United States v. Vargas-Soto ( 2022 )

Case: 20-10705 Document: 00516341053 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 20-10705 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Vargas-Soto,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-cv-680
Before Davis, Elrod, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
The question presented is whether Jose Vargas-Soto’s successive
motion for postconviction relief under 28 U.S.C. § 2255 is procedurally
barred. We say yes.
I.
We begin with (A) a description of the relevant legal background.
Then we explain (B) Vargas-Soto’s procedural history.
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A.
First some legal background. The Supreme Court long struggled with
interpreting various “residual clauses” in federal criminal statutes, such as
the definition of “violent felony” in the Armed Career Criminal Act
(“ACCA”) and the definition of “crime of violence” in the Immigration and
Nationality Act (“INA”). See 18 U.S.C. § 924(e)(2)(B) (ACCA); 8 U.S.C.
§ 16(b) (INA). Initially, the Court applied a “categorical approach” to
determine whether a particular offense fell within a residual clause. See, e.g.,
Taylor v. United States, 495 U.S. 575, 601 (1990) (holding that “the legislative
history of [ACCA] shows that Congress generally took a categorical approach
to predicate offenses”); Leocal v. Ashcroft, 543 U.S. 1 (2004) (applying the
categorical approach to the INA’s definition of “aggravated felony,” which
includes the residual clause’s definition of “crime of violence,” but not
addressing the constitutionality of the residual clause). That approach,
however, led to a litany of head-scratchingly inconsistent results. See
Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in
judgment) (“After almost two decades with Taylor’s ‘categorical approach,’
only one thing is clear: ACCA’s residual clause is nearly impossible to apply
consistently.”).
That led some on the Court to question whether ACCA’s residual
clause was unconstitutionally vague. See, e.g., James v. United States, 550 U.S.
192, 214–31 (2007) (Scalia, J., dissenting); Sykes v. United States, 564 U.S. 1,
28 (2011) (Scalia, J., dissenting) (reiterating the view that “ACCA’s residual
provision is a drafting failure and [should be] declare[d] . . . void for
vagueness”). For many years, however, the Court continued to apply the
residual clauses anyway.
After about a decade of struggling, the skeptics won. In Johnson v.
United States, 576 U.S. 591 (2015), the Supreme Court held ACCA’s residual
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clause violated the defendant’s due-process rights because it was “void for
vagueness” and overruled James and Sykes. Id. at 595–606. As with so many
landmark decisions, however, Johnson raised more questions than it
answered. Chief among them: whether the void-for-vagueness holding
should have retroactive effect, and whether other residual clauses (such as
the INA’s) are also unconstitutionally vague.
The Supreme Court started with retroactivity. The Court held that in
Johnson, it “announced a substantive rule that has retroactive effect in cases
on collateral review.” Welch v. United States, 578 U.S. 120, 127, 135 (2016);
cf. Schriro v. Summerlin, 542 U.S. 348, 353–55 (2004) (explaining the
difference between substantive and procedural rules).
Then the Court turned to whether Johnson extended to other residual
clauses. In Beckles v. United States, 137 S. Ct. 886 (2017), the Court concluded
that the “advisory Guidelines are not subject to vagueness challenges under
the Due Process Clause.” Id. at 890. In Sessions v. Dimaya, 138 S. Ct. 1204(2018), the Court held that the INA’s residual clause was “similarly
worded” to the one in Johnson and in turn “suffer[ed] from the same
constitutional defect.” Id. at 1210. Finally, in United States v. Davis, 139 S.
Ct. 2319 (2019), the Court held that 18 U.S.C. § 924(c)’s residual clause was
unconstitutionally vague. Id. at 2336. The Supreme Court never took a case
to expressly decide whether Dimaya or Davis were retroactive to cases on
collateral review.
B.
Now, Vargas-Soto’s procedural history. Vargas-Soto has a long rap
sheet, starting long before James, Sykes, and Johnson. In 2001, he pleaded
guilty to driving while intoxicated (“DWI”). In 2003, he pleaded guilty to
manslaughter, intoxicated assault, and evading arrest, among other offenses.
In 2007, he pleaded guilty to unlawful possession of a controlled substance
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(cocaine). In 2008, he pleaded guilty to illegal reentry after removal. In late
2009, the United States Government removed Vargas-Soto. But he
immediately returned and committed another crime: In 2010, Vargas-Soto
pleaded guilty to another DWI.
This finally brings us to his current term of imprisonment. In 2011, the
Government charged Vargas-Soto with illegal reentry after removal in
violation of 8 U.S.C. § 1326(a).1 He pleaded guilty. The Government
contended that Vargas-Soto faced a maximum of 20 years because he
qualified for the sentencing enhancement in § 1326(b)(2) by previously
committing an “aggravated felony” under the residual clause’s definition of
a “crime of violence.”
On October 15, 2011, the district court agreed and sentenced Vargas-
Soto to 180 months. Vargas-Soto timely appealed. He challenged the district
court’s conclusion that his prior conviction for manslaughter qualified as a
“crime of violence” (and thus an “aggravated felony”); he did not challenge
the residual clause for vagueness. Applying plain-error review, we affirmed
the district court’s judgment. United States v. Vargas-Soto, 700 F.3d 180 (5th
Cir. 2012).
1
Under the pre-1996 INA, proceedings brought against aliens attempting to enter
the country were called “exclusion proceedings,” and proceedings brought against aliens
already present in the United States were called “deportation proceedings.” In 1996,
Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered
sections of Title 8 of the U.S. Code). After IIRIRA, both kinds of proceedings are simply
called “removal proceedings.” See IIRIRA § 309(d)(2) (“[A]ny reference in law to an
order of removal shall be deemed to include a reference to an order of exclusion and
deportation or an order of deportation.”); see also Ali v. Barr, 951 F.3d 275, 277 n.1 (5th Cir.
2020) (discussing the change in nomenclature).
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Vargas-Soto then petitioned the Supreme Court for a writ of
certiorari. On February 25, 2013, the Court denied it. That made Vargas-
Soto’s conviction final.
Between 2013 and 2018, Vargas-Soto filed (or sought authorization to
file) numerous motions for collateral review, including at least one § 2255
motion. None succeeded. And only one prior filing is relevant here. On June
27, 2016, Vargas-Soto sought authorization to file a successive § 2255 motion
based on the Supreme Court’s decisions in Johnson (2015) and Welch (2016).
We denied that request because then-binding Fifth Circuit precedent
foreclosed Vargas-Soto’s vagueness challenge to the INA’s residual clause.
In 2018, the Supreme Court decided Dimaya. Vargas-Soto quickly
moved for authorization to file a successive § 2255 motion. This time we
granted his request. Vargas-Soto then filed the instant § 2255 motion on
August 15, 2019.
The district court denied Vargas-Soto’s § 2255 motion and his request
for a certificate of appealability (“COA”). The court acknowledged that the
sentencing judge relied on the now-unconstitutional residual clause, but the
court still determined that § 16(a)’s definition of “crime of violence” (i.e.,
the “elements clause”) justified Vargas-Soto’s sentence. According to the
court, Vargas-Soto’s manslaughter conviction met the elements clause
because the offense had a “use of force” element, even though the
manslaughter offense required only a mens rea of recklessness. The court also
denied a COA because Vargas-Soto failed to show that “reasonable jurists
would question” the ruling.
Soon after, Vargas-Soto sought a COA from us. Without explanation,
a panel of our court granted that certificate. After the initial COA grant, the
Supreme Court decided Borden v. United States, 141 S. Ct. 1817 (2021).
There, the Court addressed the proper interpretation of ACCA’s elements
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clause, which has materially identical language to the INA’s elements clause,
and held that a criminal offense does not qualify “if it requires only a mens rea
of recklessness.” Id. at 1821–22 (plurality op.); see also United States v. Gomez
Gomez, 23 F.4th 575 (5th Cir. 2022) (per curiam) (applying Borden to the
INA’s elements clause). Thereafter, a member of this court amended the
COA to state:
A certificate of appealability is granted on these two issues:
1. Was Mr. Vargas’s sentence enhanced under the
unconstitutional residual clause found in 18 U.S.C.
§ 16(b)?
2. Is Mr. Vargas entitled to collateral relief under 28
U.S.C. § 2255?2
II.
We begin with two jurisdictional questions. We first hold (A) Vargas-
Soto’s § 2255 motion is not barred by AEDPA’s res judicata provision. Then
we hold (B) Vargas-Soto’s motion was properly authorized under
§ 2255(h)(2). We therefore have jurisdiction.
2
It’s not clear that the amended COA is valid. See United States v. Castro, 30 F.4th
240, 246 (5th Cir. 2022) (holding “that our court can raise COA defects sua sponte—just
as it can raise numerous other defects in postconviction proceedings”). Under 28 U.S.C.
§ 2253(c)(2), we “may” grant a COA “only if the applicant has made a substantial showing
of the denial of a constitutional right.” The COA then must “indicate which specific issue
or issues satisfy the showing required by paragraph (2).” Id. § 2253(c)(3) (emphasis added).
It’s not clear that either of the two issues are “specific” enough to make “a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2), (3) (emphases added).
