Dаrnell A. MOORE, Petitioner, v. UNITED STATES of America, Respondent.
No. 16-1612
United States Court of Appeals, First Circuit.
September 13, 2017
Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Kenneth A. Blanco, Acting Assistant Attorney General, U.S. Department of Justice, Criminal Division, Trevor N. McFadden, Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division, William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz, Assistant U.S. Attorney, Chief, Appellate Division, were on brief, for respondent.
Before THOMPSON, KAYATTA, and BARRON, Circuit Judges.
KAYATTA, Circuit Judge.
Darnell Moore seeks to file a successive motion to vacate his federal sentence under
I.
In July 2000, Darnell Moоre was charged with two counts of unarmed bank robbery, in violation of
The sentencing court concluded that Moore fell under the career offender guideline. Moore, 362 F.3d at 131-32. That guideline applied to defendants who were at least eighteen years old at the time of the offense of conviction, whose offense of conviction was a “crime of violence or a controlled substance offense,” and who had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
any offense under federal or statе law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The career offender guideline increased Moore‘s criminal history category to VI and, because the unarmed bank robbery conviction carried a statutory maximum sentence of twenty years, see
In March 2005, Moore filed a motion to vacate his sentence under
In June 2015, the Supreme Court handed down its opinion in Johnson II. The opinion addressed the ACCA, which mandates the increase of minimum and maximum sentences for certain crimes whenever the defendant has previously been convicted of a “violent felony.” The ACCA‘s definition of a “violent felony” reads, in relevant part:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ...
In Johnson II, the Supreme Court held that the clause underlined above, called, the “residual clause,” was so vague that it violated due process for the ACCA to use it to increase minimum or maximum allowable sentences. 135 S.Ct. at 2557. The Court‘s prior opinions had established that the residual clause was to be applied in the following way: First, a court would identify an “ordinary case” of the crime in question. Id. Second, the court would determine whether that ordinary case presented a serious potential risk of physical injury to another, with the level of risk that qualified as “serious” being identified with reference to the level of risk involved in the enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives). Id.
The Court concluded that this way of analyzing the residual clause “combin[ed] indeterminacy about how to measure the
The question before the Court in Welch was whether Johnson II applied retroactively to cases on collateral review. The first step in answering this question was determining whether Johnson II announced a new rule of constitutional law. “[A] case announces a new rule ... when it breaks new ground or imposes а new obligation’ on the government.” Chaidez v. United States, 568 U.S. 342, 347, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (first alteration in original) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (O‘Connor, J., plurality opinion)). “To put it differently, ... a case announces a new rule if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.” Id. (emphasis omitted) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). A holding is only dictated by precedent if “it would have been ‘apparent to all reasonable jurists.‘” Id. (quoting Lambrix v. Singletary, 520 U.S. 518, 527-528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)). However, “a case does not ‘announce a new rule, [when] it [is] merely an application of the principle that governed’ a prior decision to a different set of facts.” Id. (alterations in original) (emphasis omitted) (quoting Teague, 489 U.S. at 307, 109 S.Ct. 1060). The parties in Welch agreed that Johnson II announced a new rule of constitutional law.
A new rule of constitutional law applies retroactively to cases on collateral review only if it is a “substantive rule[],” Welch, 136 S.Ct. at 1264 (emphasis omitted) (quoting Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)), or if it is a “watershed rule[] of criminal procedure,” id. (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)). The parties in Welch also agreed that Johnson II was not a watershed rule of criminal procedure. Id. So, the question before the Court in Welch was whether Johnson II announced a substantive rule.
The Court concluded that it did. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 1264-65 (quoting Schriro, 542 U.S. at 353, 124 S.Ct. 2519). The Court reasoned that “[b]y striking down the residual clause as void for vagueness, [Johnson II] changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.‘” Id. at 1265 (second alteration in original) (quoting Schriro, 542 U.S. at 353, 124 S.Ct. 2519). Johnson II was a substantive rule because, before that decision, “the [ACCA] applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.” Id. After that decision, by contrast, “‘even the use of impeccable factfinding procedures could not legitimate’ a sentence based on that clause.” Id. (quoting United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971)). Johnson II was not a procedural decision be-
Moore filed this § 2255 motion in May 2016, which was both after Welch and within one year of Johnson II.3 He argues that the new rule established in Johnson II and made retroactive by Welch applies directly to the residual clause of the pre-Booker career offender guideline under which he was sentenced. That residual clause is identical to the ACCA residual clause at issue in Johnson II.
