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)

______________

Lisa B. Freeland [ARGUED]

Office of Federal Public Defender

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222
2

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 Criminal 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 offender based on this residual clause in 2002. He

seeks our authorization to challenge his sentence via a 

successive habeas corpus petition, 28 U.S.C. § 2255(h)(2). 

The ultimate question is whether Hoffner has a 

meritorious vagueness claim under Johnson. But that 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 successive habeas corpus petition. To answer this 

seemingly simple 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. We conclude that Hoffner has made a prima facie 

showing, and so we will authorize his 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, the District Court applied the career offender 

guideline, U.S.S.G. § 4B1.1, based upon two prior 

convictions Hoffner incurred in Pennsylvania state court in 

the 1980s. The first was for simple assault and the second

was for burglary, 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 been
4

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-cr00456, 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 motion before us seeking to file a successive 

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 due 

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 felon 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’ 

imprisonment.” 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 Guideline range to 360 months to life. 

Continuing the Guideline calculations, 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 departed 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 felony” had three clauses—one enumerating 

offenses, one enumerating elements, and the residual clause.

18 U.S.C. § 924(e)(2)(B). The residual clause defined a 

crime as a “violent felony” if it “otherwise involves conduct 

that presents a serious potential risk 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 so vague that it fails to give ordinary people fair 

notice of the conduct it punishes, or so standardless that it 

invites arbitrary enforcement.” Id. at 2556. These principles

apply 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 notice” 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 of

Johnson’s retroactivity in 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 substantive 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 “procedural” because it 

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

 4 We need not address the category “watershed rules 

of criminal procedure.”
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 Johnson grew challenges to another residual 

clause, the one contained in the career offender guideline. 

The career offender guideline is a severe sentencing 

enhancement for certain recidivist offenders. It “specif[ies] a 

sentence to a term of imprisonment at or near the maximum 

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 of 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, punishable 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 use 
8

of explosives, 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, the final clause is 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, Amend. 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 2001 edition, under which Hoffner was 

sentenced. See id. at 890 n.1 (citing 18 U.S.C. 

§ 3553(a)(4)(A)). It is also the same as the 2000 edition, 

which was used to create Hoffner’s Presentence Investigation 

Report.
9

1989. U.S.S.G. Supp. App. C, Amend. 268.6

 Significantly, 

its use spanned 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 effect 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 sentencing 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 . . . adequately t[ook] all relevant factors into 

account, and no departure [was] legally permissible.” 

Booker, 543 U.S. at 234.

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, postBooker 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 Guidelines, 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. Beckles

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

Guidelines “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 

Guidelines. Id. at 894. As to notice, the “‘due process 

concerns that . . . require notice in a world of mandatory 

Guidelines no longer’ apply” when the Guidelines are 

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

States, 553 U.S. 708, 714 (2008)). As to arbitrary 

enforcement, the advisory Guidelines are not “enforced” 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 the 

Sentencing Guidelines were “mandatory 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 the 
11

question whether defendants 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) (citations omitted).

7

III. 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 seeks 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 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA).

AEDPA created a statutory “gatekeeping mechanism”

for second or successive habeas petitions. 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 part 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, we need not parse what 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

determines 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

The pre-filing requirements for a second or successive 

habeas petition for a federal prisoner 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 “three 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 third, 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 habeas 
13

Although few in number, the pre-filing requirements 

of Section 2255(h)(2) are difficult to satisfy. The Supreme 

Court itself must issue the retroactivity decision, either 

expressly or through a series of decisions. Tyler, 533 U.S. at 

663; 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 Showing

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 “relies 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 162 n.3; see also 

In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per 

curiam) (equating “contain” with “rel[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, 2016, 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 certiorari.” 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 demonstrates 

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, Federal Habeas 

 11 The thirty day time limit is “advisory or hortatory 

rather than mandatory.” In re Siggers, 132 F.3d 333, 335 (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

The 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 first 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). Id. 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 

claim “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 flexible 
16

approach to whether a petitioner “relies” 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. Similarly, 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 petitioner’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 explained 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 654 (upholding 

this subsection). This creates an asymmetry in the impact of 

our gatekeeping decision on a particular case. See EvansGarcia v. United States, 744 F.3d 235, 239 (1st Cir. 2014); 

Ochoa v. Sirmons, 485 F.3d 538, 542 n.5 (10th Cir. 2007) 

(per curiam). On one hand, if we erroneously deny 

authorization, the petitioner “will have no opportunity to 

appeal or seek rehearing.” 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. The 

district court will have the opportunity to determine anew 
17

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—the need to 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 retroactive 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, 826 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 qualifying rule.” Id. at 789-90. 

