Shedrick Henry v. M. Spearman , 899 F.3d 703 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEDRICK L. HENRY, No. 17-70170
Petitioner,
v. OPINION
M. ELIOT SPEARMAN, Warden,
Respondent.
Application to File Second or Successive Petition
Under 28 U.S.C. § 2254
Argued and Submitted June 15, 2018
San Francisco, California
Filed August 6, 2018
Before: Mary M. Schroeder, David M. Ebel, *
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
*
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 HENRY V. SPEARMAN
SUMMARY **
Habeas Corpus
The panel granted California prisoner Shedrick Henry’s
motion to file a second or successive 28 U.S.C. § 2254
habeas corpus petition urging that California’s second-
degree felony-murder rule is unconstitutionally vague under
Johnson v. United States, 135 S. Ct. 2551 (2015).
The panel rejected the State of California’s arguments
that Henry lacks standing to bring a vagueness challenge and
that his claim is effectively moot. The panel held that there
is a plausible position that Johnson did not limit its
constitutional rule to certain features of the Armed Career
Criminal Act’s residual clause that the State contends are
absent from California’s second-degree felony-murder rule,
and concluded that Henry has made a prima facie showing
that his claim “relies on” the new and retroactively
applicable rule of Johnson.
COUNSEL
Carmen A. Smarandoiu (argued) and Todd M. Borden,
Assistant Federal Public Defenders; Steven G. Kalar,
Federal Public Defender; Office of the Federal Public
Defender, San Francisco, California; for Petitioner.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HENRY V. SPEARMAN 3
Gregory A. Ott (argued), Deputy Attorney General; Peggy
S. Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
San Francisco, California; for Respondent.
OPINION
GOULD, Circuit Judge:
California prisoner Shedrick Henry was convicted of
felony discharge of a firearm at an inhabited dwelling and
second-degree murder in 1996. The jury was instructed that
it could convict Henry of murder based on California’s
unique second-degree felony-murder rule, which imputes
the requisite malice from the commission of a felony that,
viewed in the abstract, is “inherently dangerous.” Henry
previously filed an unsuccessful federal habeas corpus
petition in the U.S. District Court for the Northern District
of California. He now timely moves for leave to file a
second or successive 28 U.S.C. § 2254 habeas corpus
petition, urging that California’s second-degree felony-
murder rule is unconstitutionally vague under the U.S.
Supreme Court’s precedent in Johnson v. United States,
135 S. Ct. 2551 (2015). We conclude that Henry has made
the necessary showing to file another § 2254 petition, and so
we grant Henry’s motion to file a second or successive
habeas corpus petition.
I
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) instituted a “gatekeeping” procedure for
screening second or successive federal habeas corpus
petitions. Felker v. Turpin, 518 U.S. 651, 657 (1996).
4 HENRY V. SPEARMAN
Before filing such a petition in district court, a state prisoner
must obtain authorization from the court of appeals.
28 U.S.C. § 2244(b)(3)(A). The court of appeals must deny
the motion unless it makes a “prima facie showing” both that
the motion presents a claim not previously raised and that it
satisfies one of two narrow exceptions. Id. § 2244(b).
In this case, Henry must make a prima facie showing that
his proposed 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.” Id. § 2244(b)(2)(A). Requests to file second
or successive petitions usually hinge on the latter three
demanding requirements, with no dispute that a petitioner’s
habeas corpus claim “relies on” an asserted new and
retroactive rule of constitutional law. See, e.g., Tyler v.
Cain, 533 U.S. 656, 662 (2001) (recognizing only those
“three prerequisites”); Jones v. Ryan, 733 F.3d 825, 842–43
(9th Cir. 2013) (same). Here, however, those requirements
are unquestionably satisfied. In Welch v. United States,
136 S. Ct. 1257 (2016), the Supreme Court held that Johnson
announced a new rule of constitutional law retroactively
applicable to cases on collateral review. Id. at 1264, 1268.