While this motiоn was pending before us, the Supreme Court decided in Beckles v. United States that the identical residual clause employed in the post-Booker advisory guidelines is “not subject to a vagueness challenge under the Due Process Clause.” — U.S. —, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017). Beckles‘s reasoning relied on the conclusion that the post-Booker guidelines “do not fix the permissible range of sentences,” id., and therefore “do not implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement,” id. at 894. At our request, the parties filed supplemental briefs addressing both Beckles and two recent cases from this circuit that might bear on whether Moore‘s predicate offenses satisfy other clauses of the crime of violence definition. See United States v. Faust, 853 F.3d 39 (1st Cir.), reh‘g denied, 869 F.3d 11, 2017 WL 3045957 (1st Cir. July 19, 2017); United States v. Tavares, 843 F.3d 1 (1st Cir. 2016), reh‘g denied, 849 F.3d 529 (1st Cir. 2017).
II.
We next set up the legal lens through which we view Moore‘s motion, and then explain why that view favors letting Moore litigаte his second or successive § 2255 motion.
A.
This motion comes to us under the following statutory provision:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
...
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
First, “[t]he court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.”
Second, “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”
Third, we may “authorize the filing of a second or successive application only if [we] determine[] that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”
A “prima facie showing” at the certification stage is merely “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Rodriguez, 139 F.3d at 272-73 (quoting Bennett, 119 F.3d at 469). When deciding whether to certify a § 2255 motion, “our task is not to decide for certain whether the petition has merit, but rather to determine whether it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition.” Evans-García, 744 F.3d at 237 (quoting Rodriguez, 139 F.3d at 273). Although the standard, thus described, appears quite easy to satisfy, Rodriguez nevertheless contains an admonition that “despite its superficially lenient language, the [prima facie] standard erects a high hurdle.” Rodriguez, 139 F.3d at 273. Reconciling these seemingly contradictory statements about the nature of the prima facie showing requires close attention to the facts of our prior cases.
Rodriguez addressed a petitioner‘s successive motion under § 2254 for release from state custody. The petitioner argued that the reasonable doubt instructions at his trial had violated the due process clause under Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), which held that a reasonable
Evans-García addressed the § 2255 motions of two petitioners, both of whom argued that they had been subject to a mandatory sentence of life without the possibility of parole for a crime committed while under the age of eighteen, in violation of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Evans-García, 744 F.3d at 236. The government conceded that Miller announced a new rule of constitutional law that applied retroactively to cases on collateral review and that was previously unavailable. Id. at 238. We accepted all three concessions, although we paused over the concession about retroactivity. Id. at 238-40. We ultimately declined to engage in a “full inquiry” at the certification stage, “even on a purely legal issue such as retroactivity.” Id. at 237. We noted that
[w]e generally do not rule on questions—whether of fact or of law—until a district court has done so, a practice that enhances the quality of our decisions both by allowing us to consider the district court‘s analysis and by allowing the parties to hone their arguments before presenting them to us.
Id. at 237-38 (citation omitted). As to one of the petitioners, whose sentencing guidelines range under the pre-Booker guidelines was life imprisonment,4 we certified the petition based on the government‘s three concessions. Id. at 236-37, 240. As to the other petitioner, we denied certification because his guidelines range was 292 to 365 months in prison, from which the district court decided to depart upward to a life sentence. Id. at 240-41. Accordingly, “he was not sentenced pursuant to any statute or guideline that mandated a sentence of life without parole,” id. at 240, so Miller did not apply to him based on the undisputed facts. We held that “a circuit court should deny certification where it is clear as a matter of law, and without the need to consider contested evidence, that the petitioner‘s identified constitutional rule does not apply to the petitioner‘s situation.” Id.
Rodriguez and Evans-García establish a consistent approach for analyzing whether to certify a successive motion. The court of appeals should first consider whether, as a legal matter, the petitioner‘s motion relies on a new rule of constitutional law that has been made retroactive to
B.
