Summary
The Fourth Circuit grants authorization to file a successive §2255 motion, holding that 28 U.S.C. §2244(b)(1) applies only to state habeas applications under §2254 and does not govern second or successive §2255 motions by federal prisoners. The court joins the Sixth and Ninth Circuits, concluding that §2255(h)'s incorporation of §2244 refers only to the certification procedures in §2244(b)(3), not the claim-dismissal rule in §2244(b)(1). Because Graham’s claim based on *United States v. Davis* (striking §924(c)'s residual clause) and *United States v. Taylor* (attempted Hobbs Act robbery is not a crime of violence) presents a new substantive rule of constitutional law made retroactive and previously unavailable, it satisfies the §2255(h)(2) gatekeeping standard, and the motion is granted.
Topics
Practice areas
Questions Presented
- Whether 28 U.S.C. § 2244(b)(1) requires dismissal of Graham's claim because it was presented in a prior application.
- Whether Graham meets the standard for filing a second or successive § 2255 motion under 28 U.S.C. § 2255(h)(2).
Holdings
- Section 2244(b)(1) does not apply to second or successive § 2255 motions, and thus does not bar Graham's claim.
- Graham has made a prima facie showing that his Davis claim satisfies § 2255(h)(2) because Davis announced a new rule of constitutional law made retroactive by the Supreme Court, and the rule was previously unavailable to Graham.
Key quotations
“Section 2244(b)(1) states that '[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.'” (5-6)
“Section 2255(h) provides that a 'second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain' either 'newly discovered evidence' or 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'” (8)
“A 'case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.'” (16)
Factual background
In 2015, Kenneth Graham was convicted of attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and possession of a firearm as a felon in violation of 18 U.S.C. § 922(g). The predicate for the § 924(c) conviction was attempted Hobbs Act robbery. He was sentenced to 382 months imprisonment. Subsequently, the Fourth Circuit in United States v. Taylor (2020, affirmed 2022) held that attempted Hobbs Act robbery is not a crime of violence under § 924(c) because it does not satisfy the elements clause and the residual clause is invalid. Graham seeks to vacate his § 924(c) conviction.
Procedural history
Graham was convicted in 2015; his conviction was affirmed on direct appeal. He filed a § 2255 motion in 2018, which was dismissed as untimely. He moved for authorization in 2019, which was summarily denied. He filed the instant authorization motion in 2020, challenging his § 924(c) conviction under United States v. Davis. The court placed the case in abeyance pending United States v. Taylor and then ordered briefing on the impact of § 2244(b)(1).
Remand instructions
The authorization motion is granted; the district court may consider the successive § 2255 motion.