Shedrick L. Henry, Petitioner,
M. Eliot Spearman, Warden, Respondent.
and Submitted June 15, 2018 San Francisco, California
Application to File Second or Successive Petition Under 28
U.S.C. § 2254
A. Smarandoiu (argued) and Todd M. Borden, Assistant Federal
Public Defenders; Steven G. Kalar, Federal Public Defender;
Office of the Federal Public Defender, San Francisco,
California; for Petitioner.
Gregory A. Ott (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondent.
Before: Mary M. Schroeder, David M. Ebel, [*] and Ronald M. Gould, Circuit
panel granted California prisoner Shedrick Henry's motion
to file a second or successive 28 U.S.C. § 2254 habeas
corpus petition urging that California's second-degree
felony-murder rule is unconstitutionally vague under
Johnson v. United States, 135 S.Ct. 2551 (2015).
panel rejected the State of California's arguments that
Henry lacks standing to bring a vagueness challenge and that
his claim is effectively moot. The panel held that there is a
plausible position that Johnson did not limit its
constitutional rule to certain features of the Armed Career
Criminal Act's residual clause that the State contends
are absent from California's second-degree felony-murder
rule, and concluded that Henry has made a prima
facie showing that his claim "relies on" the
new and retroactively applicable rule of Johnson.
prisoner Shedrick Henry was convicted of felony discharge of
a firearm at an inhabited dwelling and second-degree murder
in 1996. The jury was instructed that it could convict Henry
of murder based on California's unique second-degree
felony-murder rule, which imputes the requisite malice from
the commission of a felony that, viewed in the abstract, is
"inherently dangerous." Henry previously filed an
unsuccessful federal habeas corpus petition in the U.S.
District Court for the Northern District of California. He
now timely moves for leave to file a second or successive 28
U.S.C. § 2254 habeas corpus petition, urging that
California's second-degree felony-murder rule is
unconstitutionally vague under the U.S. Supreme Court's
precedent in Johnson v. United States, 135 S.Ct.
2551 (2015). We conclude that Henry has made the necessary
showing to file another § 2254 petition, and so we grant
Henry's motion to file a second or successive habeas
Antiterrorism and Effective Death Penalty Act
("AEDPA") instituted a "gatekeeping"
procedure for screening second or successive federal habeas
corpus petitions. Felker v. Turpin, 518 U.S. 651,
657 (1996). Before filing such a petition in district court,
a state prisoner must obtain authorization from the court of
appeals. 28 U.S.C. § 2244(b)(3)(A). The court of appeals
must deny the motion unless it makes a "prima facie
showing" both that the motion presents a claim not
previously raised and that it satisfies one of two narrow
exceptions. Id. § 2244(b).
case, Henry must make a prima facie showing that his
proposed petition " relies on  a new rule of
constitutional law,  made retroactive to cases on
collateral review by the Supreme Court,  that was
previously unavailable." Id. §
2244(b)(2)(A). Requests to file second or successive
petitions usually hinge on the latter three demanding
requirements, with no dispute that a petitioner's habeas
corpus claim "relies on" an asserted new and
retroactive rule of constitutional law. See, e.g.,
Tyler v. Cain, 533 U.S. 656, 662 (2001) (recognizing
only those "three prerequisites"); Jones v.
Ryan, 733 F.3d 825, 842-43 (9th Cir. 2013) (same). Here,
however, those requirements are unquestionably satisfied. In
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court held that Johnson announced a new rule
of constitutional law retroactively applicable to cases on
collateral review. Id. at 1264, 1268. And because
Johnson was decided in 2015, its rule was
unavailable when Henry filed his previous federal habeas
corpus petition more than a decade earlier. See,
e.g., In re Smith, 142 F.3d 832, 835 (5th Cir.
1998); Felker v. Turpin, 83 F.3d 1303, 1306 (11th
controlling question for us is whether Henry has made a
prima facie showing that his petition "relies
on" Johnson. We have never before considered
what is required for a claim to "rel[y]" on a
qualifying new rule for the purposes of §
2244(b). But by its terms, § 2244(b) imposes
on the petitioner only a "light burden." In re
Hoffner, 870 F.3d 301, 307 (3d Cir. 2017). To begin
with, a prima facie showing is "simply a
sufficient showing of possible merit to warrant a
fuller exploration by the district court." Cooper v.
Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004) (en
banc) (citation omitted). Further, § 2244(b)(3)(D)
urges courts to resolve motions to file second or successive
petitions within 30 days, which "suggests that [we] do
not have to engage in . . . difficult legal analysis" in
our gatekeeping role. Tyler, 533 U.S. at 664. And
§ 2244(b)(3)(E) precludes rehearing or Supreme Court
review of a panel's screening decision, which
"counsels greater caution before denying an