And because Johnson was decided in 2015, its rule was
unavailable when Henry filed his previous federal habeas
corpus petition more than a decade earlier. See, e.g., In re
Smith, 142 F.3d 832, 835 (5th Cir. 1998); Felker v. Turpin,
83 F.3d 1303, 1306 (11th Cir. 1996).
So the controlling question for us is whether Henry has
made a prima facie showing that his petition “relies on”
Johnson. We have never before considered what is required
for a claim to “rel[y]” on a qualifying new rule for the
HENRY V. SPEARMAN 5
purposes of § 2244(b). 1 But by its terms, § 2244(b) imposes
on the petitioner only a “light burden.” In re Hoffner, 870
F.3d 301, 307 (3d Cir. 2017). To begin with, a prima facie
showing is “simply a sufficient showing of possible merit to
warrant a fuller exploration by the district court.” Cooper v.
Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004) (en banc)
(citation omitted). Further, § 2244(b)(3)(D) urges courts to
resolve motions to file second or successive petitions within
30 days, which “suggests that [we] do not have to engage in
. . . difficult legal analysis” in our gatekeeping role. Tyler,
533 U.S. at 664. And § 2244(b)(3)(E) precludes rehearing
or Supreme Court review of a panel’s screening decision,
which “counsels greater caution before denying an
authorization than before granting one” because an
erroneously denied motion cannot be corrected, while an
erroneously filed petition can still be denied on its merits.
Moore v. United States, 871 F.3d 72, 78 (1st Cir. 2017).
We agree with the Third Circuit that § 2244(b) calls for
a “permissive and flexible, case-by-case approach” to
deciding whether a second or successive habeas corpus
petition “relies on” a qualifying new rule of constitutional
law. In re Hoffner, 870 F.3d at 309. We ask whether the
rule “substantiates the movant’s claim,” even if the rule does
not “conclusively decide[]” the claim, or if the rule would
need a “non-frivolous extension” for the petitioner to get
relief. Id. (quoting In re Arnick, 826 F.3d 787, 790 (5th Cir.
2016) (Elrod, J., dissenting)); see also In re Hubbard,
1
In United States v. Geozos, 870 F.3d 890 (9th Cir. 2017), we
discussed the required showing for a claim to “rel[y]” on a qualifying
new rule of constitutional law for the purposes of analyzing the merits of
a second or successive 28 U.S.C. § 2255 habeas corpus petition, not for
the purposes of an application to file a second or successive habeas
corpus petition under 28 U.S.C. § 2244(b), where only a “prima facie”
showing is required.
6 HENRY V. SPEARMAN
825 F.3d 225, 231 (4th Cir. 2016) (“[I]t 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) (“[W]hether the
new rule . . . extends to a prisoner like [petitioner] . . . goes
to the merits of the motion and is for the district court, not
the court of appeals.”).
II
Henry’s petition invokes Johnson based on the following
line of reasoning: In Johnson, the Supreme Court held that
the Armed Career Criminal Act’s (“ACCA”) residual clause
was unconstitutionally vague. The ACCA prescribes a
mandatory minimum sentence if a person convicted of being
a felon in possession of a firearm has three prior convictions
for “violent felonies.” That statutory term includes any
felony 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). The italicized text is known as the
ACCA’s residual clause. Because the ACCA looks simply
to the existence of prior “violent felony” convictions, the
statute requires a court to assess “whether a crime qualifies
as a violent felony ‘in terms of how the law defines the
offense and not in terms of how an individual offender might
have committed it on a particular occasion.’” Johnson,
135 S. Ct. at 2557 (quoting Begay v. United States, 553 U.S.
HENRY V. SPEARMAN 7
137, 141 (2008)). “Deciding whether the residual clause
covers a crime thus requires a court to picture the kind of
conduct that the crime involves in ‘the ordinary case,’ and to
judge whether that abstraction presents a serious potential
risk of physical injury.” Id. (quoting James v. United States,
550 U.S. 192, 208 (2007)).
The Court concluded that “[t]wo features” of the
ACCA’s residual clause render it unconstitutionally vague.
