Pakala v. United States , 804 F.3d 139 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 15-1799
JOHN PAKALA,
Petitioner,
v.
UNITED STATES,
Respondent.
APPLICATION FOR LEAVE TO FILE A SECOND OR
SUCCESSIVE MOTION PURSUANT TO 28 U.S.C. § 2255Before
Torruella, Lynch and Kayatta,
Circuit Judges.
John Pakala Pro Se.
Sandra S. Bower, Assistant U.S. Attorney, and Carmen M. Ortiz,
U.S. Attorney, for Respondent.
October 20, 2015
Per Curiam. Petitioner John Pakala, who is serving a
235-month sentence as an armed career criminal under the Armed
Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), seeks
certification to file in district court a second or successive 28
U.S.C. § 2255 motion to vacate his sentence. See § 2255(h). He
relies upon the United States Supreme Court's decision in Johnson
v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015), which struck
down the "residual clause" of the ACCA as unconstitutionally
vague. In affirming Pakala's sentence on direct appeal, we relied
upon a determination that his two prior Florida convictions
qualified as violent felonies under the ACCA's residual clause.
See United States v. Pakala, 568 F.3d 47, 55 (1st Cir. 2009).
"In deciding whether to grant certification in the
absence of any newly discovered evidence, we ask whether the
petition 'contain[s] . . . a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court
that was previously unavailable.'" Evans-Garcia v. United States,
744 F.3d 235, 237 (1st Cir. 2014)(quoting § 2255(h)(2)). At this
stage, "the court of appeals should ask whether the 'application
makes a prima facie showing' that it satisfies the applicable
requirements." Id. The question before us here is not whether the
petition has merit, but instead "whether 'it appears reasonably
likely'" that the petition satisfies the gatekeeping requirements
for filing a second or successive petition. Id. (citation omitted).
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Here, the government concedes that Johnson announced a
new rule of constitutional law that was previously
unavailable. And, it further concedes that Pakala has at least
made a prima facie showing that Johnson has been made retroactive
by the Supreme Court.1 In view of the government's concessions,
we certify that Pakala has made the requisite prima facie showing
that the new constitutional rule announced in Johnson "qualifies
as a basis for habeas relief on a second or successive petition,
and so we allow him to file his petition with the district court."
Evans-Garcia, 744 F.3d at 240. The application is
granted. Petitioner's motion for appointment of counsel is denied
as moot.
1The retroactivity question has divided the circuits to have
considered it. Compare Price v. United States, 795 F.3d 731, 734-
35 (7th Cir. 2015) (granting certification under § 2255(h)(2) on
the grounds that Johnson's new rule of constitutional law had
been made categorically retroactive by the Supreme Court to cases
on collateral review, and that Price had made a prima facie showing
that he might be entitled to sentencing relief under Johnson);
with In re: Rivero, ___ F.3d ___, 2015 WL 4747749, *2 (11th Cir.,
Aug. 12, 2015)(denying certification on the ground that -- even
assuming that Johnson applies to invalidate the residual clause of
U.S.S.G. § 4B1.2(a)(2) -- the new substantive rule announced in
Johnson has not been "made retroactive to cases on collateral
review by the Supreme Court." § 2255(h)(2)), and In re Gieswein,
___ F.3d ___, 2015 WL 5534388 (10th Cir., Sept. 21, 2015) (denying
certification and rejecting approach of Seventh and Eleventh
Circuits to the extent that the court of appeals applied "the
Supreme Court's retroactivity principles to determine, for itself
in the first instance, whether the rule in Johnson is of a type
that the Supreme Court has held applies retroactively").
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