Case: 19-10345     Document: 00515621458         Page: 1    Date Filed: 10/30/2020




               United States Court of Appeals
                    for the Fifth Circuit                       United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                 October 30, 2020
                                  No. 19-10345                    Lyle W. Cayce
                                                                       Clerk

   In re: Orlando Cordia Hall,

                                                                          Movant.



                         Motion for an order authorizing
                     the United States District Court for the
                      Northern District of Texas to consider
                    a successive 28 U.S.C. § 2255 application


   Before Dennis, Ho, and Oldham, Circuit Judges.
   James C. Ho, Circuit Judge:
          Over two decades ago, Orlando Cordia Hall and his conspirators
   kidnapped and then repeatedly raped a 16-year-old high school student.
   They then took turns beating her with a shovel, before covering her with
   gasoline and burying her alive. A jury convicted Hall of four federal crimes
   and sentenced him to death. His convictions have been repeatedly and
   unanimously upheld on appeal, both on direct review and in two federal
   habeas petitions. He now seeks authorization to file a third federal habeas
   petition.
          Among his four convictions, Hall was sentenced to death for the crime
   of kidnapping resulting in death. He does not challenge that conviction here,
   however. Instead, he challenges his conviction under 18 U.S.C. § 924(c) for
   carrying a firearm during a crime of violence. He argues, counterintuitively,
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                                     No. 19-10345


   that kidnapping resulting in death is somehow not a proper predicate “crime
   of violence” to support a § 924(c) conviction. We disagree.
          There are two ways for the Government to establish a “crime of
   violence” under 18 U.S.C. § 924(c)(3). A “crime of violence” includes any
   felony that either (A) “has as an element the use, attempted use, or
   threatened use of physical force against the person or property of another”
   (commonly known as the “elements” clause), or (B) “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” (commonly known as
   the “residual” clause).
          The Supreme Court recently held the residual clause to be
   unconstitutionally vague in Davis v. United States, 

(2019). So
   Hall hopes to challenge his § 924(c)(3) conviction by asking this court to
   apply Davis retroactively to his case. Because this is a successive federal
   habeas petition, however, he must show (among other things) that Davis has
   been “made retroactive to cases on collateral review by the Supreme Court.”
   28 U.S.C. § 2255(h)(2) (emphasis added).
          There is no need to reach the residual clause issue, because as we shall
   explain, kidnapping resulting in death plainly satisfies the elements clause of
   § 924(c)(3). In doing so, however, we observe that he may not be entitled to
   relief under the residual clause either. We acknowledge that, according to
   five of our sister circuits, Davis was “made retroactive . . . by the Supreme
   Court” through its previous ruling in Welch v. United States, 

   (2016). But we are not so sure. The Government did not contest the issue




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                                       No. 19-10345


   in any of those circuits, thus depriving those circuits of adversarial process. 1
   Moreover, at least seven members of the federal judiciary—three of our
   colleagues and four Justices of the Supreme Court—have made clear that
   rulings such as Davis are not automatically retroactive, and thus must be
   made retroactive by the Supreme Court in a future case to comply with
   provisions such as 28 U.S.C. § 2255(h)(2).
          We do not ultimately reach the residual clause issue, however,
   because we conclude that kidnapping resulting in death satisfies the elements
   clause of § 924(c)(3). Accordingly, we deny Hall authorization to proceed
   on this successive habeas petition.
                                            I.
          Hall’s conspirators violently kidnapped a 16-year-old high school
   student, Lisa Rene, inside her apartment. United States v. Hall, 

,
   389 (5th Cir. 1998). They tackled and dragged Rene to a car, where Hall was
   waiting and where he raped her. Hall and his conspirators then took Rene
   from Arlington, Texas to Pine Bluff, Arkansas.

Hall and his conspirators rented a motel room, where
   they tied their victim to a chair and raped her repeatedly.

least
   one conspirator were armed with handguns.

conspirators
   decided that Rene “kn[e]w too much,” and so they went to Byrd Lake Park
   to dig a grave.

Hall and his conspirators blindfolded Rene
   and took her to the grave site.

