Kamil Hakeem Johnson v. United States

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Kamil Hakeem JOHNSON, Petitioner v. UNITED STATES of America, Respondent.

No. 12-3744

United States Court of Appeals, Eighth Circuit.

Submitted: May 23, 2013. Filed: July 12, 2013.

cluded to protect against the risks of a spouse‘s unwitting waiver of [the spousal rights conferred by § 1055(a)].”

Hagwood v. Newton, 282 F.3d 285, 290 (4th Cir. 2002) (citation omitted). Given ERISA‘s strict compliance requirements, we conclude that the antenuptial agreement did not contain an acknowledgment by Kathy sufficient to satisfy § 1055(c)(2)(A)(iii). Accordingly, Michael‘s designation of his Parents as beneficiaries of the MEC 401(k) Plan must yield to Kathy‘s rights as surviving spouse.

III. Conclusion

The judgment is affirmed.

Kamil Hakeem Johnson, pro se.

Jeffrey S. Paulsen, AUSA, argued, Minneapolis, MN, for Appellee.

Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.

PER CURIAM.

Kamil Hakeem Johnson seeks authorization to file a successive 28 U.S.C. § 2255 motion, asserting that

Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), which held that a sentencing scheme that requires a sentence of life imprisonment without parole for certain crimes committed by defendants who were under the age of 18 violates the Eighth Amendment, announced a new rule that applies retroactively, see 28 U.S.C. § 2255(h)(2). We conclude that Mr. Johnson has made a prima facie showing, see 28 U.S.C. §§ 2255(h), 2244(b)(3)(C), that his motion contains “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)(2), and we therefore grant him authorization to file a successive § 2255 motion.

In granting authorization we join most other circuits in adopting the proposition that a prima facie showing in this context is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court,” see

Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997). See

Case v. Hatch, — F.3d —, —, 2013 WL 1501521, at *1, 10–12 (10th Cir. April 12, 2013);

Goldblum v. Klem, 510 F.3d 204, 219 (3rd Cir.2007);

In re Williams, 330 F.3d 277, 281 (4th Cir.2003);

In re Holladay, 331 F.3d 1169, 1173–74 (11th Cir.2003);

Bell v. United States, 296 F.3d 127, 128 (2d Cir.2002);

Reyes-Requena v. United States, 243 F.3d 893, 898–99 (5th Cir.2001);

Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir.1998);

Rodriguez v. Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir.1998), abrogated on other grounds by

Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). We emphasize that the “district court must not defer” to our “preliminary determination” in granting the authorization,

Case, — F.3d at —, 2013 WL 1501521, *11, as our “grant is ... tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion,”

Bennett, 119 F.3d at 469–70 (citing 28 U.S.C. § 2244(b)(4)). The government here has conceded that Miller is retroactive and that Mr. Johnson may be entitled to relief under that case, and we therefore conclude that there is a sufficient showing here to warrant the district court‘s further exploration of the matter.

COLLOTON, Circuit Judge, dissenting.

Like the Eleventh Circuit in

In re Morgan, 717 F.3d 1186 (11th Cir.2013), reh‘g denied,

717 F.3d 1186, 2013 WL 2476318 (11th Cir. June 10, 2013), I would deny the motion for authorization to file a second or successive motion under 28 U.S.C. § 2255, because the movant has not made a prima facie showing that

Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), announced a new rule of constitutional law that has been “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). A new rule is not “made retroactive” unless the Supreme Court holds it to be retroactive.

Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Although movant Kamil Hakeem Johnson and the government suggest reasons why reasonable jurists could believe that the Court in the future might conclude that Miller announced a “substantive” rule, and therefore should apply retroactively, see

Schriro v. Summerlin, 542 U.S. 348, 351–352 n. 4, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the motion for authorization has merit only if the Court‘s holdings to date “necessarily dictate retroactivity of the new rule.”

Tyler, 533 U.S. at 663 n. 5, 121 S.Ct. 2478. As the government acknowledges in its response to the pending motion, “[t]o date, the new rules the Court has treated as substantive have categorically prohibited a particular outcome for a particular class of defendants, regardless of the procedure employed.” Gov‘t Resp. at 12. Miller does not fit within that class of new rules; it creates the possibility of a different result through individualized sentencing,

Miller, 132 S.Ct. at 2460, but it does not prohibit an outcome of life imprisonment for a juvenile like Johnson, who shot a .38 caliber pistol in the direction of gang members at a gas station and killed a four-year-old girl returning home from a day at a neighborhood festival. See

id. at 2469 (“[W]e do not foreclose a sentencer‘s ability to make that judgment in homicide cases“); see also

United States v. Crenshaw, 359 F.3d 977, 981–83 (8th Cir.2004) (recounting the evidence against Johnson). To rule that Miller announced a “substantive” rule would require an extension of the Supreme Court‘s holdings, and the motion for authorization should therefore be denied.

Case Details

Case Name: Kamil Hakeem Johnson v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 12, 2013

Citation: 720 F.3d 720

Docket Number: 12-3744

Court Abbreviation: 8th Cir.