Because we conclude that Vargas-Soto procedurally defaulted his claim, we need not
address this non-jurisdictional issue. See Castro, 30 F.4th at 247. But we hasten to
underscore that further care is needed when proposing, drafting, and granting COAs.
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A.
AEDPA has a strict res judicata provision. It bars—with no
exceptions—any claim “that was presented in a prior application.” 28
U.S.C. § 2244(b)(1). The Supreme Court has held that this bar is
jurisdictional. See Panetti v. Quarterman, 551 U.S. 930, 942 (2007).
And this bar applies to § 2255 motions. Under § 2255(h), a movant
must get authorization to file “[a] second or successive motion . . . as provided
in section 2244 by a panel of the appropriate court of appeals.” (Emphasis
added.) We’ve held that “this cross-reference incorporates § 2244(b)(1)’s
strict relitigation bar into § 2255(h)’s scheme.” In re Bourgeois, 902 F.3d 446,
447 (5th Cir. 2018); cf. Avery v. United States, 140 S. Ct. 1080, 1080 (2020)
(Kavanaugh, J., statement respecting the denial of certiorari) (noting that the
Second, Third, Seventh, Eighth, and Eleventh Circuits agree but that the
Sixth Circuit recently disagreed). Thus, we must “dismiss[]” a “claim
presented” in a “second” motion “that was presented in a prior” motion.
28 U.S.C. § 2244(b)(2).
To see why Vargas-Soto’s claim is nevertheless not barred, consider
what kind of claim Vargas-Soto asserts. He contends that his motion presents
a “Dimaya claim.” But we’ve recently held that there are no separate claims
for Johnson, Dimaya, and Davis; rather, there’s just one claim based on the
same void-for-vagueness ground (hereinafter, “void-for-vagueness claim” or
“vagueness claim”). See United States v. Castro, 30 F.4th 240, 247 (5th Cir.
2022) (concluding that a Johnson claim is the same as a Davis claim because
they are “based on the same ground (void-for-vagueness)”). So Vargas-Soto
presents a void-for-vagueness claim.
Vargas-Soto hasn’t presented this claim in a motion before. The only
other time he presented a void-for-vagueness claim was in a request for
authorization to file a successive § 2255 motion shortly after Johnson and
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Welch. But AEDPA clearly distinguishes a request for authorization to file a
motion for relief from the motion itself. Compare, e.g., 28 U.S.C.
§ 2244(b)(3)(A) (“Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to
consider the application.”), with id. § 2244(b)(2) (barring a claim that’s
presented in a second filed “application”); see also Beras v. Johnson, 978 F.3d
246, 252 (5th Cir. 2020) (explaining that while state prisoners file
“applications,” federal prisoners file “motions”). Here, we denied Vargas-
Soto’s request for authorization to file his motion. That means he never
actually filed the underlying motion. And it also means that AEDPA’s
absolute bar on previously presented claims is inapplicable.
B.
Even for claims that have not been made in a prior motion, AEDPA
eliminates federal jurisdiction over second-or-successive motions, unless
they are first authorized by the court of appeals to “meet the strict procedural
requirements” of 28 U.S.C. § 2255(h). See United States v. Wiese, 896 F.3d
720, 723–24 (5th Cir. 2018). Pursuant to those strict procedural
requirements, we must make certain conclusions before authorizing a
second-or-successive motion. As relevant here, § 2255(h)(2) requires us to
conclude that Vargas-Soto’s underlying claim relies on “[1] a new rule of
constitutional law, [2] made retroactive to cases on collateral review by the
Supreme Court, that [3] was previously unavailable.” We consider each
requirement in turn.
1.
Vargas-Soto first must show that Dimaya announced a new rule of
constitutional law. He does.
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“A rule is new unless it was dictated by precedent existing at the time
the defendant’s conviction became final.” Edwards v. Vannoy, 141 S. Ct.
1547, 1555 (2021) (quotation omitted). “In other words, a rule is new unless,
at the time the conviction became final, the rule was already apparent to all
reasonable jurists.” Ibid. (quotation omitted).
Dimaya was not dictated by precedent when Vargas-Soto’s conviction
became final. After Johnson, our en banc court concluded that the INA’s
residual clause was not unconstitutionally vague. See United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc). Dimaya abrogated
this decision. And it did so over a four-justice dissent. See 138 S. Ct. at 1234–
41 (Roberts, C.J., dissenting); see also id. at 1242–59 (Thomas, J., dissenting).
Therefore, we conclude that the rule adopted in Dimaya was open to
reasonable debate and not “dictated by” Johnson.
Moreover, Supreme Court precedent instructs us to focus on when
“the defendant’s conviction became final” to determine whether a rule is
new. Edwards, 141 S. Ct. at 1555; see also, e.g., Lambrix v. Singletary, 520 U.S.
518, 527–28 (1997). Vargas-Soto’s conviction became final in 2013. At that
point, neither Johnson nor Dimaya had been decided. If Dimaya wasn’t
dictated by precedent after Johnson, it certainly wasn’t when Vargas-Soto’s
conviction became final. Cf. Welch, 578 U.S. at 129 (“It is undisputed that
Johnson announced a new rule.”). In short, Dimaya announced a new rule of
constitutional law.
2.
Vargas-Soto next must show that the Supreme Court has made
Dimaya retroactive to cases (like his) on collateral review. This time Vargas-
Soto technically cannot make that showing, but precedent requires us to
agree with him anyway.
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In Tyler v. Cain, 533 U.S. 656 (2001), the Supreme Court explained
two ways that it can make a new rule of constitutional law retroactive under
§ 2255(h)(2).3 First, the Supreme Court itself can expressly hold that a new
rule is retroactive on collateral review. Id. at 662–64. Or second, the Supreme
Court’s holdings in “[m]ultiple cases can render a new rule retroactive” but
“only if the holdings in those cases necessarily dictate retroactivity of the new
rule.” Id. at 666. We cannot infer that the Supreme Court has made
something retroactive “when it merely establishes principles of retroactivity
and leaves the application of those principles to lower courts.” Id. at 663.
The Supreme Court has not expressly made Dimaya retroactive. As
we previously held: “Dimaya did not address whether its holding might apply
retroactively on collateral review.” Pisciotta v. Harmon, 748 F. App’x 634,
635 (5th Cir. 2019) (per curiam). We’ve reached the same conclusion in
considering whether the Court made Davis retroactive, and for retroactivity
under § 2255(h)(2), “[t]here is no principled distinction between Dimaya
and Davis.” In re Hall, 979 F.3d 339, 346 (5th Cir. 2020).
Thus, Dimaya can be retroactive only if the holdings of multiple
Supreme Court cases “necessarily dictate retroactivity.” Tyler, 533 U.S. at
666. And to show that, Vargas-Soto must rely on Schriro, Johnson, Welch, and
Dimaya. Schriro held that new substantive rules generally apply retroactively.
Johnson held that the term “violent felony” in ACCA was void. Welch held
that Johnson declared a new rule of constitutional law that is retroactive
because it changed the substantive reach of the relevant statute. Dimaya
extended the right initially recognized in Johnson and held that the term
“crime of violence” in the INA was unconstitutionally vague, changing its
3
In Tyler, the Supreme Court addressed a state prisoner’s § 2244(b)(2)(A)
application. But the retroactivity language in that provision is materially identical to that in
§ 2255(h)(2), which applies to federal prisoners.
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substantive reach. The combined holdings of Schriro, Johnson, Welch, and
Dimaya thus “necessarily dictate retroactivity.” Tyler, 533 U.S. at 666; but
cf. Hall, 979 F.3d at 347 (“A reasonable jurist could easily read Welch and
conclude that Davis’s retroactivity logically follows. But that is different from
saying that Welch necessarily dictates that outcome.”).
That’s obviously quite a fruit salad of precedent. And a lot hinges on
whether we’re correctly inferring the Supreme Court’s meaning from four
different cases spanning multiple decades. Cf. In re Harris, 988 F.3d 239, 241
(5th Cir. 2021) (Oldham, J., concurring) (“If it were up to me, I’d wait until
the Supreme Court itself made Davis retroactive, as § 2255(h)(2) requires.
But at this point, we have numerous Fifth Circuit panels that have authorized
successive motions under § 2255(h)(2) to raise Davis claims.”). But under
our precedent, we’re constrained to hold that the Supreme Court has made
Dimaya retroactive.
3.
Vargas-Soto last must show that Dimaya’s new and retroactive rule
was previously unavailable. Again, he does.
“To satisfy this requirement, the new constitutional rule [Vargas-
Soto] puts forth must not have been available to him when he brought his last
federal proceeding—including an authorization motion—challenging his
conviction.” In re Thomas, 988 F.3d 783, 790 (4th Cir. 2021). Vargas-Soto’s
last proceeding before the instant § 2255 motion was a request for
authorization to file a successive § 2255 motion after Johnson and Welch but
before Dimaya. Because Dimaya announced a new rule even after Johnson,
the claim was previously unavailable to Vargas-Soto.
Vargas-Soto’s motion thus passes § 2255(h)(2). We have jurisdiction.
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III.