There, they beat her over the head


          1
             Nor did the Government contest the issue before our court. So we appointed
   amicus curiae here to present the opposing view—just as the Supreme Court did in
   Welch. Notably, the Government made clear during oral argument that it had no
   institutional objection to the contention by amicus that Davis is not retroactive for
   purposes of 28 U.S.C. § 2255(h)(2).
          We thank amicus curiae for his excellent brief and oral argument.




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                                     No. 19-10345


   with a shovel.

tried to escape, but they caught her and
   took turns beating her with a shovel.

conspirators covered
   Rene in gasoline and they then buried her alive.

Hall and his conspirators were arrested and charged
   with Lisa Rene’s kidnapping resulting in death.

of
   four crimes: kidnapping resulting in death (death sentence), conspiracy to
   commit kidnapping (life imprisonment), traveling interstate to distribute
   drugs (sixty months served concurrently with the life sentence), and carrying
   a firearm during a crime of violence (sixty months to be served consecutively
   to the other sentences).

convictions occurred in 1995, and he brought his first
   § 2255 motion in 2002. Hall v. United States, 

, at *1 (N.D.
   Tex. Aug. 24, 2004). The district court denied Hall’s motion, and our court
   denied his request for a certificate of appealability. United States v. Hall,
   

(5th Cir. 2006). We also denied Hall’s 2016 motion to file a
   second habeas petition. In re Hall, No. 16-10670, slip op. at *3 (5th Cir. June
   20, 2016).
          Hall now seeks authorization to file a third habeas petition under
   28 U.S.C. § 2255 to challenge his yet-unserved sixty-month sentence for
   carrying and using a firearm during a crime of violence. He argues that Davis
   v. United States, 

(2019), which set aside the residual clause of
   § 924(c)(3), requires that his conviction for carrying a firearm during a crime
   of violence also be set aside—and that vacatur of his § 924(c) conviction
   would somehow require vacatur of his death sentence as well. As we shall
   demonstrate, however, Davis left intact the elements clause of § 924(c), and
   the crime of kidnapping resulting in death falls within the elements clause.




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                                     No. 19-10345


                                         II.
          To satisfy the elements clause, a crime of violence must have as a
   required element “the use . . . of physical force.” 18 U.S.C. § 924(c)(3)(A).
   The Supreme Court has defined “physical force” in this context to mean
   “violent force—that is, force capable of causing physical pain or injury to
   another person.” Johnson v. United States, 

, 140 (2010). And
   “force” includes “direct” and “indirect force,” as well as “knowing or
   reckless conduct.” United States v. Reyes-Contreras, 

, 182–83
   (5th Cir. 2018) (en banc).
          Courts use the categorical approach to determine whether an offense
   fits within § 924’s elements clause. See, e.g.

That “requires us
   first to identify the crime of conviction.”

only to the
   statutory definitions’—i.e., the elements—of [an offense], and not ‘to the
   particular facts underlying those convictions.’” Descamps v. United States,
   

, 261 (2013) (quoting Taylor v. United States, 

, 600
   (1990)). Elements are the parts of a crime that the “prosecution must prove
   to sustain a conviction.” Mathis v. United States, 

, 2248 (2016)
   (quoting Black’s Law Dictionary 634 (10th ed. 2014)).
          When a statute lists multiple elements of conviction in the alternative,
   it is “divisible” into different offenses.

To determine which
   offense formed the basis for the conviction, courts look to the trial record,
   “including charging documents, plea agreements, transcripts of plea
   colloquies, findings of fact and conclusions of law from a bench trial, and jury
   instructions and verdict forms”—a process known as the “modified categorical
   approach.” 