Having explained the focused yet tentative nature of the examination called for in evaluating a request to file a second or successive § 2255 motion, we turn next to Moore‘s motion. Distilled to its essence, his request for relief under § 2255 strikes us as quite straightforward. Moore contends first that Johnson II announced a new rule of constitutional law, which Welch made retroactive. That rule is this: The text of the residual clause, as employed in the ACCA, is too vague to provide, consistent with due process, a standard by which courts must fix criminal sentences. Moore then simply asks that this new rule be applied directly to another law, the
The government balks at this conclusion because a necessary link in Moore‘s argument on the merits of his motion is establishing that the SRA “fixed” sentences.6 This proposition, the government argues, would be a new rule of constitutional law, rather than a rule driven solely by the force of Johnson II as precedent. Thus, the government continues, Moore‘s request for certification must fail for several different reasons. First, one of the new rules of constitutional law that Moore‘s motion relies upon (as framed by the government) has not been made retroactive by the Supreme Court either directly or by logical implication. See Tyler v. Cain, 533 U.S. 656, 666-67, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Second, on the government‘s reading,
We are not sufficiently persuaded that we would need to make new constitutional law in оrder to hold that the pre-Booker SRA fixed sentences. Rather, it is likely that we would need only interpret the pre-Booker SRA; i.e., a statute. Moreover, the question of statutory interpretation we would likely need to address is one that the Supreme Court essentially resolved in Booker, when it ruled that the SRA contained “provisions that ma[d]e the Guidelines binding on district judges.” 543 U.S. at 233, 125 S.Ct. 738 (opinion of Stevens, J.); see id. at 234, 125 S.Ct. 738 (describing
It is true that neither the SRA nor Booker used in relevant context the verb “fix.” But nothing in Johnson II or Beckles suggests that “fix” or “fixes” is a term of art, rather than as a shorthand way of saying that a statutory test, rather than judicial judgment or discretion, mandates the minimum and maximum sentences. See Beckles, 137 S.Ct. at 894-95; Johnson II, 135 S.Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)). In short, we
Framed in another way, the government‘s argument turns on the degree of generality with which we define the rule adopted in Johnson II. Does one describe the rule as being no more than the technical holding that the residual clause as employed in the ACCA is unconstitutionally vague? If so, then arguably only successive § 2255 motions based on the ACCA‘s residual clause would satisfy
Both parties appear to agree that the rule is broader than the technical holding of Johnson II; they just disagree about exactly how far it extends. This agreement makes sense, given that Congress in § 2255 used words such as “rule” and “right” rather than “holding.” Congress presumably used these broader terms because it recognizes that the Supreme Court guides the lower courts not just with technical holdings but with general rules that are logically inherent in those holdings, thereby ensuring less arbitrariness and more consistency in our law. Perhaps for this reason, the government agreed at oral argument that the rule in Johnson II would apply to another statute (“ACCA, Jr.“) that mirrored the ACCA but was aрplied to different underlying crimes. Although the residual clause in the pre-Booker guidelines is not quite ACCA, Jr., on one reading of the relevant statutes, it is not clearly different in any way that would call for anything beyond a straight-forward application of Johnson II. Indeed, if one takes seriously, as we must, the Court‘s description of the pre-Booker guidelines as “mandatory,” one might describe the residual clause of the pre-Booker guidelines as simply the ACCA‘s residual clause with a broader reach, in that it fixed increased minimum and maximum sentences for a broader range of underlying crimes. These observations underline the critical point: Moore‘s § 2255 motion could succeed even on the gоvernment‘s understanding of the rule created by Johnson II, if under the SRA the pre-Booker guidelines fixed sentences.
