Thomas Hoffner, Jr. v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 15-2883
_____________

In Re: THOMAS F. HOFFNER, JR.,
Petitioner
______________

On Application for Leave to File a
Successive Habeas Petition
pursuant to 28 U.S.C. § 2255(h)(2)
related to E.D. Pa. No. 2-00-cr-00456
before the Honorable Harvey Bartle, III, District Judge
_____________

Argued: July 18, 2017
______________

Before: McKEE, AMBRO and RESTREPO, Circuit Judges.

(Filed: September 7, 2017)
______________

Lisa B. Freeland [ARGUED]
Office of Federal Public Defender
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
 Counsel for Petitioner

Louis D. Lappen
Robert A. Zauzmer [ARGUED]
Emily McKillip
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Counsel for Respondent

______________

OPINION OF THE COURT
______________

RESTREPO, Circuit Judge.

In Johnson v. United States, 135 S. Ct. 2551 (2015),
the Supreme Court held that the residual clause of the Armed
Career Criminal Act (ACCA) is unconstitutionally vague. An
identical residual clause existed until recently in the Federal
Sentencing Guidelines’ career offender guideline, U.S.S.G.
§ 4B1.2(a)(2). Petitioner Thomas Hoffner was sentenced as a
career offender based on this residual clause in 2002. He
seeks our authorization to challenge his sentence via a
successive habeas corpus petition, 28 U.S.C. § 2255(h)(2).

The ultimate question is whether Hoffner has a
meritorious vagueness claim under Johnson. But that is not
the question before us now. The only issue we must decide is
whether Hoffner has made a “prima facie showing,”

2
28 U.S.C. § 2244(b)(3)(C), of the pre-filing requirements for
a successive habeas corpus petition. To answer this
seemingly simple question, we must cover some rocky
terrain. We consider Johnson and its progeny, as well as the
pre-filing requirements for a second or successive habeas
petition. We conclude that Hoffner has made a prima facie
showing, and so we will authorize his successive habeas
petition. 1

I. Factual and Procedural Background

In 2002, Hoffner was convicted of conspiracy to
distribute methamphetamine, 21 U.S.C. § 846, distribution of
methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use
of a communication facility, 21 U.S.C. § 843(b). At
sentencing, the District Court applied the career offender
guideline, U.S.S.G. § 4B1.1, based upon two prior
convictions Hoffner incurred in Pennsylvania state court in
the 1980s. The first was for simple assault and the second
was for burglary, robbery and conspiracy. He was sentenced
to twenty years’ imprisonment and five years’ supervised
release. 2

1
For ease of reference, we use “habeas corpus
petition” or “habeas petition” to refer to a petition filed under
28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375,
377 (2003) (referring interchangeably to “habeas motion” and
“§ 2255 motion”).
2
Hoffner was sentenced on May 29, 2002 under the
2001 edition of the Sentencing Guidelines. See 18 U.S.C.
§ 3553(a)(4)(A); U.S.S.G. § 1B1.11. Without the career
offender guideline, Hoffner’s offense level would have been

3
 Hoffner filed a direct appeal and a habeas corpus
petition, which we rejected. United States v. Hoffner, 96 F.
App’x 85 (3d Cir. 2004); United States v. Hoffner, No. 00-cr-
00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005), appeal
denied No. 05-5478 (3d Cir. July 18, 2006). In 2012, he filed
an unauthorized second habeas corpus petition. In 2015, he
filed the pro se motion before us seeking to file a successive
habeas corpus petition under Johnson. We appointed
counsel, requested briefing, and held oral argument.

II. Johnson and Its Progeny

A. Johnson

In Johnson, the Supreme Court considered a due
process challenge to the residual clause of the ACCA,
18 U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a
defendant convicted of being a felon in possession of a
firearm under 18 U.S.C. § 922(g). Ordinarily, “the law
punishes violation of this ban by up to 10 years’
imprisonment.” Johnson, 135 S. Ct. at 2555 (citing 18 U.S.C.
§ 924(a)(2)). However, if a defendant is an “armed career
criminal,” the ACCA imposes a mandatory minimum

34 and his criminal history category IV, for a Guideline range
of 210 to 262 months. Applying the career offender guideline
increased his Guideline range to 360 months to life.
Continuing the Guideline calculations, the District Court
found that Hoffner’s criminal history category substantially
overstated the seriousness of his criminal history. U.S.S.G.
§ 4A1.3. The District Court departed downward, producing a
final, mandatory Guideline range of 210 to 262 months.