Id. First, “the residual clause leaves grave uncertainty about
how to estimate the risk posed by a crime” by tying “the
judicial assessment of risk to a judicially imagined ‘ordinary
case’ of a crime, not to real-world facts or statutory
elements.” Id. Second, “the residual clause leaves
uncertainty about how much risk it takes for a crime to
qualify as a violent felony.” Id. at 2558. The resulting
“wide-ranging inquiry . . . both denies fair notice to
defendants and invites arbitrary enforcement by judges.” Id.
at 2557. “By combining indeterminacy about how to
measure the risk posed by a crime with indeterminacy about
how much risk it takes for the crime to qualify as a violent
felony, the residual clause produces more unpredictability
and arbitrariness than the Due Process Clause tolerates.” Id.
at 2558.
Henry contends that the same two features of
indeterminacy are at work in California’s second-degree
felony-murder rule. The California Supreme Court has read
the state’s murder statute as codifying the common law
felony-murder rule, which “makes a killing while
committing certain felonies murder without the necessity of
further examining the defendant’s mental state.” People v.
Chun, 203 P.3d 425, 430 (Cal. 2009). The California penal
code begins by defining murder as an unlawful killing with
“malice aforethought.” Cal. Penal Code § 187. That malice
8 HENRY V. SPEARMAN
may be “express” or “implied,” as when “the circumstances
attending the killing show an abandoned and malignant
heart.” Id. § 188. Section 189 then defines first-degree
murder to include all express malice murders and certain
implied malice murders—such as a killing during the
commission of arson, rape, or robbery. See id. § 189. That
provision’s residual clause classifies all other types of
implied malice murders as second-degree murder. See id.
First-degree felony murder is thus a killing during the
commission of a felony enumerated in § 189. Chun,
203 P.3d at 430. Second-degree felony murder, however, is
less clearly defined.
According to the California Supreme Court, the state’s
second-degree felony-murder rule covers any unlawful
killing during the perpetration of a felony that is not
enumerated in § 189 yet is “inherently dangerous” to human
life. Id. (citation omitted). Unlike the felony-murder rules
in all other states, California’s rule takes an abstract
approach to evaluating a crime’s dangerousness. See Evan
Tsen Lee, Why California’s Second-Degree Felony-Murder
Rule is Now Void for Vagueness, 43 Hastings Const. L.Q. 1,
53–56 (2015). California courts determine whether a felony
is inherently dangerous by looking to “the elements of the
felony in the abstract, not the particular facts” of the
defendant’s conduct. Chun, 203 P.3d at 434. At times the
California Supreme Court has asked whether, “by its very
nature, [the crime] cannot be committed without creating”
an undue risk to human life, People v. Burroughs, 678 P.2d
894, 900 (Cal. 1984), while at other times it has considered
the ordinary commission of a crime, “even if, at the time of
the [offense],” there was no innate risk at all, People v.
Hansen, 885 P.2d 1022, 1027 (Cal. 1994), overruled on
other grounds by Chun, 203 P.3d 425. Compare also, e.g.,
People v. Howard, 104 P.3d 107, 112 (Cal. 2005) (holding
HENRY V. SPEARMAN 9
that a felony that “can be committed without endangering
human life” is not inherently dangerous), with People v.
Patterson, 778 P.2d 549, 558 (Cal. 1989) (remanding for the
trial court to evaluate “various medical articles and reports”
in determining whether the felony is typically sufficiently
dangerous).
Also, the risk threshold for an inherently dangerous
crime is imprecise, with the California Supreme Court
alternatingly describing that standard as a “substantial risk”
or “high probability” that someone will be killed. See, e.g.,
Howard, 104 P.3d at 111 (substantial risk); People v.
