PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-2027

In re: MICHAEL MATTHEWS,

Petitioner 

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No. 16-2080

In re: DAVID DUPREE,

Petitioner 

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Nos. 16-2273 & 16-2312

In re: SEBASTIAN WILLIAMS,

Petitioner

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No. 16-2414

In re: LARRY SMITH,

Petitioner

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No. 16-2422

In re: RUSSELL WAYNE MCNEILL, III,
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Petitioner 

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On Applications Pursuant to 28 U.S.C. § 2244(b) for Leave to 

File Second

or Successive 28 U.S.C. § 2255 Motions

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Argued

October 9, 2018

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Before: AMBRO, CHAGARES, and GREENAWAY, JR., 

Circuit Judges.

(Filed: August 14, 2019)

______________

Leigh M. Skipper 

Arianna J. Freeman [ARGUED]

Brett G. Sweitzer

Federal Community Defender Office 

for the Eastern District of Pennsylvania 

601 Walnut Street 

The Curtis Center, Suite 540 

West Philadelphia, PA 19106, USA

Counsel for Petitioner in No. 16-2027 & 16-2414

Heidi Freese 

Ronald A. Krauss 

Federal Defender Office 

for the Middle District of Pennsylvania

100 Chestnut Street
3

Suite 306

Harrisburg, PA 17101

Counsel for Petitioner in No. 16-2080

Richard Coughlin 

Julie A. McGrain

Federal Defender Office 

for the District of New Jersey

800-840 Cooper Street 

Suite 350 

Camden, NJ 08102 

Counsel for Petitioner in Nos. 16-2273 & 16-2312

Lisa B. Freeland

Elisa A. Long 

Federal Defender Office 

for the Western District of Pennsylvania 

1001 Liberty Avenue

Suite 1500

Pittsburgh, PA 15222

Counsel for Petitioner in No. 16-2422 

William M. McSwain

Robert A. Zauzmer 

Office of United States Attorney 

Eastern District of Pennsylvania 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106 

Counsel for Respondent in Nos. 16-2027 & 16-2414 

David J. Freed

Stephen R. Cerutti 

Office of United States Attorney 
4

Middle District of Pennsylvania 

Ronald Reagan Federal Building 

Suite 220, 228 Walnut Street 

Harrisburg, PA 17108 

Counsel for Respondent in No. 16-2080 

Craig Carpenito 

Steven G. Sanders [ARGUED]

Mark E. Coyne

Office of United States Attorney

District of New Jersey 

970 Broad Street 

Newark, NJ 07102 

Counsel for Respondent in Nos. 16-2273 & 16-2312

Scott W. Brady

Tina O. Miller 

Rebecca R. Haywood

Laura S. Irwin 

Office of United States Attorney

Joseph F. Weis, Jr. U.S. Courthouse 

700 Grant Street, Suite 4000 

Western District of Pennsylvania 

Pittsburgh, PA 15219

Counsel for Respondent in No. 16-2422

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OPINION OF THE COURT

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GREENAWAY, JR., Circuit Judge.
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This is a consolidated case involving five Petitioners—

Michael Matthews, David Dupree, Sebastian Williams, Larry 

Smith, and Russell McNeill, III—each of whom have filed 

second or successive habeas petitions under 

28 U.S.C. § 2255(h)(2)1to challenge their sentences for their 

convictions under 18 U.S.C. § 924(c). Each Petitioner’s 

§ 2255 motion argues that § 924(c)(3)’s residual clause is 

unconstitutionally vague, given its textual similarity to the 

residual clauses found unconstitutional by the Supreme Court 

in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), and 

Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). In the time 

since this case was argued before this Court, the Supreme 

Court issued its opinion in United States v. Davis, striking 

down § 924(c)(3)(B) as unconstitutionally vague. 139 S. Ct. 

2319, 2336 (2019). The parties concede that the petitions at 

issue are now timely under Davis, thus precluding the need for

our analysis of the applicability of Johnson and Dimaya to 

these petitions. For the following reasons, we will authorize 

all of the petitions.

2

 

1 For ease of reference, we will refer to these simply as 

“§ 2255” petitions. 