4
sentence of fifteen years and a statutory maximum sentence
of life. Id. (citing 18 U.S.C. § 924(e)(1)). 3

A defendant is an “armed career criminal” if, in
relevant part, he “has three or more earlier convictions for a
‘serious drug offense’ or a ‘violent felony.’” Id. (citing
18 U.S.C. § 924(e)(1)). Pre-Johnson, the definition of
“violent felony” had three clauses—one enumerating
offenses, one enumerating elements, and the residual clause.
18 U.S.C. § 924(e)(2)(B). The residual clause defined a
crime as a “violent felony” if it “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B)(ii); see also Johnson, 135
S. Ct. at 2557.

In Johnson, the Supreme Court struck the ACCA
residual clause as unconstitutionally vague. Johnson, 135
S. Ct. at 2563. The Court explained that the Fifth
Amendment’s vagueness doctrine bars the Government from
“taking away someone’s life, liberty, or property under a
criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Id. at 2556. These principles
apply to laws “defining elements of crimes” or “fixing
sentences.” Id. at 2557. The ACCA was a law “fixing
sentences.” Beckles, 137 S. Ct. at 892. Its residual clause
denied defendants “fair notice” and “invite[d] arbitrary
enforcement by judges.” Johnson, 135 S. Ct. at 2557. Thus,
Johnson held that “[i]ncreasing a defendant’s sentence under

3
A sentencing court can depart from the mandatory
minimum sentence only in limited circumstances.
Cf. 18 U.S.C. § 3553(e).

5
the clause denies due process of law.” Id.

B. Welch

The Supreme Court quickly resolved the issue of
Johnson’s retroactivity in Welch v. United States, 136 S. Ct.
1257 (2016). Welch held that Johnson is retroactive to cases
on collateral review. Id. at 1264.

In Welch, the Supreme Court applied the retroactivity
test set forth in Teague v. Lane, 489 U.S. 288 (1989). Teague
provides that “new constitutional rules of criminal procedure”
are generally not retroactive to cases on collateral review.
Welch, 136 S. Ct. at 1264 (quoting Teague, 489 U.S. at 310).
However, “two categories of decisions . . . fall outside this
general” retroactivity bar: “new substantive rules” and
“watershed rules of criminal procedure.” Id. (emphasis and
citations omitted). A procedural rule “regulate[s] only the
manner of determining the defendant’s culpability.” Id. at
1265 (emphasis and citation omitted). A substantive rule
“alters the range of conduct or the class of persons that the
law punishes.” Id. at 1264-65 (citation omitted). 4

Welch held that Johnson is a new “substantive” rule
because it alters “the substantive reach of the [ACCA]” such
that a defendant can no longer be sentenced as an armed
career criminal “based on” the residual clause. Id. at 1265;
see also Montgomery v. Louisiana, 136 S. Ct. 718, 734
(2016). Conversely, Johnson is not “procedural” because it
“had nothing to do with the range of permissible methods a

4
We need not address the category “watershed rules
of criminal procedure.”

6
court might use to determine whether a defendant should be
sentenced under the [ACCA].” Welch, 136 S. Ct. at 1265.

C. Johnson Challenges to the Career Offender
Guideline

From Johnson grew challenges to another residual
clause, the one contained in the career offender guideline.
The career offender guideline is a severe sentencing
enhancement for certain recidivist offenders. It “specif[ies] a
sentence to a term of imprisonment at or near the maximum
term.” 28 U.S.C. § 994(h).

The career offender guideline applies to a defendant
where, inter alia, “the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense” and “the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Until recently, the
career offender guideline defined a “crime of violence” as

any offense under federal or state
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

7
 of explosives, or otherwise
involves conduct that presents a
serious potential risk of physical
injury to another.

Beckles v. United States, 137 S. Ct. 886, 890-91 (2017)
(emphasis in original) (quoting U.S.S.G. § 4B1.2(a)). 5

In this definition, the final clause is the residual clause.
It is identical to the ACCA residual clause struck in Johnson.
Compare 18 U.S.C. § 924(e)(2)(B)(ii) (“or otherwise involves
conduct that presents a serious potential risk of physical
injury to another”), with U.S.S.G. § 4B1.2(a)(2) (“or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”). For this reason, the
residual clause was struck from the career offender guideline
prospectively, effective August 1, 2016. U.S.S.G. Supp. App.
C, Amend. 798.