For this reason, and for the purposes of deciding Moore‘s application for leave to file a successive § 2255 motion, we are not sufficiently convinced by the recent decisions of the Fourth and Sixth Circuits concluding that first § 2255 motions that sought to apply Johnson II to the pre-Booker guidelines were outside the statute of limitations for such motions. See United States v. Brown, No. 16-7056, 868 F.3d 297, 301, 2017 WL 3585073, at *3 (4th Cir. Aug. 21, 2017); Raybon v. United States, No. 16-2522, 867 F.3d 625, 627-28, 2017 WL 3470389, at *1 (6th Cir. Aug. 14, 2017). Both courts concluded that the § 2255 motions under consideration had not been filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court” and the right asserted had not “been newly recognized by the Supreme Court and madе retroactively applicable to cases on collateral review,”
Turning to what is reasonably viewed as the issue of statutory interpretation at the heart of Moore‘s attempt to apply the rule of Johnson II, the government points to the possibility of departures under the pre-Booker guidelines, arguing that the SRA did not fix even minimum sentences as much as the ACCA does. Departures, however, were limited in scope, and sentencing courts had little leeway in employing them. See, e.g., United States v. Louis, 300 F.3d 78, 84 (1st Cir. 2002) (holding that the defendant did not qualify for a family ties departure); United States v. Vasquez, 279 F.3d 77, 82 (1st Cir. 2002) (holding that “a district court may not depart downward оn the basis that deportable status ostensibly carried with it certain adverse collateral penal consequences“); United States v. Snyder, 136 F.3d 65, 70 (1st Cir. 1998) (holding that disparity between state and federal sentences could not justify a departure); United States v. Dethlefs, 123 F.3d 39, 49 (1st Cir. 1997) (holding that “multiple defendants participating in the entry of guilty pleas, without quite a bit more, cannot constitute the meaningful atypicality that is required to warrant a departure“); United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996) (holding that disparity between sentences for crack and cocaine could not justify a departure); United States v. Jackson, 30 F.3d 199, 202-03 (1st Cir. 1994) (holding that the district court‘s conclusion that a guidelines sentence was excessive, given the defendant‘s age, could not justify a depаrture); Reid v. United States, No. 03-CR-30031, 252 F.Supp.3d 63, 67 n.2, 2017 WL 2221188, at *4 n.2 (D. Mass. May 18, 2017) (Ponsor, J.) (describing the guidelines prior to Booker as a “rigidly imposed ... straitjacket“). Indeed, the Supreme Court addressed the significance of departures in Booker. The Court acknowledged that one provision of the SRA
permit[ted] departures from the prescribed sentencing range in cases in which the judge “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”
543 U.S. at 234, 125 S.Ct. 738 (opinion of Stevens, J.) (quoting
At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. Were this the case, there would be no [Sixth Amendment] problem. Importantly, however, departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range.
Id.; see also Pepper v. United States, 562 U.S. 476, 497-98, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (reiterating this reasoning).
There is no suggestion, moreover, that Moore qualified for a departure at the time of his sentencing hearing. See Moore, 362 F.3d at 132-34 (describing how the district court denied the government‘s motion for a downward departure based on substаntial assistance because Moore absconded before sentencing). Thus, it may be appropriate for the district court to consider whether the residual clause of the pre-Booker career offender guideline was void for vagueness only as applied to Moore.
It is true that Beckles declared Johnson II categorically inapplicable to the post-Booker advisory guidelines. But that does not mean that the rule established by Johnson II must always apply to a particular provision in every case or not at all. Beckles held that a feature shared by all the post-Booker guidelines—namely, that they are advisory—rendered them categorically exempt from vagueness challenges. If there is truly a difference in how mandatory the pre-Booker guidelines were from case to cаse, then it may well be necessary to invalidate the residual clause for those defendants for whom the guidelines fixed sentences but not for others.
We leave it to the district court to decide in the first instance if it is appropriate to consider Moore‘s vagueness challenge as applied or categorically and, in either event, whether the pre-Booker guidelines fixed Moore‘s sentencing range in the relevant sense that the ACCA fixed sentences.
C.
The government argues, in the alternative, that this court may deny certification for a successive § 2255 motion on the ground of procedural default. We disagree.
The government has not cited a single case in which a court denied certification of a successive § 2255 motion on the grounds of procedural default. Instead, it has cited two cases from other circuits holding that a court of appeals may deny authorization where the motion is untimely. See In re Vassell, 751 F.3d 267, 270-72 (4th Cir. 2014); In re Campbell, 750 F.3d 523, 532 (5th Cir. 2014) (requiring that the motion be clearly untimely). But see In re McDonald, 514 F.3d 539, 543 (6th Cir. 2008) (adopting the opposite rule).
Whether the Fourth and Fifth Circuits are right on this point or not, the inquiry required for determining whether a claim is timely—i.e., comparing the date of the motion and the date of the Supreme Court opinion it seeks to apply—is nowhere near as complex as the cause and prejudice inquiry required for assessing procedural default. To require this court to аssess procedural default in this gatekeeping proceeding would create even more tension with Congress‘s instruction that proceedings of this type be decided quickly.
We have left much work for the district court. That is by necessity, as the district court is required to redo the very analysis performed in this opinion before entertaining a successive § 2255 motion. See
III.
For the foregoing reasons, we certify that Moore‘s successive motion satisfies