Our first merits question is whether Vargas-Soto’s § 2255 motion is
time-barred. We can raise this question sua sponte. See Day v. McDonough, 547
U.S. 198, 209 (2006).
Section 2255(f ) says a one-year limitations period “applies to ‘all
motions’ under § 2255, initial motions as well as second or successive ones.”
Dodd v. United States, 545 U.S. 353, 359 (2005). The limitations period
“run[s] from the latest of” four dates. 28 U.S.C. § 2255(f ). Here, the
relevant trigger for starting the limitations period is “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Id. § 2255(f )(3). We call this “the
(f )(3) trigger” and ask when the Court “initially recognized” “the right
asserted” in Vargas-Soto’s § 2255 motion.
We hold (A) the Supreme Court initially recognized that right in
Johnson. Then we explain (B) why Dimaya didn’t reset the (f )(3) trigger. We
last hold (C) Vargas-Soto’s § 2255 motion is nonetheless timely.
A.
We start with “the right asserted” in Vargas-Soto’s § 2255 motion.
This inquiry immediately presents a level-of-generality problem. At a high
level of generality, the right asserted by Vargas-Soto is the right to fair notice
of the law. The initial recognition of that right dates back to before the
Founding. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.
Chi. L. Rev. 1175, 1179 (1989) (discussing Nero’s practice of posting laws
high on pillars so that they would be harder to read and easier to break). At a
much more granular level, “the right asserted” by Vargas-Soto’s motion was
recognized in Dimaya. That decision, after all, is where the Court held
unconstitutional the INA provision under which Vargas-Soto was sentenced.
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So the initial recognition of his asserted right—and hence the beginning of
his limitations period—is somewhere between 50 A.D. (Nero) and 2018
(Dimaya).
To pick the appropriate level of generality, we return to the statutory
text. The (f )(3) trigger restarts a prisoner’s limitations period on “the date
on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f )(3). This text “unequivocally identifies one, and only one, date [for
the (f )(3) trigger]: ‘the date on which the right asserted was initially
recognized by the Supreme Court.’” Dodd, 545 U.S. at 357 (quoting the
(f )(3) trigger). Then the text specifies two conditions, both of which must
obtain to pull the (f )(3) trigger: (a) the Court must’ve newly recognized the
asserted right, and (b) the Court must’ve made it retroactively applicable to
cases on collateral review.
The upshot of this text, the Court has acknowledged, can be “harsh”
and “difficult” for prisoners. Id. at 359. That’s because the (f )(3) trigger can
be pulled—and the one-year clock can be running—but the prisoner won’t
know it until both the (a) and (b) conditions are met. Think about it like a
leaky roof. The roof can start leaking on Day X. But the homeowner won’t
actually know it until some later Day Y after two conditions are met—when
(a) the homeowner goes into the attic and (b) finds a puddle of water. This
can generate harsh and difficult results for the homeowner because the leak
started on Day X, no matter that the homeowner discovered it on some later
Day Y.
The (f )(3) trigger works exactly the same way. The Court initially
recognizes a right on Day X. That immediately starts a one-year limitations
period for all prisoners who want the benefit of the (f )(3) trigger, even if
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(a) the Court has not yet clarified that the right is a newly recognized one,
and (b) the Court has not yet made it retroactive. The (f )(3) clock is running
all the same. See Dodd, 545 U.S. at 359. Perhaps Day Y—that is, a
hypothetical later date on which the Court clarifies that the right is (a) newly
recognized and (b) retroactive—rolls around 364 days after Day X. Or
perhaps Day Y is 700 days after Day X. Again, it doesn’t matter. Day X is and
always will be the operative date for when the (f )(3) trigger starts a new
limitations period.
So, how does all this apply to Vargas-Soto? He asserts the right not to
be sentenced on the basis of an unconstitutionally vague residual clause. The
Court initially recognized that right in Johnson, on June 26, 2015. That is Day
X and hence the (f )(3) trigger for Vargas-Soto. It’s true that no one—
including Vargas-Soto—could’ve known that the (f )(3) trigger had been
pulled and that the limitations period was running on Day X. Vargas-Soto
could not have known that until the much later Day Y—when the Court
specified (a) that it newly recognized the right in Johnson and (b) made it
retroactive to cases on collateral review. The Court did (a) in several cases.
See, e.g., Beckles, 137 S. Ct. at 892 (explaining Johnson recognized that “the
Due Process Clause prohibits 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” (quotation omitted)). And as discussed
above in Part II.B, the Court did not make the Johnson right retroactive to
prisoners like Vargas-Soto until it decided Dimaya on April 17, 2018. Thus,
Day Y (the day when both conditions were met) was 1,026 days after Day X
(the day the Court initially recognized the asserted right). But that does
nothing to change the operative date for the (f )(3) trigger. The Court pulled
it—and hence started Vargas-Soto’s limitations period—when it decided
Johnson on Day X: June 26, 2015.
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B.
It’s wrong to suggest that Dimaya reset the (f )(3) trigger. As explained
above, Dimaya was the last case in the string of precedents that made Johnson
applicable to Vargas-Soto’s sentence. But the (f )(3) trigger is not pulled by
the last case in the string; it’s pulled by the first one. That is, (f )(3) starts the
limitations period when the Supreme Court initially recognizes the right—as
it did in Johnson. To hold otherwise would squarely contravene the Court’s
opinion in Dodd.
Neither United States v. Morgan, 845 F.3d 664 (5th Cir. 2017), nor
United States v. London, 937 F.3d 502 (5th Cir. 2019), is to the contrary. Both
opinions have stray sentences that, wrenched from context, might be read to
conflate the (f )(3) trigger with the “new rule” requirement in § 2255(h)(2).
But it’s never a fair reading of precedent to take such sentences out of
context. See Brown v. Davenport, 142 S. Ct. 1510, 1528 (2022) (“This Court
has long stressed that the language of an opinion is not always to be parsed as
though we were dealing with the language of a statute.” (quotation omitted)).
And that’s especially so where the out-of-context reading would directly
contravene the Supreme Court’s binding precedent in Dodd. The better
reading of our cases is that, in accordance with Dodd (and the plain and
ordinary meaning of § 2255), the (f )(3) trigger starts the limitations period
when the Court initially recognizes a right.
Take Morgan. There, the movant argued that the Supreme Court
initially recognized a right in Descamps v. United States, 570 U.S. 254 (2013).
Rather than analyze the text of the (f )(3) trigger, we focused on whether
Descamps established a “new rule” under § 2255(h)(2). We held it did not
and therefore Morgan’s claim was untimely. See Morgan, 845 F.3d at 668.
That makes perfect sense because a “new rule” is always a necessary
but insufficient condition for the (f )(3) trigger. That is, the (f )(3) trigger
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requires three things—an initially recognized right (on Day X) that satisfies
conditions (a) and (b). The second condition (b), in turn, hinges on the
retroactivity inquiry for “new rules.” Thus, if (b) is not met, then the (f )(3)
trigger is not pulled, and no new limitations period applies. Morgan therefore
held that the prisoner could not get the benefit of the (f )(3) trigger because
he could not satisfy one of its prerequisites—namely, the (b) condition.
Likewise in London. There, the prisoner wanted the benefit of the
(f )(3) trigger based on the right initially recognized in Johnson. The problem,
however, was that Johnson initially recognized the constitutional right to
challenge a vague sentencing statute, and London wanted to extend that
holding to the Sentencing Guidelines. London, 937 F.3d at 507–09. We held
that extending Johnson to the Guidelines would require a new rule that the
Supreme Court had not yet made, much less made retroactive to cases on
collateral review. See id. at 507. Thus, as in Morgan, the (b) condition for the
(f )(3) trigger was not met, and hence the prisoner could not get the benefit of
the (f )(3) limitations period.
Neither Morgan nor London nor any other case in this circuit even
suggests that a new rule (like Dimaya) is sufficient standing alone to trigger a
new limitations period under (f )(3). And that’s for good reason. If a new rule
were sufficient to trigger a one-year limitations period under (f )(3), then
Congress would have written (f )(3) the way it wrote (h)(2). See Wis. Cent.
Ltd. v. United States, 138 S. Ct. 2067, 2071 (2018) (“We usually presume
differences in language like this convey differences in meaning.” (quotation
omitted)); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012) (“[A] material
variation in terms suggests a variation in meaning.”); see also ibid. (“And
likewise, where the document has used one term in one place, and a
materially different term in another, the presumption is that the different
term denotes a different idea.”). The plain and ordinary meaning of the (f )(3)
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trigger requires more than a new rule, so there’s no basis in law or logic for
an assertion that a new rule like Dimaya is sufficient to trigger a new (f )(3)
limitations period.
C.
Because Dimaya does not trigger a new (f )(3) limitations period,
Vargas-Soto is stuck with the one triggered by Johnson. The Court decided
Johnson on June 26, 2015. Vargas-Soto requested authorization to file the
instant § 2255 motion on August 15, 2018—more than three years after Day
X (i.e., the day the Supreme Court initially recognized the asserted right). So
you might think that he’s too late.