1. Booker

Before its elimination, the residual clause of the career
offender guideline had been effective since November 1,

5
Beckles quoted the 2006 edition of the Sentencing
Guidelines. Beckles, 137 S. Ct. at 890. This definition is the
same as the 2001 edition, under which Hoffner was
sentenced. See id. at 890 n.1 (citing 18 U.S.C.
§ 3553(a)(4)(A)). It is also the same as the 2000 edition,
which was used to create Hoffner’s Presentence Investigation
Report.

8
1989. U.S.S.G. Supp. App. C, Amend. 268. 6 Significantly,
its use spanned two eras in sentencing under the Federal
Sentencing Guidelines—the pre- and post-United States v.
Booker, 543 U.S. 220 (2005), eras. We pause briefly to
review this distinction, as it is necessary to our analysis.

In the earlier, pre-Booker era, the Sentencing
Guidelines had “the force and effect of laws” and were
“mandatory and binding on all judges.” Id. at 233-34. A
sentencing court was required to “impose a sentence of the
kind, and within the range,” set by the Guidelines. Id. at 234
(quoting 18 U.S.C. § 3553(b)). Although the sentencing court
could depart from the range, departures were based on “only
the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission.” 18 U.S.C.
§ 3553(b). “In most cases, as a matter of law, the
Commission . . . adequately t[ook] all relevant factors into
account, and no departure [was] legally permissible.”
Booker, 543 U.S. at 234.

In Booker, the Supreme Court held that the Sentencing
Guidelines violated the Sixth Amendment. Id. at 226-27. In
a separate, remedial opinion, the Court rendered the
Guidelines “advisory.” Id. at 245. In the current, post-
Booker era, a sentencing court must “consider Guidelines
ranges” but may “tailor the sentence in light of other statutory
concerns as well.” Id. at 245 (citing 18 U.S.C. § 3553(a)). In
addition to the Guidelines, a sentencing court considers the
parties’ arguments and the Section 3553(a) factors; the

6
Previously, the career offender guideline defined a
“crime of violence” under 18 U.S.C. § 16. See U.S.S.G.
§ 4B1.2(1) (U.S. Sentencing Comm’n 1988).

9
appropriate sentence may vary from the range. United States
v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

2. Beckles

In Beckles, the Supreme Court rejected a Johnson
challenge to the career offender guideline’s residual clause, as
applied under the advisory, post-Booker Guidelines. Beckles,
137 S. Ct. at 890. Beckles held that that “the advisory
Guidelines are not subject to vagueness challenges.” Id.

The issue in Beckles was whether the advisory
Guidelines “fix the permissible sentences for criminal
offenses” such that they can be challenged as vague. Id. at
892 (emphasis in original). Beckles held that they do not.
Rather, the advisory Guidelines “merely guide the exercise of
a court’s discretion.” Id. The Court further explained that the
two principles governing the vagueness doctrine—notice and
arbitrary enforcement—do not apply to the advisory
Guidelines. Id. at 894. As to notice, the “‘due process
concerns that . . . require notice in a world of mandatory
Guidelines no longer’ apply” when the Guidelines are
advisory. Id. (ellipses in original) (quoting Irizarry v. United
States, 553 U.S. 708, 714 (2008)). As to arbitrary
enforcement, the advisory Guidelines are not “enforced” at
all, and so cannot be enforced arbitrarily. Id. at 895.

Beckles limited its holding to the advisory Guidelines.
Id. at 890. It did not address the pre-Booker era, when the
Sentencing Guidelines were “mandatory and binding on all
judges,” who were required to sentence within the range.
Booker, 543 U.S. at 233. In a concurring opinion in Beckles,
Justice Sotomayor noted that the majority left “open the

10
question whether defendants sentenced to terms of
imprisonment before [the Supreme Court’s] decision in
United States v. Booker—that is, during the period in which
the Guidelines did ‘fix the permissible range of sentences,’—
may mount vagueness attacks on their sentences.” Id. at 903
n.4 (Sotomayor, J., concurring) (citations omitted). 7

III. Second or Successive Habeas Corpus Petitions

Hoffner was sentenced based upon the career offender
guideline’s residual clause during the pre-Booker, mandatory
Guidelines era. He seeks our authorization to file a
successive habeas corpus petition challenging his sentence in
light of Johnson. We turn then to the requirements for a
second or successive habeas petition, set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).