2 Pending before this Court are approximately two hundred 

such applications that were stayed following the consolidation 

of these five lead applications. Pursuant to the reasoning 

below, we will authorize these as well. 
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I. FACTUAL BACKGROUND AND PROCEDURAL 

HISTORY

The five Petitioners in this action were convicted, 

among other offenses, of violating 18 U.S.C. § 924(c)(1)(A), 

which proscribes the use or carry of a firearm during and in 

relation to a “crime of violence” or “drug trafficking crime,” as 

well as the possession of a firearm in the furtherance of any 

such crime. Section 924(c)(3) defines “crime of violence” to 

mean a felony offense that “(A) has as an element the use, 

attempted use, or threatened use of physical force against the 

person or property of another” (the “elements” clause) or “(B) 

that by its nature, involves a substantial risk that physical force 

against the person or property of another may be used in the 

course of committing the offense” (the “residual” clause). 

Under Davis, it is undisputed that Petitioners meet the prima 

facie requirements of this Circuit; therefore, we will authorize 

their petitions. 

A. Michael Matthews 

Michael Matthews and an accomplice planned, from 

about May 2009 to June 2009, to rob a check cashing store

located in Philadelphia, Pennsylvania. Matthews armed 

himself with a .22 caliber handgun in furtherance of, and to 

effect the object of, the conspiracy. A grand jury in the Eastern 

District of Pennsylvania charged Matthews with one count of

conspiracy to commit Hobbs Act robbery, in violation of 

18 U.S.C. § 1951 (Count 1); one count of attempted Hobbs Act 

robbery, in violation of 18 U.S.C. § 1951 (Count 3); one count 

of using a firearm during and in relation to a crime of violence, 

in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4); and one 

count of possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) (Count 5). On February 2, 
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2012, after a jury trial, the District Court entered judgment 

convicting Matthews on all counts, and sentenced him to 120 

months’ imprisonment, to be served concurrently on Counts 1, 

3, and 5, followed by 72 months’ imprisonment on the § 924(c) 

count (Count 4), for an aggregate sentence of 192 months’ 

imprisonment. 

Matthews appealed his judgment of conviction, and this 

Court affirmed. See United States v. Matthews, 532 F. App’x 

211 (3d Cir. 2013). Matthews filed a previous 

28 U.S.C. § 2255 motion, which the District Court denied on 

July 14, 2015. He appealed to this Court, which denied a 

certificate of appealability on April 5, 2016. On April 27, 

2016, Matthews filed an application for authorization to file a 

second or successive § 2255 motion. 

B. David Dupree 

David Dupree and several accomplices robbed a bank

located in Lebanon, Pennsylvania on April 15, 2004. During 

and in relation to the bank robbery, Dupree possessed, carried, 

and brandished a handgun. A grand jury in the Middle District 

of Pennsylvania charged Dupree with one count of armed bank 

robbery, in violation of 18 U.S.C. § 2113(d) (Count 1); one 

count of using a firearm during and in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 

2); and one count of conspiracy to commit armed bank robbery, 

in violation of 18 U.S.C. § 371 (Count 3). On November 4, 

2009, after a jury trial, the District Court entered judgment 

convicting Dupree on all counts, and on August 6, 2010, the 

District Court sentenced Dupree to 248 months’ imprisonment 

on Count 1 to be served concurrently with 60 months’ 

imprisonment on Count 3, and a consecutive term of 84 
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months’ imprisonment on the § 924(c) count (Count 2), for an 

aggregate sentence of 332 months’ imprisonment. 

Dupree appealed his judgment of conviction, and this 

Court affirmed. See United States v. Dupree, 472 F. App’x 108 

(3d Cir. 2012). Dupree filed a previous 28 U.S.C. § 2255 

motion that was docketed in the District Court on June 15, 

2012. On October 22, 2012, the court denied the motion. That 

denial was vacated for procedural reasons, and the District 

Court again denied a renewed § 2255 motion on June 29, 2015. 

Dupree appealed to this Court, which denied a certificate of 

appealability on February 3, 2016. On April 29, 2016, Dupree 

filed an application for authorization to file a second or 

successive § 2255 motion. 