But he’s not. That’s because Vargas-Soto timely filed a request for
authorization within one year of Johnson. Specifically, he requested
authorization under § 2255(h)(2) on the very last day he had to satisfy the
limitations period.4 In that request for authorization, Vargas-Soto argued that
his sentence should be vacated because the INA’s residual clause was
unconstitutionally vague—the same argument he obviously makes now. So
Vargas-Soto did his part and satisfied AEDPA’s limitations period.
We, on the other hand, fell short. On September 2, 2016, we denied
Vargas-Soto’s timely request for authorization. We apparently thought that
Johnson and Welch provided no help to a prisoner, like Vargas-Soto, who was
sentenced under the INA. But Dimaya makes clear that our 2016 denial was
wrong. We therefore hold that Vargas-Soto timely filed—not because he filed
4
A prisoner satisfies the limitations period when he files, in accordance with the
prison mailbox rule, his request for authorization to file a second-or-successive § 2255
motion within one year of the (f )(3) trigger. See In re Williams, 759 F.3d 66, 68–69 (D.C.
Cir. 2014) (Sentelle, J.). The limitations period under (f )(3) expired on June 26, 2016, but
that was a Sunday. That gave Vargas-Soto an extra day, through June 27, under Federal
Rule of Civil Procedure 6(a)(2)(C). Vargas-Soto filed his request on June 27.
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within one year of Dimaya, but rather because he filed within one year of
Johnson.
IV.
Next, we turn to procedural default. All agree that Vargas-Soto
procedurally defaulted his void-for-vagueness claim. The only question is
whether he can excuse that default. To do so, Vargas-Soto must show either
(A) cause and prejudice or (B) actual innocence. Gonzales v. Davis, 924 F.3d
236, 242 (5th Cir. 2019) (per curiam); see also United States v. Frady, 456 U.S.
152, 167–68 (1982) (procedural default applicable to § 2255 motions); United
States v. Willis, 273 F.3d 592, 596 (5th Cir. 2001) (same). We hold that
Vargas-Soto can’t show either requirement.
A.
Start with cause. To establish it, the movant “must show that some
objective factor external to the defense impeded counsel’s efforts to comply
with the [relevant] procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2065
(2017) (quotation omitted). “A factor is external to the defense if it cannot
fairly be attributed to” the movant. Ibid. (quotation omitted). The Supreme
Court has not provided “an exhaustive catalog of such objective
impediments to compliance with a procedural rule,” but “a showing that the
factual or legal basis for a claim was not reasonably available to counsel or that
some interference by officials, made compliance impracticable, would
constitute cause.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (quotation
omitted). Vargas-Soto contends there was a legal impediment that prevented
him from timely raising his vagueness claim on direct review—namely, that
the Supreme Court had not yet held that his vagueness claim was a winner.
We first detail (1) when a movant may rely on a legal impediment to
show cause. We then explain (2) nothing impeded Vargas-Soto from raising
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his vagueness claim before Johnson or Dimaya. We last reject (3) Vargas-
Soto’s remaining counterarguments.
1.
The possibility that a legal impediment may qualify as cause originated
in the pre-AEDPA case of Reed v. Ross, 468 U.S. 1 (1984). There, the
Supreme Court “h[e]ld that where a constitutional claim is so novel that its
legal basis is not reasonably available to counsel, a defendant has cause.” Id.
at 16.
Later Supreme Court decisions have substantially limited that
holding. Take Smith v. Murray, 477 U.S. 527 (1986). In that case, the Court
emphasized that “perceived futility alone cannot constitute” a legal
impediment. Id. at 535 (quotation omitted). That is, a prisoner can’t fail to
raise an argument at time X and then say at later time Y, “my argument
would have been futile at time X, so I have cause for the default.” Why?
Because, the Supreme Court explained, if the prisoner had raised the
argument at time X, “a state [or federal] court may [have] decide[d], upon
reflection, that the contention [wa]s valid.” Ibid. (quotation omitted). And
it’s that “very prospect” of a change in the law “that undergirds the rule”
requiring prisoners to raise their claims even when they appear futile under
then-current law. Ibid. The Court also limited Reed to establish merely this:
“[T]he question is not whether subsequent legal developments have made
counsel’s task easier, but whether at the time of the default the claim was
‘available’ at all.” Id. at 537.
Also take Bousley v. United States, 523 U.S. 614 (1998). There, the
Court reaffirmed that “where the basis of a claim is available, and other
defense counsel have perceived and litigated that claim,” the claim is not
novel. Id. at 623 n.2 (quotation omitted). It similarly reaffirmed that “futility
cannot constitute cause.” Id. at 623 (quotation omitted).
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Taken together, Supreme Court precedent holds that a prisoner
cannot invoke “novelty” as cause for a default where he was legally able to
make the putatively novel argument. We therefore agree with our sister
circuits that a claim is not “novel” where a prisoner could (or where other
prisoners did in fact) raise it at time X. See Anderson v. Kelley, 938 F.3d 949,
962 (8th Cir. 2019) (“[I]f the tools were available for a petitioner to construct
the legal argument at the time of the state appeals process, then the claim
cannot be said to be so novel as to constitute cause for failing to raise it
earlier.” (quotation omitted)); Gatewood v. United States, 979 F.3d 391, 395
(6th Cir. 2020) (“If another litigant pressed the claim, the tools required to
conceive it must have existed.”); Granda v. United States, 990 F.3d 1272,
1287 (11th Cir. 2021) (“[E]ven if others have not been raising a claim, the
claim may still be unnovel if a review of the historical roots and development
of the general issue involved indicate that petitioners did not lack the tools to
construct their constitutional claim.” (quotation omitted)).
2.
Vargas-Soto contends that he had cause for not raising his vagueness
claim on direct appeal: He did not then have the benefit of Johnson and
Dimaya. Those decisions were so pathbreaking, Vargas-Soto contends, that
he could not reasonably have anticipated them and hence could not have
preserved his vagueness claim without them. He might be right that Johnson
and Dimaya were bolts from the blue. But Vargas-Soto is still wrong that their
absence constituted cause. That’s because, even without them, Vargas-Soto
undisputedly had the tools for timely raising his vagueness claim. That’s for
three reasons.
First, the Supreme Court has recognized that criminal statutes are
subject to vagueness challenges since at least 1954. See United States v.
Harriss, 347 U.S. 612, 617 (1954). And the Supreme Court has recognized
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vagueness challenges to sentencing provisions since at least 1979. See United
States v. Batchelder, 442 U.S. 114, 123 (1979) (“So too, vague sentencing
provisions may pose constitutional questions if they do not state with
sufficient clarity the consequences of violating a given criminal statute.”).
These decisions show that Vargas-Soto had the tools he needed to raise a
vagueness challenge between 2011 (when he was convicted) and 2013 (when
his conviction became final on direct appeal).
Second, other defendants were raising such claims before Vargas-Soto
ever set foot in federal court. We’ve previously held that other defendants’
claims suffice to show that a claim was not “novel.” See Bates v. Blackburn,
805 F.2d 569, 576–77 (5th Cir. 1986). The fact that the Federal Public
Defender for the Western District of Texas had squarely attacked the INA’s
residual clause as unconstitutionally vague three years before Vargas-Soto’s
sentencing further establishes that this claim was not novel. See United States
v. Nevarez-Puentes, 278 F. App’x 429, 430 (5th Cir. 2008) (per curiam).
Third, other defendants were raising vagueness challenges to other
similarly worded statutes before Vargas-Soto’s sentencing. For example, the
Supreme Court decided James in 2007. There, Justice Scalia argued at length
that ACCA’s materially identical residual clause was unconstitutionally
vague. 550 U.S. at 214–31 (Scalia, J., dissenting). And in June 2011, the Court
decided Sykes, where the majority rejected the argument that the residual
clause was unconstitutionally vague and where Justice Scalia expanded his
void-for-vagueness argument. See 564 U.S. at 15–16 (majority op.); id. at 28–
35 (Scalia, J., dissenting). These decisions provided Vargas-Soto the tools
needed to raise his vagueness claim.
Our sister circuits reinforce this conclusion. They’ve rejected the idea
that prisoners always had cause for defaulting their vagueness claims before
Johnson and Davis. See, e.g., Granda, 990 F.3d at 1285–88 (Davis); Herron v.
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United States, No. 21-10212, 2022 WL 987423, at *2–3 (11th Cir. Apr. 1,
2022) (per curiam) (Davis); Gatewood, 979 F.3d at 394–98 (Johnson). We see
no reason to treat Vargas-Soto’s claim differently.
3.
The crux of Vargas-Soto’s counterargument is that we must rigidly
apply Reed v. Ross. But that decision does nothing to help Vargas-Soto in light
of (a) AEDPA, (b) precedent, and (c) practice.
a.
Start with AEDPA. That landmark statute tells us when a prisoner can
invoke a novel precedent to seek postconviction relief. It says that a prisoner
can file a second or successive request for relief when he can point to “a new
rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C.
§ 2255(h)(2). That statutory text, in turn, evokes the new-rule-retroactivity
paradigm of Teague v. Lane, 489 U.S. 288 (1989). Generally, Supreme Court
decisions are not retroactive under Teague and § 2255(h)(2). See, e.g.,
Edwards, 141 S. Ct. at 1555 (“[T]he Court has repeatedly stated that new
rules of criminal procedure ordinarily do not apply retroactively on federal
collateral review.”). Thus, under AEDPA and Teague, new or novel legal
rules generally do not help prisoners file new requests for postconviction
relief.
