In re: Gieswein ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 21, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
In re:
SHAWN J. GIESWEIN, No. 15-6138
(D.C. Nos. 5:11-CV-00021-F &
Movant. 5:07-CR-00120-F-1)
(W.D. Okla.)
ORDER
Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.
PER CURIAM.
Shawn J. Gieswein, a federal prisoner, was convicted of possession of a
firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and witness
tampering. Proceeding pro se, he seeks authorization to file a second or successive
motion under 28 U.S.C. § 2255 challenging his sentence for his firearms conviction.
We deny authorization.
I.
We may authorize Gieswein’s claim only if it relies on (1) “newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense”; or (2) “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); see also id.§ 2244(b)(3)(C). Gieswein must make a prima facie showing that he can satisfy the
gate-keeping requirements of § 2255(h). See In re Shines, 696 F.3d 1330, 1332
(10th Cir. 2012) (per curiam). In this context, a prima facie showing requires
Gieswein to make “a sufficient showing of possible merit to warrant a fuller
exploration by the district court.” Case v. Hatch, 731 F.3d 1015, 1028 (10th Cir.),
cert. denied, 134 S. Ct. 269 (2013) (internal quotation marks omitted). “If in light of
the documents submitted with the application it appears reasonably likely that the
application satisfies the stringent requirements for the filing of a second or successive
[motion], we shall grant the application.” Id. (internal quotation marks omitted).
II.
Gieswein is serving a 240-month sentence on his firearms conviction. He
asserts that sentence was improperly enhanced under the Armed Career Criminal Act,
18 U.S.C. § 924(e) (“ACCA”). The ACCA dictates a minimum fifteen-year sentence
if the offender violates § 922(g) and has “three previous convictions . . . for a violent
felony or a serious drug offense.” Id. Gieswein maintains that, under the Supreme
Court’s recent holding in Johnson v. United States, 135 S. Ct. 2551 (2015), none of
his three prior felony convictions used to enhance his sentence qualifies as a “violent
felony” under the ACCA. He seeks authorization to file a second or successive
§ 2255 motion asserting a claim under Johnson, which he contends announced
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“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).1
Under the ACCA,
the term “violent felony” means any crime punishable by imprisonment
for a term exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such term if committed
by an adult, 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.
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized language is
commonly referred to as the “residual clause.” Johnson, 135 S. Ct. at 2556. In
Johnson, the sentencing court determined that the defendant’s previous conviction for
unlawful possession of a short-barreled shotgun qualified as a violent felony under
the residual clause and enhanced his sentence based, in part, on that conviction.
See id. The Supreme Court ultimately held that enhancing a sentence under the
residual clause violates a defendant’s right to due process because that portion of the
ACCA is unconstitutionally vague. See id. at 2557, 2563. Gieswein asserts that all
1
Gieswein filed his first § 2255 motion in 2011, and the district court denied
relief. This court denied a certificate of appealability (“COA”) on one claim, granted
a COA on two other claims, then affirmed the denial of relief on those claims.
See United States v. Gieswein, 495 F. App’x 944, 945 (10th Cir. 2012).
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of his three prior convictions qualify as violent felonies only under the ACCA
residual clause.2
A.
To obtain our authorization to file a second or successive § 2255 motion,
Gieswein must demonstrate that Johnson announced “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). We first address whether Johnson
announced a new rule of constitutional law, and we conclude that it did.
“A case announces a new rule . . . when it 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.” Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013)
(citation, internal quotation marks, and brackets omitted). Johnson held that a
portion of the ACCA violates defendants’ constitutional right to due process,
overruling two prior Supreme Court cases that had concluded otherwise.
2
The holding in Johnson applies only to the residual-clause definition of
“violent felony,” and “does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”
135 S. Ct. at 2563. Gieswein indicates that his three underlying Oklahoma
convictions were for destruction of property by explosive device, burglary, and lewd
molestation. Although we do not determine the merits of the movant’s claim in
deciding a motion for authorization to file a second or successive § 2255 motion, we
note that the surviving definition of “violent felony” under the ACCA includes a
felony conviction for “burglary” as well as a felony conviction that “involves use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(ii).
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See 135 S. Ct. at 2562-63. The Court thus applied a constitutional principle in a
decision that was contrary to, rather than dictated by, its own precedent. Therefore,
we hold that Johnson announced a new rule of constitutional law. See Price v.