C. Sebastian Williams 

Sebastian Williams and several accomplices, from 

March 2002 through August 2002, conspired to rob armored 

cars operated by a business that transported cash in such 

armored cars to and from various customers. On March 23, 

2002, Williams and a co-conspirator, each armed with a 

handgun, robbed an armored truck of more than $600,000 cash, 

and attempted a second robbery on August 29, 2002. A grand 

jury in the District of New Jersey charged Williams with two 

counts of conspiracy to commit a Hobbs Act robbery, in 

violation of 18 U.S.C. § 1951 (Counts 1 and 3); and one count 

of carrying a firearm during and in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 

2). On March 24, 2003, after a jury trial, the District Court 

entered judgment convicting Williams on all counts, and on 

August 18, 2003, the District Court sentenced Williams to 

concurrent terms of 140 months’ imprisonment on Counts 1 

and 3 and a consecutive term of 84 months’ imprisonment on 
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the § 924(c) count, for an aggregate sentence of 224 months’ 

imprisonment. Williams’s conviction and sentence on Count 

2, the § 924(c)(1)(A)(ii) count, was premised on the District 

Court’s determination at sentencing that he brandished the 

firearm. 

Williams appealed his judgment of conviction. This 

Court upheld the convictions but vacated the sentence and 

remanded for re-sentencing in light of United States v. Booker, 

543 U.S. 220 (2005), which rendered the once mandatory 

Sentencing Guidelines advisory. See United States v. 

Williams, 134 F. App’x 510 (3d Cir. 2005). On remand, the 

District Court re-imposed the same aggregate sentence of 224 

months. Specifically, Williams was resentenced to 140 months 

on the conspiracy counts, to be served concurrently, and an 

additional term of 84 months on the § 924(c) count. 

Williams filed a second appeal after his resentencing. 

One of the issues raised was whether his Sixth Amendment 

rights were violated when he was sentenced to a consecutive 

seven-year term of imprisonment under § 924(c)(1)(A)(ii) for 

brandishing the firearm. Williams contended that he should 

have received a five-year term instead, for mere use or carrying 

of a firearm, § 924(c)(1)(A)(i), as found by the jury. This 

Court held, based on the law at the time, that brandishing or 

discharging a firearm in violation of § 924(c) is a sentencing 

factor, rather than an element of the offense, that a judge may 

find to increase a mandatory minimum sentence.

Williams has filed one previous 28 U.S.C. § 2255 

motion. It was denied by the District Court on July 7, 2010. 

He appealed to this Court, which issued an order denying a 

certificate of appealability on November 8, 2010. On May 10, 

2016, Williams, through counsel, filed an application for 
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authorization to file a second or successive § 2255 motion, and 

on May 12, 2016, Williams filed a pro se application for

authorization to file a second or successive § 2255 motion. 

D. Larry Smith

Larry Smith and his brother robbed a gas station in

Philadelphia, Pennsylvania at gunpoint in February 2003. A 

grand jury in the Eastern District of Pennsylvania charged 

Smith with one count of Hobbs Act robbery and aiding and 

abetting, in violation of 18 U.S.C. § 1951 (Count 1); one count 

of attempted carjacking and aiding and abetting, in violation of 

18 U.S.C. § 2119 (Count 3); and two counts of using a firearm 

during and in relation to a crime of violence, in violation of 

18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2 and 4). On September 

29, 2003, after a jury trial, the District Court entered judgment 

convicting Smith on all counts. On May 7, 2004, the District 

Court sentenced him to 384 months’ imprisonment on the two 

§ 924(c) counts (Counts 2 and 4) plus 24 months’ 

imprisonment for Hobbs Act robbery and carjacking (Counts 1 

and 3). See United States v. Smith, 225 F. App’x 51, 52 (3d 

Cir. 2007). Smith appealed the amended judgment of 

conviction and this Court affirmed. Id. Smith filed a previous 

28 U.S.C. § 2255 motion, which the District Court denied on 

April 22, 2009. On June 18, 2016, Smith filed an application 

for authorization to file a second or successive § 2255 motion. 

E. Russell McNeill, III. 

Russell McNeill, III robbed three stores and a bank over 

the course of three days in April 2006. A grand jury in the 

Western District of Pennsylvania charged McNeill with three 

counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 

(Counts 1, 3, and 5); four counts of brandishing a firearm 
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during and in relation to a crime of violence, in violation of 

18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2, 4, 6, and 9); one count 

of bank robbery, in violation of 18 U.S.C. § 2113(a) (Count 7); 

and one count of armed bank robbery, in violation of 

18 U.S.C. § 2113(d) (Count 8). On October 5, 2007, after a 

jury trial, the District Court entered judgment convicting 

McNeill on all counts, and on February 27, 2008, the District 

Court sentenced him to concurrent terms of 78 months’ 

imprisonment on Counts 1, 3, 5, 7, and 8, a consecutive term 

of 84 months’ imprisonment on the first § 924(c) count (Count 

2), and 25 years’ imprisonment on each of the three additional 

§ 924(c) counts (Counts 4, 6, and 9), with each of the § 924(c) 

sentences to be served consecutively to one another and 

consecutively to the 78-month concurrent sentence on the non-

§ 924(c) counts, for an aggregate sentence of 1,062 months (or 

88.5 years) of imprisonment. 

