950 F.3d 909
6th Cir.
2020

IN RE: JOHN W. FRANKLIN,

No. 19-6093

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 3, 2020

20a0065p.06

NORRIS, SUTTON, and BUSH, Circuit Judges.

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0065p.06. On Motion for Leave to File a Second or Successive Motion to Vacate. United States District Court for the Eastern District of Kentucky at Lexington. Nos. 5:06-cr-00082-1; 5:10-cv-07112—Joseph M. Hood, District Judge. Decided and Filed: March 3, 2020.

COUNSEL

ON MOTION: John W. Franklin, Bennettsville, South Carolina, pro se. ON RESPONSE: Charles P. Wisdom, Jr., UNITED STATES ATTORNEY‘S OFFICE, Lexington, Kentucky, for Respondent.

ORDER

PER CURIAM. John W. Franklin, a federal prisoner proceeding pro se, moves for an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his sentence. See 28 U.S.C. §§ 2244(b), 2255(h). The government supports Franklin‘s motion.

In 2007, a jury convicted Franklin 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); possessing an unregistered firearm or destructive device, 26 U.S.C. § 5861(d); and possessing firearms while unlawfully using a controlled substance, 18 U.S.C. § 922(g)(3). The district court sentenced Franklin to 420 months of imprisonment, and we affirmed. United States v. Franklin, 298 F. App‘x 477, 479 (6th Cir. 2008).

In 2010, Franklin filed a § 2255 motion, arguing that trial and appellate counsel performed ineffectively. The district court denied the motion on the merits. This court declined to issue a certificate of appealability.

Franklin now moves for authorization to file a second or successive § 2255 motion, in which he would argue that his § 924(c) conviction should be vacated because his § 844(i) arson conviction no longer qualifies as a crime of violence in light of United States v. Davis, 139 S. Ct. 2319 (2019). The government agrees that this court should grant Franklin authorization to file a second or successive § 2255 motion because Davis announced a new rule of constitutional law that retroactively applies to cases on collateral review.

We may authorize the filing of a second or successive § 2255 motion only if the applicant‘s proposed claims rely on:

  1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
  2. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

Davis established a “new rule” because its “result was not dictated by precedent existing at the time the defendant‘s conviction became final.” Chaidez v. United States, 568 U.S. 342, 347 (2013). The spirited dissent in Davis and the circuit split that predated it suggest that precedent did not dictate the decision.

Ordinarily, lower courts do not apply a new rule announced by the Supreme Court retroactively to cases on collateral review until the Court has announced the rule‘s retroactive effect. Tyler v. Cain, 533 U.S. 656, 664 (2001). That comes with a narrow exception. Lower courts may determine on their own the retroactivity of new rules when “[m]ultiple cases ... necessarily dictate the retroactivity of the new rule.” Id at 664.The exception applies here. The Supreme Court‘s decision in Welch v. United States, 136 S. Ct. 1257, 1264–65 (2016), establishes the retroactivity of Davis. Welch explained that decisions announce a substantive rule and are thus retroactive when they “alter[] the range of conduct ... that the law punishes.” Id. That occurred in Johnson v. United States, 135 S. Ct. 2551 (2015), because it “changed the substantive reach of the Armed Career Criminal Act.” Welch, 136 S. Ct. at 1265; see id. at 1264 (“[N]ew substantive rules generally apply retroactively.” (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004))). So too in Davis, where the Court narrowed § 924(c)(3) by concluding that its second clause was unconstitutional. 139 S. Ct. at 2336.

That leaves the question of whether Franklin‘s proposed petition relies on Davis‘s rule. His § 924(c) conviction was premised upon his use of a destructive device in furtherance of the § 844(i) offense. Davis offers Franklin no benefit if § 844(i) offenses fall under § 924(c)(3)(A), which survived Davis. In other words, the question is whether § 844(i) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Arson under § 844(i) does not appear to qualify as a crime of violence under § 924(c)(3)(A) because it can be committed against “any building ... used in interstate or foreign commerce,” including one owned by the arsonist. Id. § 844(i). Because that means Franklin‘s § 924 conviction must have been based on § 924(c)(3)(B), which Davis invalidated, his proposed petition relies on Davis‘s rule.

Accordingly, we GRANT Franklin‘s motion for authorization to file a second or successive § 2255 motion and TRANSFER the case to the United States District Court for the Eastern District of Kentucky for further proceedings.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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