Hardy v. United States

United States Court of Appeals
For the First Circuit
No. 16-1668
IMAN HARDY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
APPLICATION FOR LEAVE TO FILE A SECOND
OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Sharon Fray-Witzer for petitioner.
Michael A. Rotker, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, Criminal Division, U.S.
Department of Justice, Trevor N. McFadden, Deputy Assistant
Attorney General, Criminal Division, U.S. Department of Justice,
William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz,
Assistant U.S. Attorney, Chief, Appellate Division, were on brief,
for respondent.
September 13, 2017
KAYATTA, Circuit Judge. For the reasons stated in
today's opinion in Moore v. United States, No. 16-1612 (1st Cir.
Sept. 13, 2017), we certify Iman Hardy's successive § 2255 motion
insofar as it argues that Johnson II invalidates the residual
clause of the pre-Booker career offender guideline. See 28 U.S.C.
§ 2255(h)(2) (setting out the certification requirements for
successive motions).
Hardy also argues that Welch v. United States, 136 S.
Ct. 1257 (2016), establishes that United States v. Booker, 543
U.S. 220 (2005), is a substantive decision with retroactive effect.
We cannot certify this portion of Hardy's motion. This court has
already held that Booker was not a substantive decision and
therefore did not have retroactive effect. See Cirilo-Muñoz v.
United States, 404 F.3d 527, 532–33 (1st Cir. 2005); see also
Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003)
(holding that Apprendi v. New Jersey, 530 U.S. 466 (2000), which
held that a jury rather than a judge must find facts that raise a
statutory maximum, was not a substantive decision). Welch has not
cast doubt on that holding. Instead, Welch reaffirmed that a
decision that "'allocate[s] decisionmaking authority' between
judge and jury" is procedural. Welch, 136 S. Ct. at 1265 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). Booker, which
held that the mandatory guidelines were unconstitutional insofar
as they allowed a judge, rather than a jury, to find facts that
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increased a defendant's maximum mandatory guidelines sentence, 543
U.S. at 244 (opinion of Stevens, J.), was precisely a decision of
this sort.
Accordingly, we certify Iman Hardy's successive § 2255
motion insofar as it argues that Johnson II invalidates the
residual clause of the pre-Booker career offender guideline. We
do not certify it insofar as it argues that Booker is a substantive
decision with retroactive effect under Welch.
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