On the post-Dimaya front, the Second Circuit gave us some good—but easily overlooked—news last week. See Acosta v. United States, No. 16-1492 (2d Cir. 2018) (Jacobs, Livingston, Droney) (clerk’s order). In a sua sponte order, available here, the Circuit granted leave to file a successive 2255 petition arguing that a conviction under 18 U.S.C. § 924(c)(3)(B) is unconstitutional.
Here’s the analysis:
Petitioner has “made a prima facie showing that his claim satisfies § 2255(h) and warrants fuller exploration by the district court.” Blow v. United States, 829 F.3d 170, 172 (2d Cir. 2016).
Section § 924(c)(3)(B) is essentially identical to 18 U.S.C. § 16(b), which was found unconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), largely based on the Supreme Court’s analysis in Johnson. The Supreme Court has held Johnson to be retroactively applicable to cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016); see also See [sic] Tyler v. Cain,533 U.S. 656, 666 (2001) (stating that, “with the right combination of holdings,” the Supreme Court could make a new rule retroactive over the course of two or more cases). For present purposes, we have not examined Petitioner’s other proposed claims. See United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“The court of appeals must examine the [successive] application to determine whether it contains any claim that satisfies. . . § 2255[(h)]. . . . If so, the court should authorize the prisoner to file the entire application in the district court, even if some of the claims in the application do not satisfy the applicable standards.”).
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