950 F.3d 909
6th Cir.2020Background
- Defendant John W. Franklin was convicted in 2007 of arson (18 U.S.C. § 844(i)), using a destructive device in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(B)(ii)), possession of an unregistered destructive device (26 U.S.C. § 5861(d)), and possession of firearms while unlawfully using a controlled substance (18 U.S.C. § 922(g)(3)); he was sentenced to 420 months and the conviction was affirmed on appeal.
- Franklin filed a § 2255 motion in 2010 alleging ineffective assistance of counsel; the district court denied relief and this court denied a certificate of appealability.
- Franklin seeks authorization under 28 U.S.C. §§ 2244(b), 2255(h) to file a second or successive § 2255 petition, arguing that United States v. Davis announced a new, retroactive rule that invalidates his § 924(c) conviction because his § 844(i) arson predicate is not a crime of violence.
- The government supports Franklin’s request, agreeing that Davis announced a new substantive constitutional rule that applies retroactively on collateral review.
- The panel assessed whether Davis qualifies as a retroactive new rule and whether Franklin’s § 924(c) conviction depended on the now-invalidated clause of § 924(c)(3).
- The court concluded § 844(i) can be committed against the actor’s own property (so it does not categorically involve the required use of force under § 924(c)(3)(A)), meaning Franklin’s § 924(c) conviction must have rested on § 924(c)(3)(B), which Davis invalidated; the court granted authorization and transferred the matter to the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to authorize a second or successive § 2255 under § 2255(h)(2) based on Davis | Davis announced a new constitutional rule retroactively applicable to collateral cases, so Franklin may challenge his § 924(c) conviction | Government agrees Davis is a new retroactive rule and supports authorization | Authorization granted; case transferred to district court |
| Whether § 844(i) arson is a crime of violence under § 924(c)(3)(A) | Franklin: § 844(i) does not require use of force against another because it can cover arson of the actor's own property | Government implicitly concedes retroactivity; court evaluates categorical match | Court concludes § 844(i) can be committed against own property and thus does not categorically meet § 924(c)(3)(A); Franklin's § 924(c) relied on (B), invalidated by Davis |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (narrowed § 924(c)(3) by invalidating the residual clause)
- Welch v. United States, 136 S. Ct. 1257 (explained that new substantive rules are retroactive on collateral review)
- Johnson v. United States, 135 S. Ct. 2551 (held ACCA residual clause unconstitutional; example of substantive rule altering criminal reach)
- Chaidez v. United States, 568 U.S. 342 (defined when a decision announces a new rule not dictated by precedent)
- Tyler v. Cain, 533 U.S. 656 (explained narrow circumstances when lower courts may decide retroactivity)
- Schriro v. Summerlin, 542 U.S. 348 (stated new substantive rules generally apply retroactively)
- United States v. Franklin, [citation="298 F. App'x 477"] (6th Cir. 2008) (appellate decision affirming Franklin's convictions)