In re: Kenneth Graham, 61 F.4th 433

Kenneth Graham was convicted in 2015 of attempted Hobbs Act robbery (18 U.S.C. §1951), possession of a firearm in furtherance of a crime of violence (18 U.S.C. §924(c)), and being a felon in possession (18 U.S.C. §922(g)); his §924(c) sentence was a consecutive 10 years.
Graham’s initial 28 U.S.C. §2255 motion (filed 2018) was dismissed as untimely; a 2019 authorization request to file a successive §2255 was summarily denied.
The Supreme Court and this Circuit issued intervening authority: Davis invalidated §924(c)’s residual clause; Fourth Circuit’s Taylor held attempted Hobbs Act robbery does not qualify as a §924(c) "crime of violence" under the elements clause; the Supreme Court affirmed Taylor.
Graham filed a renewed authorization motion to bring a successive §2255 challenging his §924(c) conviction under Davis; the parties agreed §2244(b)(1) does not bar relief and that §2255(h)(2) might be satisfied.
The Fourth Circuit addressed whether 28 U.S.C. §2244(b)(1) (which on its face limits second/successive relief under §2254) applies to successive §2255 motions, and whether Graham makes the prima facie showing required by §2255(h).
The court concluded §2244(b)(1) does not apply to §2255 motions, found Davis to be a new, previously unavailable retroactive rule for Graham, and granted authorization to file a successive §2255 motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 28 U.S.C. §2244(b)(1) applies to second or successive §2255 motions	§2244(b)(1) refers only to §2254 and thus does not apply to federal §2255 motions	Government agreed it does not bar Graham’s claim	Court holds §2244(b)(1) does not apply to successive §2255 motions
Whether §2255(h) incorporates §2244(b)(2)’s gatekeeping	§2255(h) should not incorporate §2244(b)(2); §2255(h) has its own, different test	Government agreed; courts should apply §2255(h)’s independent standard	Court finds §2255(h) does not import §2244(b)(2) (or b(1)), relying on textual differences and to avoid conflict/absurdity
Whether Davis announced a new rule, retroactive and previously unavailable to Graham	Davis is a new substantive constitutional rule, made retroactive by the Supreme Court and decided after Graham’s last federal proceeding	Government agreed Graham lacked access to Davis earlier	Court holds Davis is a new rule and was previously unavailable to Graham, satisfying §2255(h)(2)
Whether Graham made the required prima facie showing to authorize a successive §2255	Graham’s Davis-based claim, coupled with Taylor (attempted Hobbs Act robbery not a crime of violence), makes success reasonably likely	Government concurred Graham met prima facie showing	Court grants authorization to file a successive §2255 motion

Johnson v. United States, 576 U.S. 591 (struck down ACCA residual clause as unconstitutionally vague)
United States v. Davis, 139 S. Ct. 2319 (invalidated §924(c)’s residual clause)
United States v. Simms, 914 F.3d 229 (4th Cir.) (held §924(c)’s residual clause invalid in light of Johnson/Dimaya)
United States v. Taylor, 142 S. Ct. 2015 (affirmed that attempted Hobbs Act robbery is not a §924(c) crime of violence)
Teague v. Lane, 489 U.S. 288 (established test for whether a rule is "new" for habeas purposes)
In re Thomas, 988 F.3d 783 (4th Cir.) (found Davis claim met §2255(h)(2) and guided the court’s analysis)