arguably seeking to extend Graham to homicide (as the Supreme Court would later do in Miller ). Id. at 2 60 n.1. The
Fifth Circuit authorized the petition based upon Graham

. Id.

The District of Columbia Circuit also authorized a successive habeas petition in the case of a petitioner serving life without parole in In re Williams , 759 F.3d at 72 . In
Willi ams , it was unclear whether the petitioner committed his crimes as a juvenile because he had participated in a21 conspiracy spanning both his juvenile and adult years. As such, the Government argued that the petitioner was not relying on Graham and Miller b ut rather an “extension ” of
those cases. Id. at 70

- 71 . Again, t he Court rejected this argument and held that the petitioner “ made a prima facie showing that he relie [d] on” Graham and Miller

. Id. at 71.
Whether those cases “extend[ed]” to the petitione r was a merits question for the district court. Id. at 72; see also id . at
70

- 71.

At the other end of the spectrum, this Court regularly
declines to authorize second or successive habeas petitions that are “foreclosed by our precedent or otherwise frivo lous.”
In re Arnick , 826 F.3d at 790 (Elrod, J., dissenting)

. To take the obvious example , we have denied Johnson challenges to the career offender guideline’s residual clause in advisory
Guidelines cases as foreclosed by Beckles

. “Certainly a

movant ca nnot invoke a new rule by reading it so expansively as to contradict binding precedents. The movant’s requested extension also cannot be so facially implausible that he is not really ‘relying’ on the new rule at all.” Id. at 791 (citations omitted).

C

. The Eighth Circuit ’s Approach

In contrast to the permissive and flexible, case

- by

- case approach described and illustrated above

, the Govern ment

proposes a different test that would strictly define when a petitioner may rely on a qualifying new rule. Specifically, the
Government suggests that we take the approach of the Eighth
Circuit in Donnell v. United States , 826 F.3d 1014 (8th Cir. 2016). We decline to do so.22 In Donnell

, the petitioner raised a pre

- Beckles challenge to the career offender guid eline’s residual clause under the advisory Guidelines

. Id. at 1015. The Eighth
Circuit refused to authorize a second or successive habeas petition on the ground that the petitioner sought to “extend”
Johnson

. Id. at 1015. More s pecifically, the Court h eld that
the petitioner impermissibly “ urge [d] the creation of a second
new rule

. ” Id. at 1017

.

The Eighth Circuit’s approach is inconsistent with the

text of Section 2255(h)(2) , which contains only “three prerequisites

, ” Tyler , 533 U.S. at 662, and no requirement
that we scrutinize a motion to see if it would produce a

“ seco nd new rule

. ” Nor does the context of Section 2244(b)
support such a position. As stated above, we ordinarily rule on a Section 2255(h)(2) motion within thirty days

, 28 U.S.C. § 2 244(b)(3)(D), and without the possibility of a “petition for rehearing or for a writ of certiorari

, ” 28 U.S.C. § 2244(b)(3)(E). As the Supreme Court has observed, we do

not “have to engage in .

. . difficult legal analysis” under such cramped conditions. Tyler , 533 U.S. at 664.

The Eighth Circuit’s approach may be simple to state,
but it epitomizes a “difficult” analysis in practice

. Although
Donnell does not cite Teague , the way to determine whether a Section 2255(h) motion “urges the creation of a second new
rule

, ” Donnell , 826 F.3d at 1017, is to undertake a Teague analysis. The Government agrees. See Br. for Respondent 35 (“The rule that Hoffner seeks to establish . .

. is a ‘new’ constitutional rule, because the invalidity of the guideline’s

re sidual clause .

. . was not ‘ dictated by precedent existing at23 the time [his] conviction became final.’”). 15 Whether a rule is

15 The Government quotes C haidez v. United States

, 568 U.S. 342, 347

- 48 (2013) , which more completely explains that a “new” rule under Teague is one that

“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.” And a holding is not so
dictated .

. . unless it would have been “apparent to all reasonable jurists.”

But that account has a flipside. Teague also made clear that a case
does not “announce a new rule

. . . [when] it ‘[is] merely an application of the principle that governed’” a prior decision to a
different set of facts. As Justice Kennedy has explained, “[w]here the beginning point” of our

ana lysis is a rule of “general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that24 “new” under Teague is often uncertain

. As a leading treatise puts it, a “review of circuit court decisions applying Teague

revea ls little to distinguish the rules that have been
denominated ‘new’ from those deemed not to be ‘new.’ Indeed, it has become increasingly commonplace to find
inter

- or intra

- circuit conflicts as to whether a particular rule
is or is not ‘new.’ Such confl icts may linger for years before the Supreme Court eventually steps in to resolve the matter.”

2

- 25 Hertz & Liebman, supra , § 25.5 (citations omitted)

. T he
search for a “ second new rule ” is thus ill

- suited to the context
of Section 2244(b)

. W e decline t o adopt t he Donnell approach and need not determine whether applying Johnson
to Hoffner would create a “ second new rule. ”

Instead, we consider Hoffner’s motio n permissively and flexibly, w ith precedent as a guide. Like the Second,
S ixth , Fourth and Te nth Circuits, we conclude that Hoffner has made a “prima facie showing,” 28 U.S.C. § 2244(b)(3)(C), that he relies on Johnson

. See Vargas , No.
16

- 2112 (2d Cir. May 8, 2017); In re Patrick , 833 F.3d at 589; In re Hubbard , 825 F.3d at 231; In re Encinias , 8 21 F.3d
at 1226. We will therefore authorize Hoffner to file a successive habeas corpus petition

. It will be for the District
Court to determine in the first instance whether his petition
has merit.

yields a result so novel that it forges a new rule, one not dictated by precedent.”

Id. at 34 7

- 48 (citations omitted).25 V

. Conclusion

For the foregoing reasons, w e will gr ant Hoffner’s
Section 2255(h) motion and authorize him to file a successive
habeas corpus petition in the D istrict C ourt.