United States District Court, W.D. Virginia, Charlottesville Division
K. MOON UNITED STATES DISTRICT JUDGE
habeas case is before the Court in an unusual posture. Citing
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson II”), Defendant filed his
petition on February 10, 2016, which the parties briefed.
(Dkts. 58, 62, 64). I issued an opinion (dkt. 65,
available at 2016 WL 2757451 (W.D. Va. May 11,
2016)) and an order denying Defendant's petition, but I
also granted a certificate of appealability. (Dkts. 66, 67).
Before the judgment became final, Defendant moved for
reconsideration in light of intervening precedent. (Dkt. 68).
The parties briefed that motion (dkts. 73, 74), which I
denied. (Dkt. 76, available at 2016 WL 3963234 (W.D.
Va. July 21, 2016); dkt. 77 (Order)). Defendant timely noted
appeal presented an important post-Johnson II
question: Does Virginia robbery qualifies as a violent felony
under the Armed Career Criminal Act (“ACCA”)?
Expedited briefing in the Fourth Circuit occurred, oral
argument was scheduled, and other cases were held in abeyance
pending a decision. But it was discovered-for the first time
on appeal-that Defendant had filed a prior § 2255
petition, a fact not apparent from the criminal docket in
this case. Thus, the February 10th petition had not received
pre-filing approval from the Court of Appeals, which meant
this Court and the Fourth Circuit lacked jurisdiction.
See 28 U.S.C. § 2255(h). On a joint motion, the
Fourth Circuit dismissed the petition but treated the notice
of appeal as a request to file a successive petition, which
it granted. (Dkt. 83). The Fourth Circuit, however, retained
the oral argument date for October 27, 2016, so it could move
forward with an appeal from this Court's eventual ruling
on the now-authorized petition, which Defendant filed on
September 12, 2016. (Dkt. 88).
request of the parties (dkts. 86, 87, 88), the Court will
incorporate and adopt the parties' prior submissions
pertaining to the February 10th petition. All arguments
raised therein are considered preserved. Relatedly, the Court
will adopt and incorporate its prior opinions and orders. For
the reasons stated in those filings, the Court will deny
Defendant's September 12th petition and grant the
Government's motion to dismiss. For completeness of the
record on appeal, the Court also considers (and rejects) an
argument the Government asserts is a threshold bar to
considering a successive habeas petition.
Adoption of Prior Submissions
the February 10th petition was unauthorized, the submissions,
opinions, and orders pertaining to it were a nullity for lack
of jurisdiction. So the parties ask that their prior
submissions be adopted and deemed applicable to the instant
petition. The Court will oblige.
Consideration of Requirements for Successive Petitions in 28
U.S.C. § 2244
remains, however, a (slightly) new argument that the Court
must consider. The Government observes that “Winston is
now in a different procedural posture than it was understood
he was when his Petition was initially considered by the
Court.” (Dkt. 86 at 2). Section 2244(b)(4) of Title 28
instructs that a district court “shall dismiss any
claim presented in a second or successive application that
the court of appeal has authorized to be filed unless the
applicant shows that the claim satisfies the
requirements” elsewhere found in § 2244. The
Government argues Defendant cannot satisfy the requirement in
§ 2244(b)(2)(A) that his claim “relies on
a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously available.” (emphasis added). It contends
that Defendant's petition turns “entirely” on
a statutory interpretation case regarding the ACCA's
force clause, Johnson v. United States, 559 U.S.
(2010) (“Johnson I”), not on Johnson
The Court's Prior Rulings Reject the Government's
not presented with the identical legal issue, my May 11th
opinion explained, in rejecting the Government's statute
of limitations defense, why Defendant's petition in fact
relies on Johnson II. (Dkt. 65). In surveying the
ACCA, Johnson I, and Johnson II, I observed
that the petition “depends upon the interplay
of Johnson I and Johnson II.”
(Id. at 3 (emphasis added); see id. at 4
(petition “does not rest on Johnson I or
II independently, but on them together . .
.”). This is so because Johnson II eliminated
an escape-hatch-that is, a statutory hook on which the
Government otherwise could have hung Defendant's ACCA
enhancement if robbery did not satisfy the force clause.
(Id. at 5-6 & n.2). As numerous post-Johnson
I, pre-Johnson II appellate cases make clear
(id. at 6 n.2), the Government frequently and
successfully used the residual clause in precisely that way,
a point which meant that Defendant had no reason to bring a
futile petition prior to Johnson II. Thus, the
decision in Johnson II afforded Defendant an avenue
of relief that was previously unavailable to him, and his
petition utilizes that decision.
stated above, the Court adopts its prior reasoning. It also
adds three bases for its conclusion in Parts II.B-D.
The Plain Text of § 2244(b)(2) Does Not Support the
begin, as always in deciding questions of statutory
interpretation, with the text of the statute.” Othi
v. Holder, 734 F.3d 259, 265 (4th Cir. 2013). In so
doing, the Court applies “the fundamental canon of
statutory construction that words will be interpreted as
taking their ordinary, contemporary, common meaning.”
United States v. Serafini, 826 F.3d 146, 149 (4th
Cir. 2016) (internal quotations omitted).
2244(b)(4) requires dismissal of this petition if other
requirements in 28 U.S.C. § 2244 are not met. The
Government points to § 2244(b)(2)(A), which states:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless . . .
the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(emphasis added). The Government contends Defendant's
“claim is rooted entirely in the application of”
Johnson I, and “thus does not rely upon a new
rule of constitutional law.” (Dkt. 86 at 2).
the critical word in the statute is “relies.”
See In re Hubbard, 825 F.3d 225, 229 (4th Cir. 2016)
(placing emphasis on that portion of statute). The
Government's position is that § 2244(b)(2)(A)
requires that Defendant's petition must rest squarely and
solely on Johnson II. If Johnson I plays
any role, so the argument goes, the petition must be
is defined as: “to be dependent [on], ” Merriam
Webster's Collegiate Dictionary (10th ed. 1993);
“to trust or depend” upon, Webster's New
World Dictionary (1983), or; “to find support: depend,
” Webster's Third New International Dictionary.
While these definitions include the notion of dependence,
they do not connote exclusivity: Reliance on one thing does
not foreclose reliance on another, even regarding the same
objective. A person relies on his car to get to work, but he
might also rely on other methods at times (e.g.,
bus, train). And even when he relies on his car, he also