In re Hoffner

• Decision Date: 07 September 2017
• Docket Number: No. 15-2883.,15-2883.
• Citation: 870 F.3d 301
• Parties: IN RE: Thomas F. HOFFNER, Jr., Petitioner
• Court: U.S. Court of Appeals — Third Circuit

870 F.3d 301

IN RE: Thomas F. HOFFNER, Jr., Petitioner

No. 15-2883.

United States Court of Appeals, Third Circuit.

Argued: July 18, 2017

Filed: September 7, 2017

Lisa B. Freeland [ARGUED], Office of Federal Public Defender, 1500 Liberty Center, 1001 Liberty Avenue, Pittsburgh, PA 15222, Counsel for Petitioner

Louis D. Lappen [ARGUED], Robert A. Zauzmer, Emily McKillip, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Respondent

Before: McKEE, AMBRO and RESTREPO, Circuit Judges.

OPINION OF THE COURT

RESTREPO, Circuit Judge.

In Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. An identical residual clause existed until recently in the Federal Sentencing Guidelines' career offender guideline, U.S.S.G. § 4B1.2(a)(2). Petitioner Thomas Hoffner was sentenced as a career offender based on this residual clause in 2002. He seeks our authorization to challenge his sentence via a successive habeas corpus petition, 28 U.S.C. § 2255(h)(2).

The ultimate question is whether Hoffner has a meritorious vagueness claim under Johnson . But that is not the question before us now. The only issue we must decide is whether Hoffner has made a "prima facie showing," 28 U.S.C. § 2244(b)(3)(C), of the pre-filing requirements for a successive habeas corpus petition. To answer this seemingly simple question, we must cover some rocky terrain. We consider Johnson and its progeny, as well as the pre-filing requirements for a second or successive habeas petition.

We conclude that Hoffner has made a prima facie showing, and so we will authorize his successive habeas petition.¹

I. Factual and Procedural Background

In 2002, Hoffner was convicted of conspiracy to distribute methamphetamine, 21 U.S.C. § 846, distribution of methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use of a communication facility, 21 U.S.C. § 843(b). At sentencing, the District Court applied the career offender guideline, U.S.S.G. § 4B1.1, based upon two prior convictions Hoffner incurred in Pennsylvania state court in the 1980s. The first was for simple assault and the second was for burglary, robbery and conspiracy. He was sentenced to twenty years' imprisonment and five years' supervised release.²

Hoffner filed a direct appeal and a habeas corpus petition, which we rejected. United States v. Hoffner , 96 Fed.Appx. 85 (3d Cir. 2004) ; United States v. Hoffner , No. 00-cr-00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005), appeal denied No. 05-5478 (3d Cir. July 18, 2006). In 2012, he filed an unauthorized second habeas corpus petition. In 2015, he filed the pro se motion before us seeking to file a successive habeas corpus petition under Johnson . We appointed counsel, requested briefing, and held oral argument.

II. Johnson and Its Progeny

A. Johnson

In Johnson , the Supreme Court considered a due process challenge to the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g). Ordinarily, "the law punishes violation of this ban by up to 10 years' imprisonment." Johnson , 135 S.Ct. at 2555 (citing 18 U.S.C. § 924(a)(2) ). However, if a defendant is an "armed career criminal," the ACCA imposes a mandatory minimum sentence of fifteen years and a statutory maximum sentence of life. Id. (citing 18 U.S.C. § 924(e)(1) ).³

A defendant is an "armed career criminal" if, in relevant part, he "has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony.’ " Id. (citing 18 U.S.C. § 924(e)(1) ). Pre- Johnson , the definition of "violent felony" had three clauses—one enumerating offenses, one enumerating elements, and the residual clause. 18 U.S.C. § 924(e)(2)(B). The residual clause defined a crime as a "violent felony" if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) ; see also Johnson , 135 S.Ct. at 2557.

