Summary
holding that the petitioner made the prima facie showing required under § 2255(h) based on the government's “conce[ssion] that Johnson announced a new rule of constitutional law that was previously unavailable ... made retroactive by the Supreme Court”
Summary of this case from In re WatkinsOpinion
No. 15–1799.
2015-10-20
John PAKALA, Petitioner, v. UNITED STATES, Respondent.
Application for Leave to File a Second or Successive Motion Pursuant to 28 U.S.C. § 2255. John Pakala, Pro Se. Sandra S. Bower, Assistant U.S. Attorney, and Carmen M. Ortiz, U.S. Attorney, for Respondent.
Application for Leave to File a Second or Successive Motion Pursuant to 28 U.S.C. § 2255.
John Pakala, Pro Se. Sandra S. Bower, Assistant U.S. Attorney, and Carmen M. Ortiz, U.S. Attorney, for Respondent.
Before TORRUELLA, LYNCH and KAYATTA, Circuit Judges.
PER CURIAM.
Petitioner John Pakala, who is serving a 235–month sentence as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ( “ACCA”), seeks certification to file in district court a second or successive 28 U.S.C. § 2255 motion to vacate his sentence. See§ 2255(h). He relies upon the United States Supreme Court's decision in Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down the “residual clause” of the ACCA as unconstitutionally vague. In affirming Pakala's sentence on direct appeal, we relied upon a determination that his two prior Florida convictions qualified as violent felonies under the ACCA's residual clause. See United States v. Pakala, 568 F.3d 47, 55 (1st Cir.2009).
“In deciding whether to grant certification in the absence of any newly discovered evidence, we ask whether the petition ‘contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.’ ” Evans–Garcia v. United States, 744 F.3d 235, 237 (1st Cir.2014)(quoting § 2255(h)(2)). At this stage, “the court of appeals should ask whether the ‘application makes a prima facie showing’ that it satisfies the applicable requirements.” Id. The question before us here is not whether the petition has merit, but instead “whether ‘it appears reasonably likely’ ” that the petition satisfies the gatekeeping requirements for filing a second or successive petition. Id. (citation omitted).
Here, the government concedes that Johnson announced a new rule of constitutional law that was previously unavailable. And, it further concedes that Pakala has at least made a prima facie showing that Johnson has been made retroactive by the Supreme Court.
In view of the government's140concessions, we certify that Pakala has made the requisite prima facie showing that the new constitutional rule announced in Johnson “qualifies as a basis for habeas relief on a second or successive petition, and so we allow him to file his petition with the district court.” Evans–Garcia, 744 F.3d at 240. The application is granted. Petitioner's motion for appointment of counsel is denied as moot.