Reed v. Ross predates AEDPA and Teague and says the opposite. That
decision posits three circumstances in which a postconviction litigant might
invoke a “novel” Supreme Court decision: the Supreme Court explicitly
overrules one of its precedents; the Supreme Court overturns a longstanding
and widespread practice that enjoyed widespread approval in the inferior
courts; and the Supreme Court disapproves a practice that it arguably
sanctioned in prior cases. 468 U.S. at 17–18. All sorts of Supreme Court
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decisions do these things. In fact, it’s difficult to imagine how a prisoner
could win a case in the Supreme Court and not satisfy at least one of the Reed
categories for “novelty.” Thus, under Vargas-Soto’s expansive reading of
Reed v. Ross, new or novel legal rules generally do apply retroactively and help
prisoners file new requests for postconviction relief. See id. at 17 (framing its
holding in terms of “retroactiv[ity]”). That is tough to square with Teague
and Congress’s post-Reed decision in AEDPA to limit the retroactive
application of novel legal rules.
Vargas-Soto’s understanding of Reed v. Ross also would generate
highly anomalous results for state prisoners subject to AEDPA. (Recall that
Ross himself was a state prisoner, and Reed’s holding purports to apply
equally to both state and federal prisoners who default their claims.) After
AEDPA, the state prisoner who raises a claim and loses it will confront the
formidable task of overcoming the relitigation bar, 28 U.S.C. § 2254(d),
whereas the state prisoner who defaults the claim can later invoke Reed to
capitalize on a third prisoner’s success in litigating (and winning) it. That
makes the sandbagging state prisoner substantially better off than the diligent
one. But see Lucio v. Lumpkin, 987 F.3d 451, 474–76 (5th Cir. 2021) (en banc)
(plurality op.) (emphasizing AEDPA’s anti-sandbagging principle). And it
contravenes Congress’s judgment that prisoners cannot attack state court
decisions using new rules of constitutional law that the state courts could not
have foreseen. See, e.g., Greene v. Fisher, 565 U.S. 34, 38–41 (2011) (holding
later-decided Supreme Court decisions cannot constitute “clearly
established law” under § 2254(d), and that state court decisions instead must
be reviewed only under precedent that existed at the time).
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AEDPA—no less than other rules governing postconviction
litigation5—thus reflects the modern rule that new or novel legal decisions
generally cannot be used to win postconviction relief. As the Supreme Court
recently reminded us, the whole point of AEDPA is to “make[] winning
habeas relief more difficult.” Davenport, 142 S. Ct. at 1526; see also Shinn v.
Ramirez, --- S. Ct. ---, --- (2022) (“[G]iven our frequent recognition that
AEDPA limited rather than expanded the availability of habeas relief[,] it is
implausible that, without saying so, Congress intended this Court to
liberalize the availability of habeas relief generally, or access to federal
factfinding specifically.” (quotation omitted)).6 Vargas-Soto therefore
cannot invoke Reed to make the task easier.
5
Consider the well-settled rule that the cause-and-prejudice standard “imposes a
significantly higher hurdle than the plain error standard that governs direct appeals.”
United States v. Reece, 938 F.3d 630, 634 n.3 (5th Cir. 2019) (quotation omitted); see also
Brannigan v. United States, 249 F.3d 584, 587 (7th Cir. 2001) (explaining that establishing
cause and prejudice “is more difficult than establishing ‘plain error’” (quoting Frady, 456
U.S. at 164)). And futility is not an excuse in the plain-error context. See Greer v. United
States, 141 S. Ct. 2090, 2099 (2021) (A “futility exception lacks any support in the text of
the Federal Rules of Criminal Procedure or in [Supreme Court] precedents. . . . Rule 51’s
focus on a party’s opportunity to object—rather than a party’s likelihood of prevailing on the
objection—also undercuts Gary’s proposed futility exception.”). Thus, Vargas-Soto
would have us hold that futility can establish cause for a default (the purportedly higher
standard) but cannot establish plain error (the purportedly lower standard). That’s
obviously backwards.
6
Brown v. Davenport and Shinn v. Ramirez each involved a state prisoner
collaterally attacking his sentence in a federal habeas petition under the strictures of 28
U.S.C. § 2254, as amended by AEDPA. Vargas-Soto is obviously a federal prisoner, and his
§ 2255 motion is not strictly speaking a habeas petition. See United States v. Cardenas, 13
F.4th 380, 384 n.* (5th Cir. 2021) (“Section 2255 is a statutory substitute for habeas
corpus.” (citing United States v. Hayman, 342 U.S. 205, 219 (1952))). We nonetheless hold
that AEDPA amended § 2255, no less than it amended § 2254, to make winning
postconviction relief more difficult. There is nothing remarkable about that. See Frady, 456
U.S. at 164–68 (applying procedural default in the § 2255 context and concluding that there
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b.
Next, precedent. The first two Reed categories—the ones Vargas-Soto
relies on—were dicta. See Reed, 468 U.S. at 17 (listing the first two categories
of novelty as (1) a Supreme Court decision that overturns a Supreme Court
precedent and (2) a Supreme Court decision that overturns a widespread
lower-court practice); id. at 18 (“This case is covered by the third
category.”). The Supreme Court has never relied on the first two categories
to find cause and hasn’t found cause based on the third category since Reed.
The first two categories thus have “no binding force.” Wright v. Spaulding,
939 F.3d 695, 701 (6th Cir. 2019) (Thapar, J.); see also Morrow v. Meachum,
917 F.3d 870, 875 (5th Cir. 2019) (“Dictum is not law.”); Bryan A.
Garner, et al., The Law of Judicial Precedent 44 (2016)
(explaining that dictum does not “bind future courts” and is “not law per
se”).
Plus, we must read Reed in light of later Supreme Court precedent.
Bousley and Murray squarely held that futile claims are not novel. These
holdings unraveled Reed’s first two categories because their entire premise is
futility. Bousley also narrowed Reed by replacing the tri-category framework
with a single question of whether the “claim is so novel that its legal basis is
not reasonably available to counsel.” 523 U.S. at 622. So the best
understanding of Reed is the one the Court itself adopted in narrowing it. It is
thus unsurprising that our sister circuits understand Bousley and Murray to
have quashed Reed’s novelty categories. See, e.g., Gatewood, 979 F.3d at 395
(“Subsequent case law, however, has limited the breadth of Reed’s
holding.”); Daniels v. United States, 254 F.3d 1180, 1191 (10th Cir. 2001) (en
is “no basis for affording federal prisoners a preferred status when they seek postconviction
relief”).
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banc) (explaining that the Court later “narrowed the broad Reed ‘novelty’
test in Bousley”); Simpson v. Matesanz, 175 F.3d 200, 212 (1st Cir. 1999)
(questioning whether “the familiar Reed unavailability standard is still good
law” after Bousley).
Contrary to Vargas-Soto’s suggestion, Bousley isn’t cabined to
statutory matters. It was Reed (not Bousley) that cabined itself to the specific
situation before it. See Reed, 468 U.S. at 17 (“Although the question whether
an attorney has a reasonable basis upon which to develop a legal theory may
arise in a variety of contexts, we confine our attention to the specific situation
presented here: one in which this Court has articulated a constitutional
principle that had not been previously recognized but which is held to have
retroactive application.” (quotation omitted)). Plus, Bousley announced its
futility rule as a holding and without qualification, while Reed’s categories
were both dicta and qualified. See United States v. Pollard, 20 F.4th 1252, 1261
(9th Cir. 2021) (Nelson, J., concurring) (“Bousley was decided after Reed, and
Bousley’s futility rule was dispositive rather than dicta. Bousley made no
exception for claims that received consistent negative treatment in the
courts.”).
c.
Last, practice. Defense counsel “routinely raise arguments to
preserve them for further review despite binding authority to the contrary.”
United States v. Scruggs, 714 F.3d 258, 264 (5th Cir. 2013); see also Pollard, 20
F.4th at 1262 (Nelson, J., concurring) (“Competent defense counsel
regularly preserve arguments for future appeal. Defense counsel are trusted
with the great responsibility of using their discretion to bring the best
arguments reasonably available.”). This entire enterprise would be pointless
if futility constituted cause. And it would create a system of litigation
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freeriding, under which prisoners who do not make arguments get a free ride
from those who do.
Almendarez-Torres v. United States, 523 U.S. 224 (1998), illustrates the
point. There, the Court held that a provision that “simply authorizes a court
to increase the sentence for a recidivist” is a “penalty” and not a separate
crime. See id. at 226–27. The consequence is that the Government doesn’t
have to submit to a jury a sentencing enhancement that turns on a
defendant’s prior criminal conviction. See ibid. A couple years later, the
Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). In that
case, the Court held that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. But the Apprendi Court
maintained the significant exception announced in Almendarez-Torres, even
though the majority acknowledged the decision was arguably wrong. As the
Apprendi Court put it:
Even though it is arguable that Almendarez-Torres was
incorrectly decided, and that a logical application of our
reasoning today should apply if the recidivist issue were
contested, Apprendi does not contest the decision’s validity
and we need not revisit it for purposes of our decision today to
treat the case as a narrow exception to the general rule we
recalled at the outset. Given its unique facts, it surely does not
warrant rejection of the otherwise uniform course of decision
during the entire history of our jurisprudence.