United States, __ F.3d __, 2015 WL 4621024, at *1 (7th Cir. Aug. 4, 2015) (holding
Johnson announced a new rule of constitutional law); In re Rivero, __ F.3d __,
2015 WL 4747749, at *2 (11th Cir. Aug. 12, 2015) (same).
B.
Gieswein contends that we should authorize his second or successive § 2255
motion because the Supreme Court has made the new rule in Johnson retroactive to
cases on collateral review. Under § 2255(h)(2), “‘the Supreme Court is the only
entity that can “make” a new rule retroactive.’” Cannon v. Mullin, 297 F.3d 989, 993
(10th Cir. 2002) (quoting Tyler v. Cain, 533 U.S. 656, 663 (2001)) (brackets
omitted). And the Supreme Court can only “make a rule retroactively applicable . . .
through a ‘holding’ to that effect.” Id. (quoting Tyler, 533 U.S. at 663).
1.
The Supreme Court has not explicitly held that the new rule in Johnson is
retroactively applicable to cases on collateral review. Gieswein argues, however, that
the rule in Johnson qualifies for retroactive application in cases on collateral review
under the reasoning in Teague v. Lane, 489 U.S. 288 (1989), and therefore should be
applied retroactively. But “[i]t is clear that the mere fact a new rule might fall within
the general parameters of overarching retroactivity principles established by the
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Supreme Court (i.e., Teague) is not sufficient.” Cannon, 297 F.3d at 993. This is so
because “[t]he Supreme Court does not make a rule retroactive when it merely
establishes principles of retroactivity and leaves the application of those principles to
lower courts.” Id. (internal quotation marks omitted). Thus, in the context of
deciding a motion for authorization, it is not this court’s task to determine whether
(or not) a new rule fits within one of the categories of rules that the Supreme Court
has held apply retroactively. See id. at 994. Our inquiry is statutorily limited to
whether the Supreme Court has made the new rule retroactive to cases on collateral
review.
2.
Gieswein also contends that the Supreme Court has made the rule in Johnson
retroactive to cases on collateral review in a number of its holdings, read together.
The Court has indeed recognized that “[m]ultiple cases can render a new rule
retroactive”—“with the right combination of holdings”—but “only if the holdings in
those cases necessarily dictate retroactivity of the new rule.” Tyler, 533 U.S. at 666.
Gieswein directs our attention to the Seventh Circuit’s decision in Price, 2015 WL
4621024, at *2-3, which held that a combination of Supreme Court holdings
necessarily dictates the conclusion that the Supreme Court has made the new rule in
Johnson retroactively applicable to cases on collateral review. In so holding, that
court cited Johnson, Teague, Tyler, Schriro v. Summerlin, 542 U.S. 348 (2004), and
several other Supreme Court decisions. See id.-6-
We respectfully disagree that the Supreme Court’s holdings in these cases
necessarily dictate retroactivity of the new rule in Johnson. As Justice O’Connor
posited in her Tyler concurrence,
[I]f [the Supreme Court] hold[s] in Case One that a particular type of
rule applies retroactively to cases on collateral review and hold[s] in
Case Two that a given rule is of that particular type, then it necessarily
follows that the given rule applies retroactively to cases on collateral
review. In such circumstances, [the Court] can be said to have ‘made’
the given rule retroactive to cases on collateral review.
Tyler, 533 U.S. at 668-69 (O’Connor, J., concurring); see also Cannon, 297 F.3d
at 993 n.3 (quoting this portion of Justice O’Connor’s concurrence). Here there is no
“Case Two.” The Supreme Court has not held that the rule announced in Johnson is
of a particular type that the Court previously held applies retroactively. And the
Supreme Court—not this court—must make that determination. See Cannon
297 F.3d at 993-94.
As we stated in Cannon, “The Court’s recognition in Tyler of the possibility
that multiple cases can render a new rule retroactive does not . . . give this court
license to grant permission to file a second [§ 2255 motion] premised on our own
determination that a new rule fits within [a] Teague exception.” Id. at 994. In the
limited time we are statutorily permitted to consider and decide motions for
authorization, we do not “engage in the difficult legal analysis that can be required to
determine questions of retroactivity in the first instance.” Id. (internal quotation
marks omitted). Rather, we look for Supreme Court holdings that, “by strict logical
necessity,” dictate that the Supreme Court, itself, has made a new rule retroactive on
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collateral review. Id. (internal quotation marks omitted). There is no such
combination of Supreme Court holdings necessarily dictating retroactive application
of the new rule announced in Johnson.
