Kamil Hakeem Johnson v. United States , 720 F.3d 720 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3744
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Kamil Hakeem Johnson
lllllllllllllllllllllPetitioner
v.
United States of America
lllllllllllllllllllllRespondent
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: May 23, 2013
Filed: July 12, 2013
[Published]
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Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.
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PER CURIAM.
Kamil Hakeem Johnson seeks authorization to file a successive 28 U.S.C.
§ 2255 motion, asserting that Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), which
held that a sentencing scheme that requires a sentence of life imprisonment without
parole for certain crimes committed by defendants who were under the age of 18
violates the Eighth Amendment, announced a new rule that applies retroactively, see
28 U.S.C. § 2255(h)(2). We conclude that Mr. Johnson has made a prima facie
showing, see 28 U.S.C. §§ 2255(h), 2244(b)(3)(C), that his motion contains "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), and we
therefore grant him authorization to file a successive § 2255 motion.
In granting authorization we join most other circuits in adopting the
proposition that a prima facie showing in this context is "simply a sufficient showing
of possible merit to warrant a fuller exploration by the district court," see Bennett v.
United States, 119 F.3d 468, 469 (7th Cir. 1997). See Case v. Hatch, --- F.3d. ---,
2013 WL 1501521, at *1, 10-12 (10th Cir. April 12, 2013); Goldblum v. Klem, 510
F.3d 204, 219 (3rd Cir. 2007); In re Williams, 330 F.3d 277, 281 (4th Cir. 2003); In
re Holladay, 331 F.3d 1169, 1173-74 (11th Cir. 2003); Bell v. United States, 296 F.3d
127, 128 (2d Cir. 2002); Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th
Cir. 2001); Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir. 1998); Rodriguez v.
Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998), abrogated
on other grounds by Bousley v. United States, 523 U.S. 614 (1998). We emphasize
that the "district court must not defer" to our "preliminary determination" in granting
the authorization, Case, 2013 WL 1501521, *11, as our "grant is… tentative in the
following sense: the district court must dismiss the motion that we have allowed the
applicant to file, without reaching the merits of the motion, if the court finds that the
movant has not satisfied the requirements for the filing of such a motion," Bennett,
119 F.3d at 469-70 (citing 28 U.S.C. § 2244(b)(4)). The government here has
conceded that Miller is retroactive and that Mr. Johnson may be entitled to relief
under that case, and we therefore conclude that there is a sufficient showing here to
warrant the district court's further exploration of the matter.
COLLOTON, Circuit Judge, dissenting.
Like the Eleventh Circuit in In re Morgan, 713 F.3d 1365 (11th Cir.), reh’g
denied, 2013 WL 2476318 (11th Cir. June 10, 2013), I would deny the motion for
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authorization to file a second or successive motion under 28 U.S.C. § 2255, because
the movant has not made a prima facie showing that Miller v. Alabama, 132 S. Ct.
2455 (2012), announced a new rule of constitutional law that has been “made
retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C.
§ 2255(h)(2). A new rule is not “made retroactive” unless the Supreme Court holds
it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663 (2001). Although movant Kamil
Hakeem Johnson and the government suggest reasons why reasonable jurists could
believe that the Court in the future might conclude that Miller announced a
“substantive” rule, and therefore should apply retroactively, see Schriro v. Summerlin,
542 U.S. 348, 351, 352 n.4 (2004), the motion for authorization has merit only if the
Court’s holdings to date “necessarily dictate retroactivity of the new rule.” Tyler, 533
U.S. at 663 n.5, 666. As the government acknowledges in its response to the pending
motion, “[t]o date, the new rules the Court has treated as substantive have
categorically prohibited a particular outcome for a particular class of defendants,
regardless of the procedure employed.” Gov’t Resp. at 12. Miller does not fit within
that class of new rules; it creates the possibility of a different result through
individualized sentencing, Miller, 132 S. Ct. at 2460, but it does not prohibit an
outcome of life imprisonment for a juvenile like Johnson, who shot a .38 caliber
pistol in the direction of gang members at a gas station and killed a four-year-old girl
returning home from a day at a neighborhood festival. See id. at 2469 (“[W]e do not
foreclose a sentencer’s ability to make that judgment in homicide cases”); see also
United States v. Crenshaw, 359 F.3d 977, 981-83 (8th Cir. 2004) (recounting the
evidence against Johnson). To rule that Miller announced a “substantive” rule would
require an extension of the Supreme Court’s holdings, and the motion for
authorization should therefore be denied.
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