AEDPA created a statutory “gatekeeping mechanism”
for second or successive habeas petitions. Felker v. Turpin,
518 U.S. 651, 657 (1996) (quotation marks omitted). For a
federal prisoner, like Hoffner, a “second or successive motion
must be certified as provided in section 2244 by a panel of the
appropriate court of appeals.” 28 U.S.C. § 2255(h); see also
In re Turner, 267 F.3d 225, 227 (3d Cir. 2001). Section

7
Beckles abrogated in part United States v.
Calabretta, 831 F.3d 128 (3d Cir. 2016), a direct appeal in
which we held that the career offender guideline’s residual
clause is unconstitutionally vague. Id. at 137 & n.10. In this
opinion, we need not parse what portions of Calabretta
survive Beckles because, as explained below, we are not
evaluating Hoffner’s claim on the merits.

11
2244(b)(3) is the gatekeeping provision. Felker, 518 U.S. at
657. 8 It requires a petitioner to “move in the appropriate
court of appeals for an order authorizing the district court to
consider” a second or successive habeas petition. 28 U.S.C.
§ 2244(b)(3)(A). The appellate court “may authorize the
filing of a second or successive application only if it
determines that the application makes a prima facie showing”
of the pre-filing requirements. 28 U.S.C. § 2244(b)(3)(C).

A. Pre-Filing Requirements

The pre-filing requirements for a second or successive
habeas petition for a federal prisoner are set forth at 28 U.S.C.
§ 2255(h). A Section 2255(h) motion may be based upon
“newly discovered evidence” or a qualifying “new rule of
constitutional law.” 28 U.S.C. § 2255(h). For the latter, the
pre-filing requirements consist of “three prerequisites.” Tyler
v. Cain, 533 U.S. 656, 662 (2001). “First, the rule on which
the claim relies must be a ‘new rule’ of constitutional law;
second, the rule must have been ‘made retroactive to cases on
collateral review by the Supreme Court’; and third, the claim
must have been ‘previously unavailable.’” Id. 9

8
Section 2244(b)(3) applies directly to a state
prisoner, without the cross-reference from Section 2255(h).
Felker, 518 U.S. at 657.
9
Tyler quoted 28 U.S.C. § 2254(b)(2)(A) because it
involved a state prisoner. These requirements are “identical”
to the parallel requirements of 28 U.S.C. § 2255(h)(2). In re
Olopade, 403 F.3d 159, 162 n.3 (3d Cir. 2005). “Due to this
identity of language, we have applied the Tyler holding to
federal prisoners seeking to file second or successive habeas

12
 Although few in number, the pre-filing requirements
of Section 2255(h)(2) are difficult to satisfy. The Supreme
Court itself must issue the retroactivity decision, either
expressly or through a series of decisions. Tyler, 533 U.S. at
663; see also In re Olopade, 403 F.3d at 162; In re Turner,
267 F.3d at 229. Moreover, “because of the interplay
between” the pre-filing requirements and the statute of
limitations, 28 U.S.C. § 2255(f)(3), “an applicant who files a
second or successive motion seeking to take advantage of a
new rule of constitutional law will be time barred except in
the rare case in which this Court announces a new rule of
constitutional law and makes it retroactive within one year.”
Dodd v. United States, 545 U.S. 353, 359 (2005). 10

B. Prima Facie Showing

In our gatekeeping role, we assess whether the

applications.” Id. This is so although there is a slight
difference between the two sections. Section 2244(b)(2)(A)
asks whether a claim “relies on” a qualifying new rule.
28 U.S.C. § 2244(b)(2)(A). Section 2255(h) asks whether the
motion “contain[s]” a qualifying new rule. 28 U.S.C.
§ 2255(h). In Olopade, we did not deem this to be a “relevant
portion” of the text. Olopade, 403 F.3d at 162 n.3; see also
In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per
curiam) (equating “contain” with “rel[y] on”).
10
Johnson is such a “rare case.” Dodd, 545 U.S. at
359. The Supreme Court decided Johnson on June 26, 2015.
On April 18, 2016, the Court held in Welch that Johnson is
retroactive.

