Henry v. Spearman

• Decision Date: 06 August 2018
• Docket Number: No. 17-70170,17-70170
• Citation: 899 F.3d 703
• Parties: Shedrick L. HENRY, Petitioner, v. M. Eliot SPEARMAN, Warden, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

899 F.3d 703

Shedrick L. HENRY, Petitioner,

v.M. Eliot SPEARMAN, Warden, Respondent.

No. 17-70170

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2018 San Francisco, California

Filed August 6, 2018

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.

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.

Application to File Second or Successive Petition Under 28 U.S.C. § 2254

Before: Mary M. Schroeder, David M. Ebel,^* and Ronald M. Gould, Circuit Judges.

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 , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). 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, 121 S.Ct. 2478, 150 L.Ed.2d 632 (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 , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (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 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, 121 S.Ct. 2478. 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 , 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. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (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, 127 S.Ct. 1586, 167 L.Ed.2d 532 (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 , 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425, 430 (2009). The California penal code begins by defining murder as an unlawful killing with "malice aforethought." Cal. Penal Code § 187. That malice 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 , 91 Cal.Rptr.3d 106, 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...