McNeill appealed his judgment of conviction, and this 

Court affirmed. United States v. McNeill, 360 F. App’x 363 

(3d Cir. 2010). McNeill has filed one previous 

28 U.S.C. § 2255 motion. On March 26, 2015, the District 

Court granted the motion in part and denied it in part; 

specifically, it vacated its sentence on Count 7 of the 

indictment—the bank robbery count—and denied the motion 

in all other respects. McNeill did not appeal. On May 16, 

2016, McNeill filed an application for authorization to file a 

second or successive § 2255 motion. 
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II. DISCUSSION3

This Court need not determine the merits of Petitioners’ 

proposed challenges to § 924(c), because the key question is 

whether Petitioners have made a prima facie showing that their 

petitions satisfy the pre-filing requirements of § 2255. See

United States v. Peppers, 899 F.3d 211, 221 (3d Cir. 2018)

(noting that “[o]ur inquiry does not go . . . deep because we are 

in search of a mere prima facie showing that the petitioner has 

satisfied the pre-filing requirements to warrant full exploration 

by the district court.” (internal quotation marks, citations, and 

ellipsis omitted)). The Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”) created a statutory 

“gatekeeping mechanism” for a second or successive habeas 

petition. In re Hoffner, 870 F.3d 301, 306 (3d Cir. 2017)

(quoting Felker v. Turpin, 518 U.S. 651, 657 (1996)). Pursuant 

to § 2255, a petitioner’s “second or successive motion must be 

certified as provided in [28 U.S.C. § 2244] by a panel of the 

appropriate court of appeals.” 28 U.S.C. § 2255(h). Section 

2244 lists the pre-filing or gatekeeping requirements applicable 

to motions under § 2255(h)(2): (1) a petitioner must “show[] 

that the claim relies on 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. § 2244(b)(2)(A). 

Under § 2244, petitioners must make a prima facie 

showing that their § 2255 motions satisfy these three 

 

3 This Court has jurisdiction over Petitioners’ applications to 

file a second or successive petition for writ of habeas corpus 

under 28 U.S.C. §§ 2255(h) and 2244(b)(3). 
13

requirements, which this Court has characterized as a “light 

burden.” 28 U.S.C. § 2244(b)(3)(C); Hoffner, 870 F.3d at 307;

see also In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per 

curiam) (“Under our precedent, a prima facie showing in this 

context merely means a sufficient showing of possible merit to 

warrant a fuller exploration by the district court.”) (internal 

quotation marks and citations omitted). If the court of appeals

authorizes the motion, the District Court will have the

opportunity to “consider anew whether the petitioner” indeed 

meets the § 2244 requirements. Hoffner, 870 F.3d at 307. 

The parties concede that, pursuant to Davis, Petitioners’ 

claims are now timely. See Davis, 139 S. Ct. at 2336 

(“[Section] 924(c)(3)(B) is unconstitutionally vague”). The

Government argues that the Panel should nonetheless deny as 

futile the applications of petitioners Dupree, Smith, and 

McNeill because their predicate offenses qualify as crimes of 

violence under § 924(c)(3)(A), unlike those of petitioners 

Matthews and Williams, whose § 924(c) convictions were

predicated on Hobbs Act conspiracies. Whether the 

Petitioners’ crimes fall under the elements clause or the 

challenged residual clause is itself a merits inquiry. See 

Peppers, 899 F.3d at 226 (characterizing the determination of 

whether petitioner’s prior felony convictions qualify under the 

elements clause or the enumerated offenses clause as a merits 

issue). Therefore, we will not foreclose as futile Petitioners’ 

second or successive § 2255 motions because it is improper at 

this juncture. 

III. CONCLUSION

For the foregoing reasons, we find that Petitioners meet 

the gatekeeping requirements of § 2244, and we will authorize 

all of Petitioners’ second or successive § 2255 motions.