Id. at 489–90 (quotation omitted).
Today, Almendarez-Torres is still seriously questioned. Compare
Rangel-Reyes v. United States, 547 U.S. 1200, 1200 (2006) (Thomas, J.,
dissenting from the denial of certiorari) (stating that “it has long been clear
that a majority of this Court now rejects that exception”), with ibid.(statement of Stevens, J.) (explaining that although he “continue[s] to
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believe that Almendarez-Torres . . . was wrongly decided, that is not a
sufficient reason for revisiting the issue”). For this reason, we regularly get
direct appeals seeking to preserve Almendarez-Torres challenges. See, e.g.,
United States v. Garza-De La Cruz, 16 F.4th 1213 (5th Cir. 2021) (per
curiam). “As a result, we routinely issue orders . . . summarily denying a
claim on the ground that it is foreclosed by Almendarez-Torres.” Id. at 1214(concurring op.). And there’s nothing wrong with “preserving one’s rights
just in case,” especially when jurists recognize the potential claim and when
it’s well-established that failure to preserve the claim risks forfeiture of it. Id.
at 1215.
The same was true with vagueness arguments between 2011 and 2013.
The Supreme Court recognized potential vagueness challenges in the 1950s
and even applied those vagueness principles to residual clauses in federal
sentencing statutes in James (2007) and Sykes (2011). Here, as with
Almendarez-Torres, parties should’ve “litigate[d] in anticipation of . . . legal
change.” Garza-De La Cruz, 16 F.4th at 1215 (concurring op.) (quotation
omitted). Vargas-Soto’s contrary understanding of cause would mean that
we should treat prisoners who raise the challenge the same as those that
don’t. We reject that result.
B.
Finally, we turn to actual innocence. We hold (1) Supreme Court
precedent forecloses Vargas-Soto’s attempt to use actual innocence as an
escape route for his procedural default. Then we reject (2) Vargas-Soto’s
reliance on our decision in United States v. Reece, 938 F.3d 630 (5th Cir. 2019).
1.
First, Supreme Court precedent. The Supreme Court has stressed
that “‘actual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley, 523 U.S. at 623; see also Sawyer v. Whitley, 505 U.S.
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333, 339 (1992). In other words, the movant must show, by the required level
of convincingness, that “no reasonable juror would have convicted him” of
the substantive offense. Bousley, 523 U.S. at 623 (quotation omitted).
The Supreme Court’s decisions addressing actual innocence
presuppose that the prisoner has new evidence that did not exist at the time
of conviction and sentencing. See, e.g., Schlup v. Delo, 513 U.S. 298, 316 (1995)
(“Without any new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the merits of a
barred claim.” (emphasis added)); McQuiggin v. Perkins, 569 U.S. 383, 394–
95 (2013) (“The miscarriage of justice exception, we underscore, applies to
a severely confined category: cases in which new evidence shows it is more likely
than not that no reasonable juror would have convicted the petitioner.”
(emphases added) (quotation omitted)).7 And for good reason: If the prisoner
does not present new evidence, then the prisoner either is asking courts to
usurp the jury’s function by considering the same evidence the jury did or is
making purely legal arguments.
Here, Vargas-Soto does not argue factual innocence of the substantive
crime—i.e., illegal reentry under 8 U.S.C. § 1326(a). Instead, he argues that
none of his prior convictions qualify for the sentencing enhancement for an
“aggravated felony” under § 1326(b)(2). That argument is exclusively legal.
7
See also, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998) (“To be credible, a
claim of actual innocence must be based on reliable evidence not presented at trial. . . . If
the petitioner asserts his actual innocence of the underlying crime, he must show it is more
likely than not that no reasonable juror would have convicted him in light of the new evidence
presented in his habeas petition.” (emphasis added) (quotation omitted)); House v. Bell, 547
U.S. 518, 538 (2006) (“A petitioner’s burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no reasonable juror would find him guilty
beyond a reasonable doubt—or, to remove the double negative, that more likely than not
any reasonable juror would have reasonable doubt.” (emphasis added)).
29
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No. 20-10705
And that’s not good enough. To conclude otherwise “would mean that
actual innocence amounts to little more than what is already required to show
prejudice.” Sawyer, 505 U.S. at 345 (quotation omitted). Vargas-Soto’s
failure to present new evidence confirms that he isn’t asserting factual
innocence but rather legal innocence.
2.
Vargas-Soto’s main counterargument hinges not on Supreme Court
precedent but rather on ours. Specifically, he says he can show actual
innocence under Reece. But there are at least two problems with that.
First, Reece is best understood as merely accepting the Government’s
concession that the movant there was actually innocent, rather than deciding
the actual-innocence issue. See 938 F.3d at 634 n.3 (“The government’s brief
recognizes as much.”). In other words, Reece merely signaled what the proper
result should be based on precedent but did not “consider and consciously
decide” the actual-innocence issue. Wright, 939 F.3d at 704. “It would be at
least imprudent, and maybe improper, to make binding precedent out of a
court’s simple acquiescence in the parties’ concessions and assumptions.”
Ibid. Thus, “[o]ur hands are not tied in a later case just because, in an earlier
one, a party conceded an issue and the panel took that concession at face
value.” Ibid.
Second, even if Reece decided actual innocence, the offense in Reece
critically differs from the one here. In Reece, the movant was convicted of,
among other things, using and carrying a firearm during a “crime of
violence” under 18 U.S.C. § 924(c)(3). But the Supreme Court later held
that § 924(c)(3)’s residual clause defining “crime of violence” was
unconstitutionally vague. See Davis, 139 S. Ct. at 2336. In a footnote, we
suggested that the movant established actual innocence of the substantive
offense. Reece, 938 F.3d at 634 n.3. Specifically, we suggested that “if Reece’s
30
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No. 20-10705
convictions were based on the definition of [crime of violence] articulated in
§ 924(c)(3)(B), then he would be actually innocent of those charges” because
his conviction required a “predicate” crime of violence. Ibid. (emphasis
added). Put differently, Reece was actually innocent of the substantive
offense charged because his conviction—not the particular length of his
sentence—turned on the determination that he had committed a “crime of
violence” under the void residual clause.
By contrast, Vargas-Soto was convicted of the substantive offense of
illegal reentry as proscribed under 8 U.S.C. § 1326(a), and he does not
challenge that conviction. Instead, he argues that he’s actually innocent of
his enhanced sentence under § 1326(b) for having a prior conviction for an
“aggravated felony.” But § 1326(b) “does not define a separate crime”; it’s
“a penalty provision, which simply authorizes a court to increase the
sentence for a recidivist.” Almendarez-Torres, 523 U.S. at 226. So Vargas-
Soto does not claim factual innocence of his conviction (§ 1326(a)) but makes
a legal argument that he doesn’t qualify for the sentencing enhancement
(§ 1326(b)). That’s at best legal innocence—not factual innocence.
Our sister circuits confirm this conclusion. They’ve similarly
concluded that factual innocence isn’t established when a sentencing
enhancement—rather than the substantive offense—is at issue. See, e.g.,
McKay v. United States, 657 F.3d 1190, 1199 (11th Cir. 2011) (“We thus
decline to extend the actual innocence of sentence exception to claims of legal
innocence of a predicate offense justifying an enhanced sentence.”); United
States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) (“Rather, he makes the
legal argument that this conviction should not have been classified as a
‘violent felony’ under the ACCA. This argument . . . is not cognizable as a
claim of actual innocence. . . . [A]ctual innocence applies in the context of
habitual offender provisions only where the challenge to eligibility stems
from factual innocence of the predicate crimes, and not from the legal
31
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No. 20-10705
classification of the predicate crimes.” (quotation omitted)); Hope v. United
States, 108 F.3d 119, 120 (7th Cir. 1997) (“We conclude that a successive
motion under 28 U.S.C. § 2255 . . . may not be filed on the basis of newly
discovered evidence unless the motion challenges the conviction and not
merely the sentence.”).
* * *
Vargas-Soto failed to preserve his void-for-vagueness claim. So he
procedurally defaulted it. And there’s no persuasive reason to excuse that
default. We therefore find no reversible error in the district court’s judgment.
AFFIRMED.
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W. Eugene Davis, Circuit Judge, dissenting:
I disagree with the majority that Vargas-Soto failed to show “cause”
and “prejudice” that excuse his procedural default. When Vargas-Soto was
sentenced in 2011, and during his direct appeal through 2013, the
constitutional void-for-vagueness claim he now raises was foreclosed by the
Supreme Court in James v. United States, a 2007 decision.1 It was not until
2015 that the Supreme Court in United States v. Johnson overruled James and
decided the constitutional issue favorably to Vargas-Soto.2 Until the Court in
Johnson overruled the contrary holding in James, the constitutional argument
Vargas-Soto raises in his motion to vacate under 28 U.S.C. § 2255 was
“novel.” While James remained effective, Vargas-Soto’s claim was not
“reasonably available.”