C.
We acknowledge that the Seventh Circuit reached a different conclusion in
Price. It pointed to the Supreme Court’s statement in Summerlin that “‘[n]ew
substantive rules generally apply retroactively . . . because they necessarily carry a
significant risk that a defendant stands convicted of an act that the law does not make
criminal or faces a punishment that the law cannot impose upon him.’” 2015 WL
4621024, at *2 (quoting Summerlin, 542 U.S. at 351-52) (internal quotation marks
omitted). Price also noted Summerlin’s holding that new substantive rules include
“‘constitutional determinations that place particular conduct or persons covered by
the statute beyond the State’s power to punish.’” Id. (quoting Summerlin, 542 U.S. at
352). And Price pointed to Justice O’Connor’s concurrence in Tyler, in which she
stated:
It is relatively easy to demonstrate the required logical
relationship with respect to the first exception articulated in Teague.
Under this exception, a new rule should be applied retroactively if it
places certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe. When the
Court holds as a new rule in a subsequent case that a particular species
of primary, private individual conduct is beyond the power of the
criminal lawmaking authority to proscribe, it necessarily follows that
this Court has “made” that new rule retroactive to cases on collateral
review.
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Tyler, 533 U.S. at 669 (O’Connor, J., concurring) (citations and internal quotation
marks omitted); see Price, 2015 WL 4621024, at *2.
Applying these retroactivity principles to the new rule in Johnson, Price first
held that Johnson announced a new substantive rule of constitutional law.
See 2015 WL 4621024, at *3. It further held that pursuant to this new rule “[a]
defendant who was sentenced under the residual clause necessarily bears a significant
risk of facing ‘a punishment that the law cannot impose upon him.’” (quoting
Summerlin, 542 U.S. at 352). On the basis of these two predicate holdings—neither
of which had been made by the Supreme Court—the Seventh Circuit then held that
“[t]here is no escaping the logical conclusion that the Court itself has made Johnson
categorically retroactive to cases on collateral review.” Price, 2015 WL 4621024,
at *3.
We decline to adopt the Seventh Circuit’s approach in Price, under which that
court 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. Our sister circuit did what we have said we cannot do: it
made its “own determination that a new rule fits within [a] Teague exception [to
non-retroactivity].” Cannon, 297 F.3d at 994.
The Eleventh Circuit followed a similar path in Rivero. It concluded,
however, that “[n]o combination of holdings of the Supreme Court necessarily dictate
that Johnson should be applied retroactively on collateral review.” 2015 WL
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4747749, at *2 (internal quotation marks omitted). Rivero began by noting that the
Supreme Court did not expressly state in Johnson that its holding applies
retroactively, nor has the Court applied the Johnson holding on collateral review in a
later case. See id. But the Eleventh Circuit then proceeded to conclude that “the rule
announced in Johnson does not meet the criteria the Supreme Court uses to determine
whether the retroactivity exception for new substantive rules applies.” Id. Rivero
reasoned—contrary to the holding in Price—that although Johnson announced a new
substantive rule of constitutional law, it did not “suggest[] that ‘certain kinds of
primary, private individual conduct are beyond the power of Congress to proscribe.’”
Id. (quoting Teague, 489 U.S. at 311 (plurality opinion)) (brackets omitted).
Our sister circuits’ holdings in Price and Rivero illustrate the difficulty with
their approach to determining whether the Supreme Court has made a new rule of
constitutional law retroactive to cases on collateral review. Both courts applied the
Supreme Court’s retroactivity principles, yet they reached opposite conclusions. This
is unsurprising, as the Supreme Court has recognized “the difficult legal analysis that
can be required to determine questions of retroactivity in the first instance.” Tyler,
533 U.S. at 664. And that is why the Court has said we need not (and should not)
“do more than simply rely on Supreme Court holdings on retroactivity.” Id.III.
The Supreme Court has not held in one case, or in a combination of holdings
that dictate the conclusion, that the new rule of constitutional law announced in
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Johnson is retroactive to cases on collateral review. Therefore, Gieswein’s motion
does not “satisf[y] the stringent requirements for the filing of a second or successive
[motion].” Case, 731 F.3d at 1028 (internal quotation marks omitted). Accordingly,
we deny Gieswein’s motion for authorization to file a second or successive
§ 2255 motion. This denial of 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). Gieswein’s Motion for Resentencing is denied.
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