In Johnson , the Supreme Court struck the ACCA residual clause as unconstitutionally vague. Johnson , 135 S.Ct. at 2563. The Court explained that the Fifth Amendment's vagueness doctrine bars the Government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id. at 2556. These principles apply to laws "defining elements of crimes" or "fixing sentences." Id. at 2557. The ACCA was a law "fixing sentences." Beckles , 137 S.Ct. at 892. Its residual clause denied defendants "fair notice" and "invite[d] arbitrary enforcement by judges." Johnson , 135 S.Ct. at 2557. Thus, Johnson held that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id.

B. Welch

The Supreme Court quickly resolved the issue of Johnson's retroactivity in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Welch held that Johnson is retroactive to cases on collateral review. Id. at 1264.

In Welch , the Supreme Court applied the retroactivity test set forth in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Teague provides that "new constitutional rules of criminal procedure" are generally not retroactive to cases on collateral review. Welch , 136 S.Ct. at 1264 (quoting Teague , 489 U.S. at 310, 109 S.Ct. 1060 ). However, "two categories of decisions ... fall outside this general" retroactivity bar: "new substantive rules" and "watershed rules of criminal procedure." Id. (emphasis and citations omitted). A procedural rule "regulate[s] only the manner of determining the defendant's culpability." Id. at 1265 (emphasis and citation omitted). A substantive rule "alters the range of conduct or the class of persons that the law punishes." Id. at 1264–65 (citation omitted).⁴

Welch held that Johnson is a new "substantive" rule because it alters "the substantive reach of the [ACCA]" such that a defendant can no longer be sentenced as an armed career criminal "based on" the residual clause. Id. at 1265 ; see also Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016). Conversely, Johnson is not "procedural" because it "had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCA]." Welch , 136 S.Ct. at 1265.

C. Johnson Challenges to the Career Offender Guideline

From Johnson grew challenges to another residual clause, the one contained in the career offender guideline. The career offender guideline is a severe sentencing enhancement for certain recidivist offenders. It "specif[ies] a sentence to a term of imprisonment at or near the maximum term." 28 U.S.C. § 994(h).

The career offender guideline applies to a defendant where, inter alia , "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense" and "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Until recently, the career offender guideline defined a "crime of violence" as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .

Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 890-91, 197 L.Ed.2d 145 (2017) (emphasis in original) (quoting U.S.S.G. § 4B1.2(a) ).⁵

In this definition, the final clause is the residual clause. It is identical to the ACCA residual clause struck in Johnson . Compare 18 U.S.C. § 924(e)(2)(B)(ii) ("or otherwise involves conduct that presents a serious potential risk of physical injury to another"), with U.S.S.G. § 4B1.2(a)(2) ("or otherwise involves conduct that presents a serious potential risk of physical injury to another"). For this reason, the residual clause was struck from the career offender guideline prospectively, effective August 1, 2016. U.S.S.G. Supp. App. C, Amend. 798.

1. Booker

Before its elimination, the residual clause of the career offender guideline had been effective since November 1, 1989. U.S.S.G. Supp. App. C, Amend. 268.⁶ Significantly, its use spanned two eras in sentencing under the Federal Sentencing Guidelines—the pre- and post- United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), eras. We pause briefly to review this distinction, as it is necessary to our analysis.

In the earlier, pre- Booker era, the Sentencing Guidelines had "the force and effect of laws" and were "mandatory and binding on all judges." Id. at 233–34, 125 S.Ct. 738. A sentencing court was required to "impose a sentence of the kind, and within the range," set by the Guidelines. Id. at 234, 125 S.Ct. 738 (quoting 18 U.S.C. § 3553(b) ). Although the sentencing court could depart from the range, departures were based on "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C. § 3553(b). "In most cases, as a matter of law, the Commission ... adequately t[ook] all relevant factors into account, and no departure [was] legally permissible." Booker , 543 U.S. at 234, 125 S.Ct. 738.

In Booker , the Supreme Court held that the Sentencing Guidelines violated the Sixth Amendment. Id. at 226–27, 125 S.Ct. 738. In a separate, remedial opinion, the Court rendered the Guidelines "advisory." Id. at 245, 125 S.Ct. 738. In the current, post- Booker era, a sentencing court must "consider Guidelines ranges" but may "tailor the sentence in...