Vargas-Soto therefore has cause for his failure to raise the issue in his
underlying proceedings. Because Vargas-Soto has obviously suffered
prejudice,3 I would reach the merits of his claim and grant him relief under
§ 2255.4 Therefore, I respectfully dissent.
1
550 U.S. 192, 210 n.6 (2007).
2
576 U.S. 591, 606 (2015).
3
Vargas-Soto was sentenced to 15-years imprisonment under 8 U.S.C.
§ 1326(b)(2) based on his prior conviction for an “aggravated felony,” namely
manslaughter, a “crime of violence” under 18 U.S.C. § 16(b). See 8 U.S.C.
§ 1101(a)(43)(F). Without the application of § 1326(b)(2)’s sentencing enhancement,
Vargas-Soto was subject to a maximum term of 10-years imprisonment under § 1326(b)(1).
The Government does not dispute that a sentence exceeding the statutory maximum by
five years qualifies as actual prejudice.
4
The prior manslaughter conviction Vargas-Soto’s enhanced sentence was based
on does not qualify under § 16(a)’s elements clause under the Supreme Court’s recent
decision in Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (plurality opinion) (holding
that that an offense involving “reckless conduct” does not satisfy the elements clause’s
definition of “an offense requiring ‘the use of force against the person of another’”); see
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I.
A number of provisions in the federal criminal statutes provide for a
sentencing enhancement based on a defendant’s prior conviction for, e.g., a
“crime of violence.”5 One way for a crime to fall within this definition is to
meet the terms of the statutes’ substantially identical “residual clauses.” 6
For years, including in Vargas-Soto’s case, courts enhanced sentences by
applying the residual clauses without question. 7 Notably, before Vargas-
Soto’s sentencing and direct appeal in 2011, the Supreme Court expressly
held in James that one of these residual clauses, 18 U.S.C. § 924(e)(2)(B) in
the Armed Career Criminal Act (“ACCA”), did not raise a constitutional
void-for-vagueness problem.8
However, in 2015, in Johnson, the Court overruled James and
recognized that a residual clause is void-for-vagueness and constitutionally
infirm when it (1) “ties the judicial assessment of risk to a judicially imagined
‘ordinary case’ of a crime, not to real-world facts or statutory elements,” and
(2) “leaves uncertainty about how much risk it takes for a crime to qualify as
a violent felony.”9 The major dispute in this case is whether the void-for-
vagueness argument was “novel” at the time of Vargas-Soto’s procedural
default. The novelty inquiry turns on whether the “legal basis” for Vargas-
Soto’s claim—that, under Johnson and its progeny, 18 U.S.C. § 16(b) is void-
also id. at 1835 (Thomas, J., concurring) (“A crime that can be committed through mere
recklessness does not have as an element the ‘use of physical force.’”).
5
18 U.S.C. § 16.
6
Id. § 16(b).
7
See United States v. Vargas-Soto, 700 F.3d 180, 182–84 (5th Cir. 2012).
8
550 U.S. at 210 n.6.
9
576 U.S. at 597–98.
34
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for-vagueness—was “reasonably available.”10 If it was not, then Vargas-Soto
has established cause for his procedural default.11
A.
We have clear direction from the Supreme Court on what “novelty”
means in this context. In Reed v. Ross, the Court held, for the first time, that
cause for a procedural default exists when the defaulted claim is “novel.”12
The Court described three non-exhaustive situations in which a
constitutional claim is sufficiently novel:
First, a decision of this Court may explicitly overrule one of our
precedents. Second, a decision may overturn a longstanding
and widespread practice to which this Court has not spoken,
but which a near-unanimous body of lower court authority has
expressly approved. And, finally, a decision may disapprove a
practice this Court arguably has sanctioned in prior cases.13
Because Johnson expressly overruled James,14 the first category squarely fits
this case, and we need look no further for a definition of novelty.
Contrary to the majority’s conclusion, every circuit court, seven total,
to consider whether Johnson is sufficiently novel to establish cause have held,
under Reed, that it is. The First, Sixth, Seventh, and Tenth Circuits have
10
Bousley v. United States, 523 U.S. 614, 622 (quoting Reed v. Ross, 468 U.S. 1, 16
(1984)) (emphasis added).
11
Id.12
468 U.S. at 16.
13
Id. at 17.
14
576 U.S. at 606.
35
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issued precedential opinions on the issue.15 The Fourth, Ninth, and Eleventh
Circuits have each decided the issue in non-precedential opinions.16
The lone outlier is the Eleventh Circuit’s opinion in Granda v. United
States.17 But that court relied on the fact that the movant, Carlos Granda,
challenged a sentencing enhancement under 18 U.S.C. § 924(c)(3)(B)’s
residual clause (the clause discussed in United States v. Davis18), rather than
18 U.S.C. § 924(e)(2)(B)’s (the clause discussed in Johnson). Even so, the
Granda court recognized the validity of Reed, but found the first category
15
See Lassend v. United States, 898 F.3d 115, 122–23 (1st Cir. 2018) (“Reed stated
that, where the Supreme Court explicitly overrules one of its own precedents, . . . the failure
of a defendant’s attorney to have pressed such a claim . . . is sufficiently excusable to satisfy
the cause requirement. That is what happened here.” (internal quotation marks, brackets,
and citations omitted)); Raines v. United States, 898 F.3d 680, 687 (6th Cir. 2018) and
Gatewood v. United States, 979 F.3d 391, 396 (6th Cir. 2020) (construing Raines as holding
that Johnson was “actually futile,” thereby satisfying Reed’s first category), cert. denied, 141
S. Ct. 2798 (2021); Cross v. United States, 892 F.3d 288, 296 (7th Cir. 2018) (“We join the
Tenth Circuit in excusing, under Reed’s first category, the petitioners’ failure to challenge
the residual clause prior to Johnson.”); United States v. Snyder, 871 F.3d 1122, 1127–28
(10th Cir. 2017) (“We therefore conclude that the Johnson claim was not reasonably
available to Snyder at the time of his direct appeal, and that this is sufficient to establish
cause.”).
16
United States v. Bennerman, 785 F. App’x 958, 963 (4th Cir. 2019) (concluding
that the movant’s Johnson argument was not procedurally defaulted because it “wasn’t
reasonably available before the change in law wrought by Johnson” and adopting the
approach taken by the First, Seventh, and Tenth Circuits in, respectively, Lassend, Cross,
and Snyder); Ezell v. United States, 743 F. App’x 784, 785 (9th Cir. 2018) (“Ezell had cause
not to challenge because at that time, Supreme Court precedent foreclosed the argument
that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague.”
(footnote omitted)); Rose v. United States, 738 F. App’x 617, 626 (11th Cir. 2018) (“Under
Reed, Mr. Rose has shown cause for failing to assert a vagueness challenge to the ACCA’s
residual clause on direct appeal.”).
17
990 F.3d 1272 (11th Cir. 2021). The Eleventh Circuit followed Granda in another
recent decision, Herron v. United States, No. 21-10212, 2022 WL 987423, at *2 (11th Cir.
Apr. 1, 2022).
18
139 S. Ct. 2319 (2019).
36
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inapplicable because, “[u]nlike the Johnson ACCA decision, Davis did not
overrule any prior Supreme Court precedents holding that the § 924(c)
clause was not unconstitutionally vague.”19 That overly formalistic
distinction between “Johnson claims,” which involve § 924(e)(2)(B), and
“Davis claims,” which involve § 924(c)(3)(B), is foreclosed by our
precedent,20 something the majority recognizes. When the Eleventh Circuit
considered cause in the context of a Johnson claim, it held—in accord with
every other circuit—that the claim was novel under Reed.21
Reed’s first category is plainly applicable and should resolve this case.
The logic behind Reed, as seven circuit courts have recognized, remains
sound: a claim is not “reasonably available” when the Supreme Court bars
it. When the Supreme Court forecloses a constitutional claim, every court in
the nation, including the High Court, is bound to reject it. To say that such
claims are “reasonably available” defies logic. I would join our sister circuits,
and hold that, pre-Johnson, a void-for-vagueness challenge to a sentencing
provision’s residual clause was novel.
The majority avoids Reed by characterizing its first two categories of
novel claims as mere dicta. According to the majority, Reed’s first two
19
Granda, 990 F.3d at 1287.
20
See United States v. Castro, 30 F.4th 240, 247 (5th Cir. 2022). The Supreme
Court has also made clear that Johnson’s rule controls the analysis for each of the residual
clauses, which are substantially identical. Dimaya, 138 S. Ct. at 1213-16 (noting that
“Johnson is a straightforward decision [about § 924(e)(2)(B)’s residual clause] with equally
straightforward application [to § 16(b)’s residual clause]” and holding that § 16(b) is
unconstitutionally vague because it shares the same flaws as § 924(e)(2)(B)); see also Davis,
139 S. Ct. at 2326–27 (expanding Johnson’s application to § 924(c)(3)(B) because Johnson
and Dimaya “teach that the imposition of criminal punishment can’t be made to depend
on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case,’”
and because § 924(c)(3)(B) contains the same flaws as the other residual clauses).
