Benjamin C. Price v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2427
BENJAMIN C. P RICE ,
Applicant,
v.
U NITED STATES OF A MERICA ,
Respondent.
____________________
On Motion for an Order Authorizing the District Court
to Entertain a Second or Successive Motion for
Collateral Review.
____________________
SUBMITTED J ULY 7, 2015 — D ECIDED A UGUST 4, 2015
____________________
Before WOOD, Chief Judge, and SYKES and H AMILTON, Cir-
cuit Judges.
WOOD, Chief Judge. In 2006, a jury convicted Benjamin
Price, a convicted felon, of possessing a gun in violation of
18 U.S.C. § 922(g)(1). Turning to the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), the court concluded that

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2 No. 15-2427
Price had three qualifying convictions and imposed a sen-
tence of 250 months in prison. This court affirmed. United
States v. Price, 520 F.3d 753 (7th Cir. 2008).
In 2009, Price filed his first collateral attack pursuant to
28 U.S.C. § 2255. In his motion, he challenged the sentencing
court’s determination that he qualified under ACCA as an
armed career criminal. The Supreme Court’s decision in Be-
gay v. United States, 553 U.S. 137 (2008), he argued, demon-
strated that the sentencing court improperly relied on his
prior convictions for criminal recklessness to enhance his
sentence under ACCA’s residual clause because his prior
crimes fell outside the scope of that clause. The district court
denied relief, and we affirmed. Price v. United States, 434 F.
App’x 550 (7th Cir. 2011).
Price now asks this court to authorize the district court to
entertain a successive collateral attack, 28 U.S.C. § 2244(b)(3),
in which he proposes to assert a claim under Johnson v. Unit-
ed States, 135 S. Ct. 2551 (2015). Johnson holds that the imposi-
tion of an enhanced sentence under the residual clause of
ACCA violates due process because the clause is too vague
to provide adequate notice. Id. at 2557. We invited the gov-
ernment to respond, and it has done so. We now conclude,
consistently with the government’s position, that Johnson
announces a new substantive rule of constitutional law that
the Supreme Court has categorically made retroactive to fi-
nal convictions.
Under § 2255(h)(2), a court of appeals must deny author-
ization to pursue a second or successive motion for collateral
relief unless the applicant’s proposed claim relies on “a new
rule of constitutional law, made retroactive to cases on col-
lateral review by the Supreme Court, that was previously

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No. 15-2427 3
unavailable.” Price easily meets three of the four require-
ments. Johnson announces a new rule: It explicitly overrules
the line of Supreme Court decisions that began with Begay,
and it broke new ground by invalidating a provision of
ACCA. See Chaidez v. United States, 133 S. Ct. 1103, 1107
(2013) (“[A] case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s
conviction became final.”) (internal quotation marks omit-
ted). Johnson rests on the notice requirement of the Due Pro-
cess Clause of the Fifth Amendment, and thus the new rule
that it announces is one of constitutional law. Moreover, the
Johnson rule was previously unavailable to Price. He raised
and lost a different (though related) argument under the law
as it stood during his first collateral attack, in which he re-
lied on Begay and Sykes v. United States, 131 S. Ct. 2267 (2011),
to argue that his convictions for criminal recklessness fell
outside the scope of ACCA’s definition of a crime of vio-
lence. Price, 434 F. App’x at 554–55. He never alleged then
that ACCA’s residual clause itself was unconstitutionally
vague. This explains why 28 U.S.C. § 2244(b)(1), to the extent
that it is applicable, does not bar Price’s application: he has
never presented this claim before. In any case, the United
States has not cited § 2244(b)(1) and thus has waived its abil-
ity to rely on it. Until Johnson was decided, any successive
collateral attack would have been futile.
The remaining question we must address is whether the
Supreme Court has “made” Johnson retroactive to cases on
collateral review. Tyler v. Cain holds that under
§ 2244(b)(2)(A)—the state-prisoner corollary of
§ 2255(h)(2)—the retroactivity determination must be made
by the Supreme Court. 533 U.S. 656, 662 (2001). In Tyler, the
Court explained that “‘made’ means ‘held’ and, thus, the re-

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4 No. 15-2427
quirement is satisfied only if this Court has held that the
new rule is retroactively applicable to cases on collateral re-
view.” Id.; see also Simpson v. United States, 721 F.3d 875, 876
(7th Cir. 2013) (“The declaration of retroactivity must come
from the Justices.”). Justice O’Connor, in a concurring opin-
ion whose rationale was endorsed by the four dissenting jus-
tices, noted that the Supreme Court could make a rule retro-
active “through multiple holdings that logically dictate the
retroactivity of the new rule.” Tyler, 533 U.S. at 668
(O’Connor, J., concurring); see id. at 670–73 (Breyer, J., dis-
senting, joined by Stevens, Souter, & Ginsburg, JJ.). Accord-
ingly, she wrote, “[i]f we hold in Case One that a particular
type of rule applies retroactively … and hold in Case Two
that a given rule is of that particular type, then it necessarily
follows that the given rule applies retroactively … . In such
circumstances, we can be said to have ‘made’ the given rule
retroactive.” Id. at 668–69. She emphasized, however, that
“the holdings must dictate the conclusion.” Id. at 669. The
Court makes “a rule retroactive within the meaning of
§ 2244(b)(2)(A) only where the Court’s holdings logically
permit no other conclusion than that the rule is retroactive.”
Id.
In Schriro v. Summerlin, 542 U.S. 348 (2004), the Court
summarized the various ways in which new rules affect cas-
es. When the Court announces a new rule, “that rule applies
to all criminal cases still pending on direct review.” Id. at
351. For convictions that are already final, however, new
rules apply only in limited situations:
New substantive rules generally apply retroac-
tively. This includes decisions that narrow the
scope of a criminal statute by interpreting its

