In re: Gieswein, 802 F.3d 1143

Gieswein, a federal prisoner, was convicted of possession of a firearm after a felony conviction and witness tampering.
He seeks authorization to file a second or successive § 2255 motion challenging his firearms sentence under 28 U.S.C. § 2255(h).
The government argues Johnson v. United States announces a new rule of constitutional law and retroactivity; the court must assess gate-keeping requirements for the filing of a second or successive motion.
Johnson held that part of the ACCA residual clause is unconstitutional as applied, creating a new rule of constitutional law.
The district court and this court must determine whether Johnson’s new rule is retroactive to collateral review under § 2255(h)(2).
The court ultimately denies authorization to file a second or successive § 2255 motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson announced a new rule of constitutional law.	Gieswein contends Johnson created a new rule.	The government disputes the characterization, but the court ultimately agrees Johnson announced a new rule.	Johnson announced a new rule of constitutional law.
Whether Johnson is retroactive to cases on collateral review.	Gieswein argues Johnson retroactive by retroactivity principles and related holdings.	The court declines to adopt a broad retroactivity conclusion and analyzes Supreme Court holdings directly.	Supreme Court has not explicitly held Johnson retroactive; not retroactive for § 2255(h)(2) purposes.
Whether a combination of Supreme Court holdings necessarily dictates retroactivity of Johnson.	Gieswein relies on Price/Rivero-style readings to claim retroactivity.	The court rejects that combination as determinative without a direct Supreme Court holding.	No necessary combination of holdings dictates retroactivity of Johnson.

Chaidez v. United States, 133 S. Ct. 1103 (2013) (new rule not dictated by precedent; governs retroactivity analysis)
Johnson v. United States, 135 S. Ct. 2551 (2015) (residual-clause ACCA rule unconstitutional; new rule of constitutional law)
Tyler v. Cain, 533 U.S. 656 (2001) (Teague retroactivity framework; govern retroactivity determinations)
Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002) (limitations on court’s retroactivity analysis for § 2255 motions)
Summerlin v. Summerlin, 542 U.S. 348 (2004) (new substantive rules and retroactivity considerations)
In re Shines, 696 F.3d 1330 (10th Cir. 2012) (per curiam guide on gate-keeping for second or successive § 2255 motions)