Robertson, 95 P.3d 872, 878 (Cal. 2004) (either substantial
risk or high probability); Patterson, 778 P.2d at 558 (high
probability); Burroughs, 678 P.2d at 900 (substantial risk),
overruled on other grounds by Chun, 203 P.3d 425. The
“high probability” test requires more than a “substantial
risk” of death. Patterson, 778 P.2d at 560 (Lucas, C.J.,
concurring and dissenting); id. at 567 (Mosk, J., dissenting).
But it does not require that death result in “a majority, or
even in a great percentage, of instances.” Robertson, 95 P.3d
at 878 (citation omitted).
Henry contends that like the ACCA’s residual clause,
California’s second-degree felony-murder rule combines
“uncertainty about how to estimate the risk posed by a
crime” with “uncertainty about how much risk it takes for a
crime to qualify” as a covered crime. Johnson, 135 S. Ct. at
2557–58. He argues first that both the residual clause and
the second-degree felony-murder rule require courts to
assess the degree of risk posed by a “judge-imagined
abstraction,” without regard for “real-world facts” or
“whether creation of risk is an element of the crime.” Id. He
argues second that the risk standards are similarly
indeterminate: a “serious potential risk” of injury versus a
10 HENRY V. SPEARMAN
“substantial risk” or “high probability” of causing death.
Although there are many differences between the two laws,
Henry’s argument is that Johnson recognizes a vagueness
problem where, as here, imprecise standards like
“‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk’” are
applied to “a judge-imagined abstraction” of the conduct
underlying a felony conviction. 135 S. Ct. at 2558, 2561.
III
The State counters with its argument that Johnson cannot
substantiate Henry’s claim because he lacks standing to
bring a vagueness challenge, his claim is moot, and Johnson
cannot possibly be extended to California’s second-degree
felony-murder rule. Our task here is limited. We review the
State’s contentions merely to determine whether relief is
foreclosed by precedent or otherwise is facially implausible,
leaving the merits of the claim for the district court to address
in the first instance. See In re Hoffner, 870 F.3d at 309;
Cooper, 358 F.3d at 1119.
A
The State first contends that Henry has not made a prima
facie showing that he has standing to challenge California’s
second-degree felony-murder rule as unconstitutionally
vague. Before Johnson, the Supreme Court had held that
“[a] plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.” Holder v. Humanitarian
Law Project, 561 U.S. 1, 18–19 (2010) (quoting Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982)). The State contends that Henry’s conduct was
clearly proscribed because the year before he committed his
offense of discharging a firearm at an inhabited dwelling, the
California Supreme Court held in Hansen that this felony
HENRY V. SPEARMAN 11
was inherently dangerous. See 885 P.2d at 1027. Similarly,
the U.S. Supreme Court previously held that “[o]bjections to
vagueness under the Due Process Clause rest on the lack of
notice, and hence may be overcome in any specific case
where reasonable persons would know that their conduct is
at risk.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988).
In the State’s view, any reasonable person would know that
shooting at an inhabited dwelling is inherently dangerous,
even without the decision in Hansen.
These pre-Johnson decisions do not deny Henry standing
to raise a facial vagueness challenge here. Johnson did not
consider whether, as the court of appeals had held, the
petitioner’s conviction for unlawful possession of a sawed-
off shotgun qualified as a violent felony under the ACCA’s
residual clause. See 135 S. Ct. at 2556–62. The Court
instead looked past this as-applied challenge directly to the
petitioner’s facial challenge. In so doing, Johnson
concluded that the Court’s decisions “squarely contradict the
theory that a vague provision is constitutional merely
because there is some conduct that clearly falls within the
provision’s grasp.” Id. at 2560–61. The Court then struck
down the residual clause in its entirety, even as to
“straightforward cases.” Id. at 2560, 2563. Henry’s motion
seeks to follow the same path to declaring California’s
second-degree felony-murder rule unconstitutional.
The Supreme Court’s recent decision in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), supports Henry’s approach.
