Raphael L. Donnell, Petitioner
United States of America, Respondent.
Motion for Authorization to File a Second or Successive
Motion Under 28 U.S.C. § 2255
WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Donnell moves for authorization to file a second or
successive motion under 28 U.S.C. § 2255(h). He seeks to
challenge a sentence that was imposed in 2008 after the
district court applied the career-offender sentencing
guideline, USSG § 4B1.1, in calculating Donnell's
advisory sentencing range. Citing Johnson v. United
States, 135 S.Ct. 2551 (2015), Donnell seeks to argue
that the residual clause of USSG § 4B1.2(a)(2) is
unconstitutionally vague and that his sentence should be
court may authorize a second or successive motion under
§ 2255 if the movant makes a "prima facie
showing" that the motion "contain[s] . . . 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),
2244(b)(3)(C); see Kamil Johnson v. United States,
720 F.3d 720, 720 (8th Cir. 2013) (per curiam). A prima facie
showing is "a sufficient showing of possible merit to
warrant a fuller exploration by the district court."
Kamil Johnson, 720 F.3d at 720 (quoting Bennett
v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
Supreme Court in Johnson announced a new rule of
constitutional law. The Court held that the residual clause
of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally
vague and that increasing a defendant's sentence under
that clause violated the constitutional right to due process.
In Welch v. United States, 136 S.Ct. 1257 (2016),
the Court made the new rule of Johnson retroactive
to cases on collateral review.
seeks to extend Johnson and Welch by urging
that the residual clause of USSG § 4B1.2(a)(2) is also
unconstitutionally vague. He further contends that the
constitutional rule that he proposes for the sentencing
guidelines should be applied retroactively to cases on
collateral review. Whether an advisory sentencing guideline
is susceptible to a vagueness challenge is an open question
in this circuit. See United States v. Ellis, 815
F.3d 419, 421 (8th Cir. 2016). The issue is reasonably
debatable, and the answer is not dictated by
Johnson. Id. Compare, e.g., United
States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *3-4
(6th Cir. May 13, 2016), and United States v.
Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), with
United States v. Matchett, 802 F.3d 1185, 1193-96 (11th
Cir. 2015), and United States v. Lee, No. 13-10517,
2016 WL 2638364, at *7-10 (9th Cir. May 6, 2016) (Ikuta, J.,
dissenting). For Donnell's successive motion to succeed,
therefore, the post-conviction court must announce a second
new rule that extends Johnson to the sentencing
2255(h)(2) says that a second or successive motion must be
certified "to contain" a new rule of constitutional
law that has been made retroactive by the Supreme Court.
"To contain" means "to consist of wholly or in
part, " to "comprise, " or to
"include." Webster's Third New
International Dictionary 491 (2002). Mere citation of a
new rule in a successive motion is not sufficient to justify
certification. A movant surely cannot be authorized to pursue
a claim unrelated to the new rule simply by citing
Johnson and Welch and claiming that his
motion "contains" a new rule. The new rule must
have a nexus to the right asserted in the motion.
determining what nexus is required, we must view §
2255(h) in context. The meaning of § 2255(h)(2) is
informed by surrounding and related provisions. We glean from
this context that to satisfy the prerequisites for the filing
of a successive motion, the new rule contained in the motion
must be a new rule that recognizes the right asserted in the
significant related provision concerns the statute of
limitations. Ordinarily, a § 2255 motion must be filed
within one year of the date when a conviction becomes final.
28 U.S.C. § 2255(f)(1). Section 2255(f)(3), however,
establishes an extended statute of limitations of one year
from "the date on which the right asserted was
initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review."
28 U.S.C. § 2255(f)(3) (emphasis added). Section
2255(h)(2) should be construed in pari materia with
§ 2255(f)(3), as the limitations provision undoubtedly
was designed to accommodate second or successive motions
authorized under § 2255(h)(2). Section 2255(h)(2) is
thus more naturally understood to require certification that
a successive motion contains a new rule that recognizes the
right asserted in the motion. The structure of the statute
counsels against construing § 2255(h)(2) more broadly to
authorize the filing of successive motions that are routinely
barred by the statute of limitations.
parallel provision for successive state habeas petitions is
consistent with this understanding. Section 2244(b)(2)(A)
requires certification that a claim "relies on" a
new rule, and it makes sense to interpret § 2255(h)(2)
similarly despite a modest difference in wording. See
Bennett, 119 F.3d at 469; cf. United States v.
Hamilton, 604 F.3d 572, 574 (8th Cir. 2010). A claim
"relies on" a new rule when it is "based
on" a new rule, Calderon v. Thompson, 523 U.S.
538, 558 (1998), and this court has applied that standard to
motions for authorization under § 2255(h)(2). Woods
v. United States, 805 F.3d 1152, 1153 (8th Cir. 2015)
(per curiam); Williams v. United States, 705 F.3d
293, 294 (8th Cir. 2013) (per curiam). A claim is truly
"based on" a new rule only when the new rule
recognizes the right asserted. See Webster's Third
New International Dictionary 180 (defining
"base" as "the fundamental part of something:
Essence, Foundation"). Where a claim depends on
recognition of a second new rule, the claim is best
understood as relying on that second rule for a grant of
§ 2255(h)(2) to require a new rule that recognizes the
right asserted in the successive motion also aligns with the
remainder of § 2255(h). Section 2255(h)(2) is paired
with § 2255(h)(1), which concerns authorization for
successive motions based on newly discovered evidence. Where
newly discovered evidence is the ground for authorization,
that evidence must be sufficient to justify a grant of
relief. 28 U.S.C. § 2255(h)(1). This requirement in
§ 2255(h)(1) fortifies our conclusion that a "new
rule of constitutional law" that warrants authorization
under § 2255(h)(2) likewise must be sufficient to
justify a grant of relief. It is not enough for the
successive motion to cite a new rule that merely serves as a
predicate for urging adoption of another new rule that would
recognize the right asserted by the movant.
successive motion seeks to assert a new right that has not
been recognized by the Supreme Court or made retroactive on
collateral review. His motion urges the creation of a second
new rule that would apply Johnson and the
constitutional vagueness doctrine to a provision of the
advisory sentencing guidelines. We therefore conclude that
the successive motion should not be certified "to
contain" a new rule made retroactive by the Supreme
Court as required by § 2255(h)(2). Accord In re
Stine, No. 16-40505, slip op. at 2-3 (5th Cir. June 2,
2016) (per curiam); Richardson v. United States, ...