In re: BRIAN M. MULLINS, Movant.
Nos. 6:16-CV-01199-EFM & 6:11-CR-10205-EFM-1, (D. Kan.)
TYMKOVICH, Chief Judge, and BRISCOE and BACHARACH, Circuit
Brian Mullins seeks authorization from this court to file a
second or successive motion under 28 U.S.C. § 2255 to
challenge his conviction under 18 U.S.C. § 924(c) for
possession of a firearm during and in relation to a
conspiracy to commit a Hobbs Act robbery. In addition to the
§ 924(c) offense, Mullins was convicted of conspiracy to
commit a Hobbs Act robbery and possession of a firearm by a
felon. He received concurrent 84-month sentences for these
two convictions and a consecutive 60-month sentence for the
§ 924(c) conviction. Mullins did not file a direct
appeal, but he did file a § 2255 motion challenging his
§ 924(c) conviction. The district court denied that
§ 2255 motion and Mullins did not appeal.
he filed an earlier unsuccessful § 2255 motion, Mullins
must first receive authorization from this court before
filing a second or successive § 2255 motion in district
court. See 28 U.S.C. § 2255(h); id.
§ 2244(b)(3). Mullins seeks authorization to file a
second § 2255 motion to challenge his § 924(c)
conviction based on the Supreme Court's recent decision
in United States v. Davis, 139 S.Ct. 2319 (2019).
924(c) provides in pertinent part that "any person who,
during and in relation to any crime of violence . . . uses or
carries a firearm or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence . . . be sentenced to a
term of not less than 5 years." 18 U.S.C. §
924(c)(1)(A)(i). The statute further provides:
For purposes of this subsection the term "crime of
violence" means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
Id. § 924(c)(3). Subsection (A) of this
definition is referred to as the elements clause and
subsection (B) is referred to as the residual clause. The
crime of violence underlying Mullins' § 924(c)
conviction was conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a).
obtain authorization to file a second § 2255 motion,
Mullins must make a prima facie showing, 28 U.S.C. §
2244(b)(3)(C), that he satisfies one of the gatekeeping
provisions contained in § 2255(h). Mullins contends that
his challenge based on Davis satisfies the
gatekeeping provision in § 2255(h)(2): his claim relies
on "a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable." The government concedes in its
response to Mullins' motion for authorization that his
Davis claim meets this standard. Resp. of United
States at 4.
Davis, the Supreme Court held that the residual
clause in § 924(c)(3)'s definition of "crime of
violence" is unconstitutionally vague. 139 S.Ct. at
2336. Accordingly, it struck down the residual clause, as it
had done with similarly worded residual clauses in the Armed
Career Criminal Act (ACCA), see Johnson v. United
States, 135 S.Ct. 2551 (2015), and in 18 U.S.C. §
16(b), see Sessions v Dimaya, 138 S.Ct. 1204 (2018).
Mullins contends that his § 924(c) conviction could rest
only on application of § 924(c)(3)'s residual
clause, so his conviction is invalid under Davis.
we can authorize Mullins to pursue his Davis claim
in district court, he must show that it satisfies the
gatekeeping requirements of § 2255(h)(2). Thus, he must
show (1) that Davis announced a new rule of
constitutional law, (2) that Davis has been made
retroactive to cases on collateral review by the Supreme
Court, and (3) that the rule announced in Davis was
previously unavailable. Id.
court has already determined that Davis announced a
new rule of constitutional law. United States v.
Bowen, 936 F.3d 1091, 1098 (10th Cir. 2019). We turn,
then, to whether the Supreme Court has made Davis
retroactive to cases on collateral review. For purposes of
the second or successive gatekeeping provisions, "a new
rule is not made retroactive to cases on collateral review
unless the Supreme Court holds it to be retroactive."
Tyler v. Cain, 533 U.S. 656, 663 (2001) (internal
quotation marks omitted).  The holding need not be contained in a
single case, however, as a combination of Supreme Court
holdings also can make a new rule retroactive. Id.
at 666. But "[m]ultiple cases can render a new rule
retroactive only if the holdings in those cases necessarily
dictate retroactivity of the new rule." Id.
Mullins contends that the Supreme Court has made
Davis retroactive to cases on collateral review
through its holdings in multiple cases, namely Welch v.
United States, 136 S.Ct. 1257 (2016), and
Davis. The government agrees with this contention.
Resp. of United States at 2-3.
O'Connor explained in her concurrence in Tyler
how the Supreme Court can be said to have made a new rule