13
petitioner has satisfied the pre-filing requirements of Section
2255(h) at only a “prima facie” level. 28 U.S.C.
§ 2244(b)(3)(C). Although AEDPA does not define “prima
facie,” the context of Section 2244(b) confirms that we hold
the petitioner to a light burden. The same subsection directs
us to make our prima facie determination “not later than 30
days after the filing of the motion.” 28 U.S.C.
11
§ 2244(b)(3)(D). It provides that the “grant or denial of an
authorization . . . 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.” 28 U.S.C.
§ 2244(b)(3)(E). It also provides that after our authorization,
a district court shall consider anew whether the petitioner has
“show[n] that the claim satisfies the requirements of this
section.” 28 U.S.C. § 2244(b)(4). This context demonstrates
that we “do not have to engage in . . . difficult legal analysis”
in our gatekeeping role. Tyler, 533 U.S. at 664.

Consistent with the text and context, we have defined a
“prima facie showing” as a “sufficient showing” that the
petitioner has satisfied the pre-filing requirements “to warrant
a fuller exploration by the district court.” Goldblum v. Klem,
510 F.3d 204, 219 & n.9 (3d Cir. 2007) (quoting Bennett v.
United States, 119 F.3d 468, 469 (7th Cir. 1997)). Put
differently, we authorize a second or successive habeas
petition where there is some “reasonabl[e] likel[ihood]” that
the motion satisfies the pre-filing requirements of Section
2255(h)(2). Id. at 219 (quoting Bennett, 119 F.3d at 469); see
also 2-28 Hertz & James S. Liebman, Federal Habeas

11
The thirty day time limit is “advisory or hortatory
rather than mandatory.” In re Siggers, 132 F.3d 333, 335 (6th
Cir. 1997).

14
Corpus Practice and Procedure § 28.3(d) & n.122 (2015).
We do not consider the merits of the claim. In re Pendleton,
732 F.3d 280, 282 n.1 (3d Cir. 2013) (per curiam); Goldblum,
510 F.3d at 219 n.9.

IV. Analysis

The parties agree, as they must under Welch, that
Johnson is “[1] a new rule of constitutional law, [2] made
retroactive to cases on collateral review by the Supreme
Court, [3] that was previously unavailable.” 28 U.S.C.
§ 2255(h)(2). These are generally the “three prerequisites”
for a motion under Section 2255(h). Tyler, 533 U.S. at 662.
The Government nevertheless opposes Hoffner’s motion for
authorization to file a successive habeas petition. It argues
that Hoffner has not made a prima facie showing of one
portion of the first prerequisite, that Johnson is “the rule on
which the claim relies.” Id. (emphasis added).

A. Relies

This Court has not previously focused on what is
required for a claim to “rel[y]” on a qualifying new rule for
the purposes of Section 2255(h)(2). Id. Our precedent
dictates that the answer cannot be whether the claim has
merit, because we do not address the merits at all in our
gatekeeping function. In re Pendleton, 732 F.3d at 282 n.1;
Goldblum, 510 F.3d at 219 n.9. We now hold that whether a
claim “relies” on a qualifying new rule must be construed
permissively and flexibly on a case-by-case basis.

Our interpretation is based first on the text of Section
2255(h)(2), which supports a permissive and flexible

15
approach to whether a petitioner “relies” on a qualifying new
rule. See Maslenjak v. United States, 137 S. Ct. 1918, 1924
(2017) (“We begin, as usual, with the statutory text.”). The
Supreme Court has enumerated the pre-filing requirements as
“three prerequisites.” Tyler, 533 U.S. at 662. Of these, the
first is that “the rule on which the claim relies must be a ‘new
rule’ of constitutional law.” Id. While this prerequisite does
refer to a rule on which the claim “relies,” Tyler does not give
any freestanding weight to this term. Id. Similarly, when we
described the “relevant portion” of the text, we did not
include reliance. Olopade, 403 F.3d at 162 n.3. Even the
Government concedes that Section 2255(h)(2) has “no
express requirement that the ‘new rule’ must actually pertain
to the petitioner’s claim.” Br. for Respondent 22 n.6.

