In Re: THOMAS F. HOFFNER, JR., Petitioner
Argued: July 18, 2017
Application for Leave to File a Successive Habeas Petition
pursuant to 28 U.S.C. § 2255(h)(2) related to E.D. Pa.
No. 2-00-cr-00456 before the Honorable Harvey Bartle, III,
B. Freeland [ARGUED] Office of Federal Public Defender
Counsel for Petitioner
D. Lappen Robert A. Zauzmer [ARGUED] Emily McKillip Office of
United States Attorney Counsel for Respondent
Before: McKEE, AMBRO and RESTREPO, Circuit Judges.
RESTREPO, Circuit Judge.
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court held that the residual clause of the Armed
Career Criminal Act (ACCA) is unconstitutionally vague. An
identical residual clause existed until recently in the
Federal Sentencing Guidelines' career offender guideline,
U.S.S.G. § 4B1.2(a)(2). Petitioner Thomas Hoffner was
sentenced as a career offender based on this residual clause
in 2002. He seeks our authorization to challenge his sentence
via a successive habeas corpus petition, 28 U.S.C. §
ultimate question is whether Hoffner has a meritorious
vagueness claim under Johnson. But that is not the
question before us now. The only issue we must decide is
whether Hoffner has made a "prima facie showing, "
28 U.S.C. § 2244(b)(3)(C), of the pre-filing
requirements for a successive habeas corpus petition. To
answer this seemingly simple question, we must cover some
rocky terrain. We consider Johnson and its progeny,
as well as the pre-filing requirements for a second or
successive habeas petition. We conclude that Hoffner has made
a prima facie showing, and so we will authorize his
successive habeas petition.
Factual and Procedural Background
2002, Hoffner was convicted of conspiracy to distribute
methamphetamine, 21 U.S.C. § 846, distribution of
methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use
of a communication facility, 21 U.S.C. § 843(b). At
sentencing, the District Court applied the career offender
guideline, U.S.S.G. § 4B1.1, based upon two prior
convictions Hoffner incurred in Pennsylvania state court in
the 1980s. The first was for simple assault and the second
was for burglary, robbery and conspiracy. He was sentenced to
twenty years' imprisonment and five years' supervised
filed a direct appeal and a habeas corpus petition, which we
rejected. United States v. Hoffner, 96 F.App'x
85 (3d Cir. 2004); United States v. Hoffner, No.
00-cr-00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005),
appeal denied No. 05-5478 (3d Cir. July 18, 2006).
In 2012, he filed an unauthorized second habeas corpus
petition. In 2015, he filed the pro se motion before
us seeking to file a successive habeas corpus petition under
Johnson. We appointed counsel, requested briefing,
and held oral argument.
Johnson and Its Progeny
Johnson, the Supreme Court considered a due process
challenge to the residual clause of the ACCA, 18 U.S.C.
§ 924(e)(2)(B)(ii). The ACCA applies to a defendant
convicted of being a felon in possession of a firearm under
18 U.S.C. § 922(g). Ordinarily, "the law punishes
violation of this ban by up to 10 years'
imprisonment." Johnson, 135 S.Ct. at 2555
(citing 18 U.S.C. § 924(a)(2)). However, if a defendant
is an "armed career criminal, " the ACCA imposes a
mandatory minimum sentence of fifteen years and a statutory
maximum sentence of life. Id. (citing 18 U.S.C.
defendant is an "armed career criminal" if, in
relevant part, he "has three or more earlier convictions
for a 'serious drug offense' or a 'violent
felony.'" Id. (citing 18 U.S.C. §
924(e)(1)). Pre-Johnson, the definition of
"violent felony" had three clauses-one enumerating
offenses, one enumerating elements, and the residual clause.
18 U.S.C. § 924(e)(2)(B). The residual clause defined a
crime as a "violent felony" if it "otherwise
involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. §
924(e)(2)(B)(ii); see also Johnson, 135 S.Ct. at
Johnson, the Supreme Court struck the ACCA residual
clause as unconstitutionally vague. Johnson, 135
S.Ct. at 2563. The Court explained that the Fifth
Amendment's vagueness doctrine bars the Government from
"taking away someone's life, liberty, or property
under a criminal law so vague that it fails to give ordinary
people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement."
Id. at 2556. These principles apply to laws
"defining elements of crimes" or "fixing
sentences." Id. at 2557. The ACCA was a law
"fixing sentences." Beckles, 137 S.Ct. at
892. Its residual clause denied defendants "fair
notice" and "invite[d] arbitrary enforcement by
judges." Johnson, 135 S.Ct. at 2557. Thus,
Johnson held that "[i]ncreasing a
defendant's sentence under the clause denies due process
of law." Id.
Supreme Court quickly resolved the issue of
Johnson's retroactivity in Welch v. United
States, 136 S.Ct. 1257 (2016). Welch held that
Johnson is retroactive to cases on collateral
review. Id. at 1264.
Welch, the Supreme Court applied the retroactivity
test set forth in Teague v. Lane, 489 U.S. 288
(1989). Teague provides that "new
constitutional rules of criminal procedure" are
generally not retroactive to cases on collateral review.
Welch, 136 S.Ct. at 1264 (quoting Teague,
489 U.S. at 310). However, "two categories of decisions
. . . fall outside this general" retroactivity bar:
"new substantive rules" and "watershed rules
of criminal procedure." Id. (emphasis and
citations omitted). A procedural rule "regulate[s] only
the manner of determining the defendant's
culpability." Id. at 1265 (emphasis and
citation omitted). A substantive rule "alters the range
of conduct or the class of persons that the law
punishes." Id. at 1264-65 (citation
held that Johnson is a new "substantive"
rule because it alters "the substantive reach of the
[ACCA]" such that a defendant can no longer be sentenced
as an armed career criminal "based on" the residual
clause. Id. at 1265; see also Montgomery v.
Louisiana, 136 S.Ct. 718, 734 (2016). Conversely,
Johnson is not "procedural" because it
"had nothing to do with the range of permissible methods
a court might use to determine whether a defendant should be
sentenced under the [ACCA]." Welch, 136 S.Ct.
Johnson Challenges to the Career Offender
Johnson grew challenges to another residual clause,
the one contained in the career offender guideline. The
career offender guideline is a severe sentencing enhancement
for certain recidivist offenders. It "specif[ies] a
sentence to a term of imprisonment at or near the maximum
term." 28 U.S.C. § 994(h).
career offender guideline applies to a defendant where,
inter alia, "the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense" and "the defendant
has at least two prior felony convictions of either a crime
of violence or a controlled substance offense." U.S.S.G.
§ 4B1.1(a). Until recently, the career offender
guideline defined a "crime of violence" as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
Beckles v. United States, 137 S.Ct. 886, 890-91
(2017) (emphasis in original) (quoting U.S.S.G. §