FILED
NOT FOR PUBLICATION
JUN 27 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS GARCIA-MESA, No. 21-71147
Applicant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Argued and Submitted June 16, 2022
San Francisco, California
Before: S.R. THOMAS, GOULD, and BEA, Circuit Judges.
Carlos Garcia-Mesa moves the Court for authorization to file a second or
successive habeas petition under 28 U.S.C. § 2255(h) or, alternatively, for remand
to the district court with instructions to treat his current petition as a first 28 U.S.C.
§ 2255 petition. We have jurisdiction under 28 U.S.C. § 2244. As the facts are
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
familiar to the parties, we need not recount them. As explained below, we grant
Garcia-Mesa’s motion and authorize a petition.
I
Garcia-Mesa’s first habeas petition, which he filed in 2005, was denied as
untimely, which is a merits determination. McNabb v. Yates, 576 F.3d 1028,
1029–30 (9th Cir. 2009). Therefore his current petition challenging the same
conviction is either second or successive for purposes of 28 U.S.C. § 2255(h).
II
Given our determination that Garcia-Mesa’s habeas petition is successive,
we must decide whether to authorize the filing of the successive habeas petition
under 28 U.S.C. § 2255(h). Pursuant to 28 U.S.C. § 2255(h), we must deny an
application to file a second or successive petition unless, as pertinent here, the
applicant has made a prima facie showing that the petition “[1] relies on [2] a new
rule of constitutional law, [3] made retroactive to cases on collateral review by the
Supreme Court, [4] that was previously unavailable.” Henry v. Spearman, 899
F.3d 703, 705 (9th Cir. 2018) (quoting 28 U.S.C. § 2244(b)(2)(A)).
Garcia-Mesa’s present petition challenges his firearm sentences under 18
U.S.C. § 924(c)(1)(A)(ii) and (iii) as unconstitutional under United States v. Davis,
139 S. Ct. 2319 (2019). As the government rightly concedes, Davis did announce
2
a new rule of constitutional law made retroactive to cases on collateral review.
However, the government contends that Garcia-Mesa’s present petition fails
28 U.S.C. § 2255(h)(2)’s requirement that the new constitutional right he asserts
was “previously unavailable” to him. This is because, the government argues, the
right announced in Davis was previously available to Garcia-Mesa under Johnson
v. United States, 576 U.S. 591 (2015). In Johnson, the Supreme Court held that the
residual clause’s definition of “violent felony” at 18 U.S.C. § 924(e)(2)(B)(ii) was
void for vagueness. Id. at 602. And indeed, the government would prevail if
Davis was not a “new rule of constitutional law” and was instead a subsequent
application of Johnson’s rule. But it was not. This conclusion is required by
United States v. Blackstone, which explicitly held that the Supreme Court in
Johnson did not announce the rule “that [18 U.S.C.] § 924(c)’s residual clause is
void for vagueness in violation of the Fifth Amendment.” 903 F.3d 1020, 1028
(9th Cir. 2018).
The government next contends that Garcia-Mesa’s habeas claim fails
because his actual crime of conviction, hostage taking resulting in death, is not
affected by Davis. That may well be a valid defense on the merits. However, our
task is only to decide whether the applicant has made a prima facie showing.
Merits issues are best considered in the first instance by the district court.
3
Altogether, Garcia-Mesa has established a prima facie showing that his
petition 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). Accordingly, we grant his motion and authorize the filing of
a second or successive habeas petition. The panel retains jurisdiction over any
subsequent appeal.
GRANTED.
4