In dissent, Justice Thomas, joined by Justices Kennedy and
Alito, characterized Johnson as implicitly holding that the
ACCA’s residual clause was also vague as applied to the
sawed-off shotgun offense at issue in Johnson. 138 S. Ct. at
1250 (Thomas, J., dissenting). The dissent then concluded
that Johnson was distinguishable because the Immigration
12 HENRY V. SPEARMAN
and Nationality Act was “not vague as applied” to Dimaya.
Id. Citing Holder, Hoffman Estates, and Maynard, the
dissent argued that “[w]hile Johnson weakened the principle
that a facial challenge requires a statute to be vague ‘in all
applications,’ it did not address whether a statute must be
vague as applied to the person challenging it.” Id. But the
majority appears to have recognized and rejected this narrow
interpretation of Johnson. See id. at 1214 n.3 (majority
opinion). Thus, to the extent that the State’s quotations from
Holder, Hoffman Estates, and Maynard are inconsistent with
Johnson and Dimaya, those cases may not reflect the current
state of the law. Henry at least arguably has standing to
enforce his “personal right not to be convicted under a
constitutionally invalid law.” Bond v. United States,
564 U.S. 211, 226 (2011) (Ginsburg, J., concurring); see
also id. at 217 (majority opinion) (holding that a criminal
defendant’s “challenge to her conviction and sentence
‘satisfies the case-or-controversy requirement, because the
incarceration constitutes a concrete injury, caused by the
conviction and redressable by invalidation of the
conviction’” (citation and alterations omitted)). And
because Henry makes a prima facie showing for his facial
challenge, he may file his entire second or successive
petition—including his as-applied challenge—in the district
court. See Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.
1997) (per curiam).
B
Next, the State contends that Henry’s Johnson claim is
“effectively” moot. The challenge to Henry’s conviction, of
course, is a live controversy that is not moot. See Carafas v.
LaVallee, 391 U.S. 234, 237–38 (1968). What the State calls
mootness actually goes to the merits of Henry’s petition: the
State argues that the California Supreme Court’s silent
HENRY V. SPEARMAN 13
denial of Henry’s state habeas corpus petition “implicitly”
found that any instructional error was harmless under
Chapman v. California, 386 U.S. 18 (1967).
This is the type of complicated analysis that courts of
appeals are to avoid when performing their gatekeeping
function under § 2244(b). The requirement of a mere prima
facie showing “render[s] irrelevant other possible grounds
for dismissal such as ultimate lack of merit, nonexhaustion,
procedural default, and the like.” Hertz & Liebman, Federal
Habeas Corpus Practice and Procedure § 28.3[d] (7th ed.
2017); see also, e.g., In re McDonald, 514 F.3d 539, 543–44
& n.3 (6th Cir. 2008) (declining to consider “whether [the
petitioner’s] claim would be deemed beyond the one-year
statute of limitations” or “whether the petitioner’s claims
have been exhausted” in state court). The State’s harmless-
error argument is properly considered by the district court,
not by us at this time.
C
Last, the State argues that Johnson itself precludes
Henry’s claim because its constitutional rule is limited to the
peculiar circumstances of the ACCA’s residual clause.
Besides the “[t]wo features of the residual clause [that]
conspire to make it unconstitutionally vague,” 135 S. Ct. at
2557, Johnson discussed several other parts of the ACCA’s
text and its history in the courts as additional support for
declaring that provision unconstitutional.
The State begins by pointing to the residual clause’s lack
of any limiting temporal language. Without such a
limitation, the ACCA required courts to evaluate the risk of
injury throughout the commission of an offense, even if the
injury is “remote from the criminal act”—such as the risk
posed by a burglar confronting a resident after breaking into
14 HENRY V. SPEARMAN
his or her home. Id. at 2557–59. By contrast, the State
contends, California’s inherently-dangerous-felony inquiry
looks only to the dangers that might occur in the course of
satisfying the elements of an offense. But the State seems to
be mistaken. Where relevant, the California Supreme Court
has assessed the risks that may arise throughout the
commission of a crime, even after its elements are formally
satisfied. See, e.g., Patterson, 778 P.2d at 551–53 (holding
that a conviction for furnishing cocaine could be deemed
“inherently dangerous” based on a recipient later overdosing
on the drug).