The context of Section 2244(b) also supports
interpreting “relies” permissibly and flexibly. See King v.
Burwell, 135 S. Ct. 2480, 2489 (2015) (emphasizing that we
read statutory text in context). As explained above, Congress
has mandated that the “grant or denial of an authorization . . .
shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.” 28 U.S.C.
§ 2244(b)(3)(E); see also Felker, 518 U.S. at 654 (upholding
this subsection). This creates an asymmetry in the impact of
our gatekeeping decision on a particular case. See Evans-
Garcia v. United States, 744 F.3d 235, 239 (1st Cir. 2014);
Ochoa v. Sirmons, 485 F.3d 538, 542 n.5 (10th Cir. 2007)
(per curiam). On one hand, if we erroneously deny
authorization, the petitioner “will have no opportunity to
appeal or seek rehearing.” Evans-Garcia, 744 F.3d at 239.
On the other hand, “if we err in granting certification, ample
opportunity for correcting that error will remain.” Id. The
district court will have the opportunity to determine anew

16
whether the petitioner has “show[n] that the claim satisfies
the requirements of this section,” 28 U.S.C. § 2244(b)(4), and
whether the habeas petition has merit, In re Pendleton, 732
F.3d at 282 n.1; Goldblum, 510 F.3d at 219 n.9. In turn, we
may review the district court’s decision. See 28 U.S.C.
§ 2253.

At a policy level, a flexible, case-by-case approach
advances two ends—the need to meet new circumstances as
they arise, and the need to prevent injustice. Cf. Holland v.
Florida, 560 U.S. 631, 650 (2010) (describing these ends in a
different context). Both concerns are at the fore in Section
2255(h)(2) motions. Such motions may involve rules that are
“new” (therefore difficult to foresee) and “substantive,”
thereby involving a particular type of injustice—a “conviction
or sentence that the Constitution deprives the [Government]
of power to impose,” Montgomery, 136 S. Ct. at 732; cf. id.
(noting that “the retroactive application of substantive rules
does not implicate a State’s weighty interests in . . . finality”).

The above considerations of text, context and equity
are encapsulated by the scholarly dissenting opinion of Judge
Elrod in In re Arnick, 826 F.3d 787, 789 (5th Cir. 2016)
(Elrod, J., dissenting). As Judge Elrod observes, a motion
“relies” on a qualifying new rule where the rule “substantiates
the movant’s claim.” Id. This is so even if the rule does not
“conclusively decide[]” the claim or if the petitioner needs a
“non-frivolous extension of a qualifying rule.” Id. at 789-90.
Section 2255(h)(2) does not require that qualifying new rule
be “the movant’s winning rule,” but “only that the movant
rely on such a rule.” Id. at 790 (emphasis in original).

It is for the district court to evaluate the merits of the

17
second or successive habeas petition in the first instance.
This includes “whether the invoked new rule should
ultimately be extended in the way that the movant proposes”
or whether his “reliance is misplaced.” Id. at 791. Other
Circuits agree. See, e.g., In re Hubbard, 825 F.3d 225, 231
(4th Cir. 2016) (holding that “it is for the district court to
determine whether the new rule extends to the movant’s case,
not for this court in this proceeding”); In re Williams, 759
F.3d 66, 72 (D.C. Cir. 2014) (holding that whether the
qualifying new rule “extends” to the petitioner “goes to the
merits of the motion and is for the district court, not the court
of appeals”).

B. Precedent

The above considerations dictate that we should apply
a permissive and flexible, case-by-case approach to deciding
whether a petitioner “relies” on a qualifying new rule (again,
at a prima facie level). Implementing such an approach, we
look to precedent as a guide while recognizing that future
“new” rules may be difficult to foresee.

First, we turn to identical Johnson challenges to the
career offender guideline’s residual clause in pre-Booker,
mandatory Guideline cases. The Second, Sixth, Fourth and
Tenth Circuits have all authorized second or successive
habeas petitions challenging this residual clause in light of
Johnson. See Vargas, No. 16-2112 (2d Cir. May 8, 2017)
(authorizing successive habeas petition, as “Beckles did not
clearly foreclose” petitioner’s Johnson claim under the
mandatory Guidelines); In re Patrick, 833 F.3d 584, 589 (6th
Cir. 2016) (holding that petitioner “easily satisf[ied]” the
prima facie standard); In re Hubbard, 825 F.3d at 231

18
(holding that petitioner made a prima facie showing based
upon Johnson); In re Encinias, 821 F.3d at 1226 (holding that
petitioner sufficiently “rel[ied] on” Johnson to permit
authorization). 12 We find these decisions persuasive. 13

We also draw upon decisions authorizing second or
successive habeas petitions for juveniles sentenced to
mandatory life without parole under Graham v. Florida, 560
U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460
(2012). 14 Most important of these is our own decision
authorizing second or successive habeas petitions for three
juvenile offenders in In re Pendelton, 732 F.3d at 283.