Section 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 in original). 

It is for the district court to evaluate the merits of the 
18

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 whether his “reliance is misplaced.” Id. at 791. Other 

Circuits agree. See, e.g., In re Hubbard, 825 F.3d 225, 231 

(4th Cir. 2016) (holding that “it 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 “relies” 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 successive habeas petition, as “Beckles did not 

clearly foreclose” petitioner’s Johnson claim under the

mandatory Guidelines); In re Patrick, 833 F.3d 584, 589 (6th 

Cir. 2016) (holding that petitioner “easily satisf[ied]” the 

prima facie standard); In re Hubbard, 825 F.3d at 231
19

(holding that petitioner made a prima facie showing based 

upon Johnson); In re Encinias, 821 F.3d at 1226 (holding that 

petitioner sufficiently “rel[ied] on” Johnson to permit 

authorization).

12 We find these decisions persuasive.13 

We also draw upon decisions authorizing second or 

successive habeas 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 

authorizing second or successive habeas petitions for three 

juvenile offenders in In re Pendelton, 732 F.3d at 283.

In Pendleton, our Court authorized a successive habeas 

 12 We acknowledge that only Vargas post-dates 

Beckles, which was decided 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—resolved 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 life-without-parole sentence for homicide. 

567 U.S. at 465.
20

petition for petitioner Corey Grant, who was sentenced to life 

imprisonment under the mandatory Guidelines after his 

downward departure request was denied. See Br. for 

Respondent, In re Grant, 732 F.3d 280 (3d Cir. 2013) (No. 

13-1455), 2013 WL 4505735, *29-31. 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 *36. The 

Government asserted that Grant could refile “[s]hould the 

Supreme Court someday foreclose such sentences.” Id. We 

rejected this argument and authorized the petition based on 

Miller. In re Pendleton, 732 F.3d at 282 n.1. We explained 

that “whether Grant actually qualifie[d] for relief under 

Miller” was a merits question for the district court to answer 

in the first instance. Id.

Similarly, 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 260 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 

Williams, it was unclear whether the petitioner committed his 

crimes as a juvenile because he had participated in a 
21

conspiracy spanning both his juvenile and adult years. As 

such, the Government argued that the petitioner was not 

relying on Graham and Miller but rather an “extension” of 

those cases. Id. at 70-71. Again, the 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 petitioner 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 frivolous.” 

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 cannot 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 Government 

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 guideline’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 specifically, the Court held 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 

“second 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. 

§ 2244(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 

residual clause . . . was not ‘dictated by precedent existing at 
23

the time [his] conviction became final.’”).15 Whether a rule is 

 15 The Government quotes Chaidez 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 

analysis 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 that 
24

“new” under Teague is often uncertain. As a leading treatise 

puts it, a “review of circuit court decisions applying Teague

reveals 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 conflicts may linger for years before 

the Supreme Court eventually steps in to resolve the matter.” 

2-25 Hertz & Liebman, supra, § 25.5 (citations omitted). The 

search for a “second new rule” is thus ill-suited to the context 

of Section 2244(b). We decline to adopt the Donnell

approach and need not determine whether applying Johnson

to Hoffner would create a “second new rule.” 

Instead, we consider Hoffner’s motion permissively 

and flexibly, with precedent as a guide. Like the Second, 

Sixth, Fourth and Tenth 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, 821 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 347-48 (citations omitted).
25

V. Conclusion

For the foregoing reasons, we will grant Hoffner’s 

Section 2255(h) motion and authorize him to file a successive 

habeas corpus petition in the District Court.