The State also argues that Johnson is cabined to the
ACCA based on the list of four crimes that precede the
residual clause. After faulting the residual clause for
“apply[ing] an imprecise ‘serious potential risk’ standard . . .
to a judge-imagined abstraction,” the Court went on to add:
By asking whether the crime “otherwise
involves conduct that presents a serious
potential risk,” moreover, the residual clause
forces courts to interpret “serious potential
risk” in light of the four enumerated crimes—
burglary, arson, extortion, and crimes
involving the use of explosives. These
offenses are “far from clear in respect to the
degree of risk each poses.”
Johnson, 135 S. Ct. at 2558 (citation omitted). The State
contends that the presence of these enumerated offenses was
essential to Johnson’s holding, while California’s second-
degree felony-murder rule involves no such list. But Dimaya
recently rejected this cramped reading of Johnson,
explaining:
HENRY V. SPEARMAN 15
To say that ACCA’s listed crimes failed to
resolve the residual clause’s vagueness is
hardly to say they caused the problem. Had
they done so, Johnson would not have needed
to strike down the clause. It could simply
have instructed courts to give up on trying to
interpret the clause by reference to the
enumerated offenses. . . . . That Johnson
went so much further—invalidating a
statutory provision rather than construing it
independently of another—demonstrates that
the list of crimes was not the culprit. And
indeed, Johnson explicitly said as much. As
described earlier, Johnson found the residual
clause’s vagueness to reside in just “two” of
its features: the ordinary-case requirement
and a fuzzy risk standard. Strip away the
enumerated crimes—as Congress did in [the
Immigration and Nationality Act] § 16(b)—
and those dual flaws yet remain. And ditto
the textual indeterminacy that flows from
them.
138 S. Ct. at 1221 (citations omitted).
Finally, the State contends that the history of courts
struggling with the residual clause was essential to
Johnson’s holding, and that California’s second-degree
felony-murder rule has no such history. After describing the
residual clause’s “[t]wo features” that rendered it
unconstitutional, the Johnson Court noted that “the failure of
persistent efforts to establish a standard can provide evidence
of vagueness.” 135 S. Ct. at 2558 (citation and alteration
omitted) (emphasis added). The Court then wrote that the
“repeated attempts and repeated failures to craft a principled
16 HENRY V. SPEARMAN
and objective standard out of the residual clause confirm its
hopeless indeterminacy.” Id. (emphasis added). As these
quotations make clear, Johnson did not expressly limit its
holding based on the residual clause’s record in the courts,
but said that this evidence confirmed its earlier holding that
the residual clause is unconstitutional. See id. And the
provision at issue in Dimaya lacked this troubled history, yet
the Court reaffirmed that judicial experience struggling with
a statute is not necessary for it to be declared impermissibly
vague. See 138 S. Ct. at 1223.
We conclude that there is a plausible position that
Johnson did not limit its constitutional rule to certain
features of the ACCA’s residual clause that the State
contends are absent from California’s second-degree felony-
murder rule.
IV
AEDPA’s standard of review for a § 2254 habeas corpus
petition is far more demanding than § 2244(b)’s
requirements for authorization to file a second or successive
§ 2254 petition, and although Henry’s habeas corpus claim
may ultimately fail for any number of reasons, those issues
are not presently before us. Because Henry has made a
prima facie showing that his claim “relies on” the new and
retroactively applicable rule of Johnson, we GRANT his
motion to file a second or successive petition in the district
court. We make no final or authoritative decision on the
issues presented by the State of California, except to hold
that Henry has presented a sufficient basis for us to authorize
his filing of a second or successive habeas corpus petition.