In Pendleton, our Court authorized a successive habeas

12
We acknowledge that only Vargas post-dates
Beckles, which was decided on March 6, 2017. However,
Beckles does not abrogate the other Circuit decisions because,
inter alia, they involve the pre-Booker, mandatory
Guidelines.
13
In contrast, we do not follow the Eleventh Circuit,
which—contrary to our precedent—resolved a merits
question in the context of a motion to authorize a second or
successive habeas petition. In re Griffin, 823 F.3d 1350,
1354 (11th Cir. 2016) (holding that the mandatory career
offender guideline cannot be challenged as vague).
14
Graham held that juvenile life-without-parole
sentences for non-homicide offenses violate the Eighth
Amendment. 560 U.S. at 82. Miller held unconstitutional a
mandatory juvenile life-without-parole sentence for homicide.
567 U.S. at 465.

19
petition for petitioner Corey Grant, who was sentenced to life
imprisonment under the mandatory Guidelines after his
downward departure request was denied. See Br. for
Respondent, In re Grant, 732 F.3d 280 (3d Cir. 2013) (No.
13-1455), 2013 WL 4505735, *29-31. The Government
agreed that Miller was a qualifying new rule. However, it
opposed Grant’s motion because his life sentence was
arguably discretionary, and Miller did not invalidate “a
discretionary life-without-parole sentence.” Id. at *36. The
Government asserted that Grant could refile “[s]hould the
Supreme Court someday foreclose such sentences.” Id. We
rejected this argument and authorized the petition based on
Miller. In re Pendleton, 732 F.3d at 282 n.1. We explained
that “whether Grant actually qualifie[d] for relief under
Miller” was a merits question for the district court to answer
in the first instance. Id.

Similarly, the Fifth Circuit authorized a successive
habeas petition for a juvenile sentenced to life without parole
in In re Sparks, 657 F.3d 258 (5th Cir. 2010). The Sparks
petitioner was convicted of aiding and abetting a carjacking
resulting in death. Id. at 260. Notably, he filed his Section
2255(h) motion based upon Graham and prior to Miller.
Because his crime resulted in death, the petitioner was
arguably seeking to extend Graham to homicide (as the
Supreme Court would later do in Miller). Id. at 260 n.1. The
Fifth Circuit authorized the petition based upon Graham. Id.

The District of Columbia Circuit also authorized a
successive habeas petition in the case of a petitioner serving
life without parole in In re Williams, 759 F.3d at 72. In
Williams, it was unclear whether the petitioner committed his
crimes as a juvenile because he had participated in a

20
conspiracy spanning both his juvenile and adult years. As
such, the Government argued that the petitioner was not
relying on Graham and Miller but rather an “extension” of
those cases. Id. at 70-71. Again, the Court rejected this
argument and held that the petitioner “made a prima facie
showing that he relie[d] on” Graham and Miller. Id. at 71.
Whether those cases “extend[ed]” to the petitioner was a
merits question for the district court. Id. at 72; see also id. at
70-71.

At the other end of the spectrum, this Court regularly
declines to authorize second or successive habeas petitions
that are “foreclosed by our precedent or otherwise frivolous.”
In re Arnick, 826 F.3d at 790 (Elrod, J., dissenting). To take
the obvious example, we have denied Johnson challenges to
the career offender guideline’s residual clause in advisory
Guidelines cases as foreclosed by Beckles. “Certainly a
movant cannot invoke a new rule by reading it so expansively
as to contradict binding precedents. The movant’s requested
extension also cannot be so facially implausible that he is not
really ‘relying’ on the new rule at all.” Id. at 791 (citations
omitted).