21
Rose, 738 F. App’x at 626.
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categories have been rendered inapplicable based on (1) the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), (2) later precedent, and
(3) practice. None of these arguments stand up to scrutiny.
1.
The majority’s position that AEDPA somehow affects the “cause”
standard for granting habeas relief is baffling. AEDPA provides the rule for
the circumstances that may allow a prisoner to file a “second or successive”
§ 2255 motion to vacate.22 The “second or successive” standard is
independent from the common law procedural default doctrine. 23 If the
majority suggests that the AEDPA standard for filing a successive motion
also governs the “cause” standard for a procedural default, Vargas-Soto
meets that standard. In Welch v. United States, the Court held that “Johnson
is . . . a substantive decision and so has retroactive effect under Teague [v.
Lane] in cases on collateral review.”24
Neither the statute nor Teague suggests that this Court should not
follow the Reed standard in determining what is a “new” or “novel” rule
sufficient to establish cause for a procedural default. Regarding Reed’s first
category—the most pertinent one in this case—the Supreme Court has
continued to recognize that a rule is “new” when the Court overrules an
22
28 U.S.C. § 2255(h)(2).
23
B. Means, Federal Habeas Manual § 9B:3 (2017) (“AEDPA did not
change the application of pre-AEDPA procedural default principles.”); see also Lee
Kovarsky, AEDPA Wrecks: Comity, Finality, and Federalism, 82 Tul. L. Rev. 443, 450
(2007) (“[AEDPA] did little to alter existing [procedural] default doctrine.”).
24
578 U.S. 120, 130 (2016). AEDPA allows a petitioner to file a successive § 2255
motion if it is based on a “new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §
2255(h)(2).
38
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earlier decision in announcing the rule. 25 In fact, the Court has stated that
“[t]he starkest example of a decision announcing a new rule is a decision that
overrules an earlier case.”26 And, that is consistent with Reed, where the
Court used the term “new” interchangeably with the term “novel.” 27
2.
Next, the majority argues that precedent requires us to limit Reed.
This argument is also confounding. The express holding in Reed was that
cause for a procedural default exists when “a constitutional claim is so novel
that its legal basis is not reasonably available to counsel.”28 The majority
eviscerates that holding when it instead imposes the nigh-insurmountable
requirement that “a prisoner cannot invoke ‘novelty’ as cause for a default
where he was legally able to make the putatively novel argument.” The
majority’s decision to dramatically increase the burden for establishing cause
contradicts not only Reed, but also the later cases the majority relies on.
The majority points to two cases, Smith v. Murray29 and Bousley v.
United States.30 In its view, these cases displace Reed’s novelty analysis and
stand for the proposition that “futile claims are not novel.” But the Supreme
Court has never held that a finding of futility will preclude a finding of
novelty. To the contrary, the Court has consistently treated the novelty issue
25
Edwards v. Vannoy, 141 S. Ct. 1547, 1555 (2021) (citing Whorton v. Bockting, 549
U.S. 406, 416 (2007)).
26
Id.27
468 U.S. at 17.
28
468 U.S. at 16 (emphasis added).
29
477 U.S. 527 (1986).
30
523 U.S. at 622.
39
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as a separate question from futility.31 In Murray, the Court set forth the rule
that “perceived futility alone cannot constitute cause.”32 And in Bousley, the
Court held that “futility cannot constitute cause if it means simply that a
claim was unacceptable to that particular court at that particular time.”33
Read in context, Bousley was referring to situations in which a claim is
apparently futile because a lower court’s precedent bars it. 34 The majority
ignores these self-evident limits on the rule that, in general, futility is not
enough to show cause.
Properly construed, Murray and Bousley reflect that a futile claim may
be the basis for cause, as long as it is sufficiently novel. Reed remains the best
guidance on how to define novelty, and neither Murray nor Bousley dealt with
a situation in which the Supreme Court overturned its own precedent. Rather
than imposing the majority’s extraordinary legally-able-to-make standard,
31
Murray, 477 U.S. at 535–36; Bousley, 523 U.S. at 622–23.
32
477 U.S. at 535 (quoting Engle v. Isaac, 456 U.S. 107, 130 & n.36 (1982))
(emphasis added).
33
523 U.S. at 623 (emphasis added).
34
The rule of law at issue in Bousley was that, to show “use” of a firearm under 18
U.S.C. § 924(c)(1), the Government must show “active employment of the firearm.” 523
U.S. at 616 (quoting Bailey v. United States, 516 U.S. 137, 144 (1995)). Before Bailey v.
United States, the Eighth Circuit—in which the petitioner’s underlying proceedings took
place—held that “use” included the mere “presence and availability” of a firearm in
relation to a drug trafficking offense. See, e.g., United States v. Horne, 4 F.3d 579, 587 (8th
Cir. 1993). Thus, when his collateral attack reached the Supreme Court, the petitioner
argued it would have been futile to raise these claims in the Eighth Circuit. Bousley v. Brooks,
1997 WL 728537 (U.S.), 32, 35 (U.S. Pet. Brief, 1997) (“His attorney’s advice that it was
futile to appeal from the guilty plea was correct, because Eighth Circuit case law was so well
established.”).
40
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No. 20-10705
both Murray and Bousley reaffirm that cause exists “where a constitutional
claim is so novel that its legal basis is not reasonably available to counsel.”35
The Sixth Circuit in Gatewood v. United States discussed at length the
distinction between Reed on one hand and Murray and Bousley on the other.36
That court concluded that, under Reed, “‘actual futility,’ caused by the
Supreme Court’s ruling on an issue, can constitute cause.”37 However,
under Murray and Bousley, “‘futility cannot be cause’ . . . where the source
of the ‘perceived futility’ is adverse state or lower court precedent.” 38
Applying Reed’s first category, the Sixth Circuit held that a claim under
Johnson met the cause requirement, as long as the underlying proceedings
occurred after the Supreme Court expressly precluded the void-for-
vagueness argument in James.39
The fundamental fallacy to the majority’s reasoning is its failure to
recognize that a novel claim will almost always be futile. As the Reed Court
stated:
Just as it is reasonable to assume that a competent lawyer will
fail to perceive the possibility of raising such a [novel] claim, it
is also reasonable to assume that a court will similarly fail to
appreciate the claim. It is in the nature of our legal system that
legal concepts, including constitutional concepts, develop
slowly, finding partial acceptance in some courts while meeting
rejection in others. Despite the fact that a constitutional
concept may ultimately enjoy general acceptance, . . . when the
35
Murray, 477 U.S. at 536 (quoting Reed, 468 U.S. at 18) (emphasis added); Bousley,
523 U.S. at 622 (quoting Reed, 468 U.S. at 16) (emphasis added).
36
979 F.3d at 395–97.
37
Id. at 396.
38
Id.
39
Id. at 397–98.
41
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concept is in its embryonic stage, it will, by hypothesis, be
rejected by most courts. Consequently, a rule requiring a
defendant to raise a truly novel issue is not likely to serve any
functional purpose.40
The majority ignores this sound reasoning. Instead, it would require
defendants to raise-or-waive every conceivable objection at sentencing and
direct appeal, no matter how novel it may be.
3.
Finally, as further support for its position, the majority points to the
fact that numerous criminal defendants continue to preserve claims
foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United
States.41 If Reed’s first category remains good law, these defendants need not
preserve their arguments, because in the eventuality that the Supreme Court
overrules Almendarez-Torres, the claim will be sufficiently novel to show
cause for their failure to raise it. The majority contends that we cannot “treat
prisoners who raise the [Almendarez-Torres] challenge the same as those that
don’t.”
This reasoning is deeply flawed. This Court has repeatedly
admonished defendants and their counsel not to bring Almendarez-Torres
claims on appeal. For example, in United States v. Pineda-Arrellano, we stated
that “arguments seeking reconsideration of Almendarez-Torres will be viewed
with skepticism.”42 We advised that “[i]t would be prudent for appellants
40
Reed, 468 U.S. at 15.
41
523 U.S. 224 (1998).
42
492 F.3d 624, 626 (5th Cir. 2007).
42
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and their counsel not to damage their credibility with this court by asserting
non-debatable arguments.”43
If the Supreme Court finally overturns Almendarez-Torres, the
majority would treat those “prudent” defendants—who elected to follow
this Court’s instructions—as having procedurally defaulted their
Almendarez-Torres claims.44 Meanwhile, those imprudent few who chose to
“damage their credibility” by raising their fruitless claims will be entitled to
relief.45 The majority thereby undermines principles of judicial efficiency and
establishes a rule that will unjustly deprive litigants of their opportunity to
challenge an unconstitutional sentence.
II.
The majority opinion stands in direct contradiction to Supreme Court
authority and unanimous circuit authority. In my view, Vargas-Soto has
established cause for his procedural default and has demonstrated that he is
entitled to § 2255 relief. The majority avoids this obvious result by obscuring
or misreading applicable authority. It achieves an injustice in this case, and
many future cases, despite clear Supreme Court guidance. Therefore, I
respectfully dissent.
43
Id.
44
Id.
45
Id.
43