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No. 15-2427 5
terms … as well as constitutional determina-
tions that place particular conduct or persons
covered by the statute beyond the State’s pow-
er to punish. …
New rules of procedure … generally do not
apply retroactively. … [W]e give retroactive ef-
fect to only a small set of “‘watershed rules of
criminal procedure’ implicating the fundamen-
tal fairness and accuracy of the criminal pro-
ceeding.”
Id. at 351–52 (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990));
see also Teague v. Lane, 489 U.S. 288 (1989) (discussing the
ground rules for retroactivity for constitutional procedural
rules).
When the new rule is substantive, it is easy (as Justice
O’Connor pointed out in Tyler) to demonstrate the required
declaration from the Supreme Court confirming that the rule
is retroactive: “When the Court holds as a new rule in a sub-
sequent case that a particular species of primary, private in-
dividual conduct is beyond the power of the criminal law-
making authority to proscribe, it necessarily follows that this
Court has ‘made’ that new rule retroactive.” Tyler, 533 U.S.
at 669; see also Summerlin, 542 U.S. at 351–52 (“New substan-
tive rules generally apply retroactively … because they ‘nec-
essarily carry a significant risk that a defendant stands con-
victed of an act that the law does not make criminal’ or faces
a punishment that the law cannot impose upon him.”) (quot-
ing Bousley v. United States, 523 U.S. 614, 620 (1998)). This is
entirely consistent with Teague, which also recognized that
new substantive rules are categorically retroactive. (The mat-
ter is not so “straightforward with respect to the second

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6 No. 15-2427
Teague exception … for ‘watershed rules of criminal proce-
dure,’” Tyler, 533 U.S. at 669–70 (O’Connor, J., concurring)
(quoting Teague, 489 U.S. at 311), but the case before us does
not present any such proposed rule.)
Several courts of appeals have adopted Justice
O’Connor’s Tyler analysis to determine whether a recent de-
cision by the Supreme Court satisfies the standards for au-
thorization under § 2255(h)(2) and its state-prisoner corol-
lary, § 2244(b)(2)(A). The Eleventh Circuit authorized a pris-
oner to pursue a second collateral attack under Atkins v. Vir-
ginia, 536 U.S. 304 (2002) (holding that the Eighth Amend-
ment prohibits the imposition of a capital sentence on a men-
tally disabled defendant), because Penry v. Lynaugh, 492 U.S.
302 (1989), made Atkins retroactive. In re Holladay, 331 F.3d
1169, 1172–73 (11th Cir. 2003). Other courts have applied the
Tyler analysis to deny authorization, specifically looking to
the Teague exceptions for new substantive rules or watershed
procedural rules to see if the Court has made a new rule an-
nounced in a subsequent decision retroactive by “logical ne-
cessity” and concluding it had not. See United States v. Redd,
735 F.3d 88, 91 (2d Cir. 2013) (Teague did not make Alleyne v.
United States, 133 S. Ct. 2151 (2013), retroactive) (per curiam);
In re Zambrano, 433 F.3d 886, 887–89 (D.C. Cir. 2006) (United
States v. Booker, 543 U.S. 220 (2005)); Paulino v. United States,
352 F.3d 1056, 1058–59 (6th Cir. 2003) (Richardson v. United
States, 526 U.S. 813 (1999)); Cannon v. Mullin, 297 F.3d 989,
993–94 (10th Cir. 2002) (Ring v. Arizona, 536 U.S. 584 (2002));
In re Turner, 267 F.3d 225, 228–30 (3d Cir. 2001) (Apprendi v.
New Jersey, 530 U.S. 466 (2000)).
Johnson, we conclude, announced a new substantive rule.
In deciding that the residual clause is unconstitutionally

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No. 15-2427 7
vague, the Supreme Court prohibited “a certain category of
punishment for a class of defendants because of their sta-
tus.” Saffle, 494 U.S. at 494. A defendant who was sentenced
under the residual clause necessarily bears a significant risk
of facing “a punishment that the law cannot impose upon
him.” Summerlin, 542 U.S. at 352. There is no escaping the
logical conclusion that the Court itself has made Johnson cat-
egorically retroactive to cases on collateral review. Because
Price has made a prima facie showing that he may be entitled
to sentencing relief under Johnson, we G RANT Price’s applica-
tion and A UTHORIZE the district court to consider a succes-
sive collateral attack presenting this claim.
We add a cautionary note in closing. Our review of
Price’s substantive claim is necessarily preliminary, and as
we just noted, our holding is limited to the conclusion that
Price has made a prima facie showing of a tenable claim un-
der Johnson. The district court will have the opportunity to
examine the claim in more detail as the case proceeds. That
court is authorized under § 2244(b)(4) to dismiss any claim
that it concludes upon closer examination does not satisfy
the criteria for authorization. The judge is likely to be famil-
iar with the case (or to become familiar easily) because
§ 2255 motions must be filed in the applicant’s sentencing
court, which has access to the criminal record and familiarity
with the case. Our conclusions are tentative largely because
of the strict time constraints under which we must review
these applications. Tyler, 533 U.S. at 664 (“It is unlikely that a
court of appeals could make such a determination in the al-
lotted time [30 days] if it had to do more than simply rely on
Supreme Court holdings.”). For example, we do not know
whether Price has other qualifying convictions that were not
considered at sentencing because, at that time, the three on

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8 No. 15-2427
which the court relied were sufficient. If he is successful in
vacating his sentence under Johnson, the parties will be free
to argue this and any other pertinent questions on resentenc-
ing.

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