C. The Eighth Circuit’s Approach

In contrast to the permissive and flexible, case-by-case
approach described and illustrated above, the Government
proposes a different test that would strictly define when a
petitioner may rely on a qualifying new rule. Specifically, the
Government suggests that we take the approach of the Eighth
Circuit in Donnell v. United States, 826 F.3d 1014 (8th Cir.
2016). We decline to do so.

21
 In Donnell, the petitioner raised a pre-Beckles
challenge to the career offender guideline’s residual clause
under the advisory Guidelines. Id. at 1015. The Eighth
Circuit refused to authorize a second or successive habeas
petition on the ground that the petitioner sought to “extend”
Johnson. Id. at 1015. More specifically, the Court held that
the petitioner impermissibly “urge[d] the creation of a second
new rule.” Id. at 1017.

The Eighth Circuit’s approach is inconsistent with the
text of Section 2255(h)(2), which contains only “three
prerequisites,” Tyler, 533 U.S. at 662, and no requirement
that we scrutinize a motion to see if it would produce a
“second new rule.” Nor does the context of Section 2244(b)
support such a position. As stated above, we ordinarily rule
on a Section 2255(h)(2) motion within thirty days, 28 U.S.C.
§ 2244(b)(3)(D), and without the possibility of a “petition for
rehearing or for a writ of certiorari,” 28 U.S.C.
§ 2244(b)(3)(E). As the Supreme Court has observed, we do
not “have to engage in . . . difficult legal analysis” under such
cramped conditions. Tyler, 533 U.S. at 664.

The Eighth Circuit’s approach may be simple to state,
but it epitomizes a “difficult” analysis in practice. Although
Donnell does not cite Teague, the way to determine whether a
Section 2255(h) motion “urges the creation of a second new
rule,” Donnell, 826 F.3d at 1017, is to undertake a Teague
analysis. The Government agrees. See Br. for Respondent 35
(“The rule that Hoffner seeks to establish . . . is a ‘new’
constitutional rule, because the invalidity of the guideline’s
residual clause . . . was not ‘dictated by precedent existing at

22
the time [his] conviction became final.’”). 15 Whether a rule is

15
The Government quotes Chaidez v. United States,
568 U.S. 342, 347-48 (2013), which more completely
explains that a “new” rule under Teague is one that

“breaks new ground or imposes a
new obligation” on the
government. “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.” And a holding is not so
dictated . . . unless it would have
been “apparent to all reasonable
jurists.”

But that account has a flipside.
Teague also made clear that 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. As Justice
Kennedy has explained, “[w]here
the beginning point” of our
analysis is a rule of “general
application, a rule designed for
the specific purpose of evaluating
a myriad of factual contexts, it
will be the infrequent case that

23
“new” under Teague is often uncertain. As a leading treatise
puts it, a “review of circuit court decisions applying Teague
reveals little to distinguish the rules that have been
denominated ‘new’ from those deemed not to be ‘new.’
Indeed, it has become increasingly commonplace to find
inter- or intra-circuit conflicts as to whether a particular rule
is or is not ‘new.’ Such conflicts may linger for years before
the Supreme Court eventually steps in to resolve the matter.”
2-25 Hertz & Liebman, supra, § 25.5 (citations omitted). The
search for a “second new rule” is thus ill-suited to the context
of Section 2244(b). We decline to adopt the Donnell
approach and need not determine whether applying Johnson
to Hoffner would create a “second new rule.”

Instead, we consider Hoffner’s motion permissively
and flexibly, with precedent as a guide. Like the Second,
Sixth, Fourth and Tenth Circuits, we conclude that Hoffner
has made a “prima facie showing,” 28 U.S.C.
§ 2244(b)(3)(C), that he relies on Johnson. See Vargas, No.
16-2112 (2d Cir. May 8, 2017); In re Patrick, 833 F.3d at
589; In re Hubbard, 825 F.3d at 231; In re Encinias, 821 F.3d
at 1226. We will therefore authorize Hoffner to file a
successive habeas corpus petition. It will be for the District
Court to determine in the first instance whether his petition
has merit.

yields a result so novel that it
forges a new rule, one not dictated
by precedent.”

Id. at 347-48 (citations omitted).

24
V. Conclusion

For the foregoing reasons, we will grant Hoffner’s
Section 2255(h) motion and authorize him to file a successive
habeas corpus petition in the District Court.

25