(emphases added). See also Shepard v.
   United States, 

(2005).
          The federal kidnapping resulting in death provision involves different
   elements of conviction from the general federal crime of kidnapping—




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                                     No. 19-10345


   namely, the additional requirement that “the death of [a] person results”—
   and triggers an enhanced penalty. 18 U.S.C. § 1201(a). Accordingly, we
   conclude that kidnapping resulting in death is a different offense than generic
   kidnapping. See, e.g., Burrage v. United States, 

, 210 (2014)
   (“Because the ‘death results’ enhancement increased the minimum and
   maximum sentences to which Burrage was exposed, it is an element.”);
   United States v. Ruiz-Hernandez, 

, 210 (5th Cir. 2018) (similar).
          Kidnapping resulting in death has as an element “the use . . . of
   physical force” as required under 18 U.S.C. § 924(c)(3)(A). We note that
   the Eighth Circuit recently reached the same conclusion. See United States
   v. Ross, 

, 839 (8th Cir. 2020) (“Because the offense of
   kidnapping resulting in death has as an element the use of force, it is a crime
   of violence under § 924(c).”). And for good reason.
          The “use of force” is not limited to the intentional or knowing use of
   force—it also includes conduct that recklessly disregards the risk of injury to
   another person. See, e.g., Voisine v. United States, 

, 2279
   (2016) (“[T]he word ‘use’ does not demand that the person applying force
   have the purpose or practical certainty that it will cause harm, as compared
   with the understanding that it is substantially likely to do so. . . . [T]hat word
   is indifferent as to whether the actor has the mental state of intention,
   knowledge, or recklessness with respect to the harmful consequences of his
   volitional conduct.”); 

(“[T]he ‘use of force’
   does not require intent because it can include knowing or reckless
   conduct.”).
          This principle should decide this case, for it seems obvious that the
   act of kidnapping, and especially kidnapping resulting in death, necessarily
   contemplates the reckless disregard of the risk of serious injury to the victim.
   Judge Colloton put the point well, when he stated: “Reckless disregard for




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                                      No. 19-10345


   human life is inherent in the commission of felonies such as robbery and
   kidnapping that carry a grave risk of death.” 

(emphasis
   added). After all, “intentional kidnapping necessarily involves ‘a deliberate
   decision to endanger another’ that amounts to recklessness.”

S. Ct. at 2279)). So “[w]here a perpetrator intentionally kidnaps
   a victim, and the kidnapping results in the victim’s death, the perpetrator’s
   mental state is sufficient to show that he necessarily ‘used’ force against the
   victim.”

the Eighth Circuit decision was not unanimous.
   As the dissent there acknowledged, “[s]hooting someone multiple times in
   the course of a kidnapping sure sounds like a ‘crime of violence.’”

   (Stras, J., dissenting). But “[s]uppose that an individual gets in a car with a
   person impersonating an Uber driver and dies, either in a tragic car accident
   caused by the driver’s recklessness or by jumping out after discovering the
   driver’s true identity.        Both scenarios qualify as kidnapping by
   ‘inveigle[ment]’ or ‘decoy[ ],’ and each ‘results’ in death. And critically,
   neither involves the use of force.”

we disagree that these hypothetical scenarios do not involve the
   use of force. We agree instead with Judge Colloton, who responds: “If a
   kidnapper inveigles a victim into his car and then causes her death by
   recklessly crashing the vehicle or prompting the victim to flee from the
   speeding car, the kidnapper’s offense involves the use of force against the
   victim.”

As he puts it, “[f]orce is necessary to kill the victim when
   she slams into the windshield or the pavement.”

   of force is not an accident: when the perpetrator intentionally deceives and
   kidnaps the victim, he makes a deliberate decision to endanger her and acts
   with reckless disregard for her safety.”

defendant uses
   force in keeping the victim against her will—and that act undoubtedly creates
   a serious risk that she will die trying to break free.



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                                      No. 19-10345


          So we have no difficulty concluding that kidnapping resulting in death
   entails the kind of reckless conduct contemplated by the “use of force”
   required under 18 U.S.C. § 924(c)(3)(A). Nor do we see any real risk that
   the federal kidnapping statute could be read to cover conduct short of
   recklessness. Indeed, every case within our circuit involving the crime of
   kidnapping resulting in death has involved at least reckless conduct. See, e.g.,
   United States v. Webster, 

, 322 (5th Cir. 1998); United States v.
   Whitmore, 386 F. App’x 464, 467–68 (5th Cir. 2010). So even if there were
   such a thing as “negligent” kidnapping—even if there were “a theoretical
   possibility” that a defendant could commit the crime of kidnapping resulting
   in death without knowingly, intentionally, or even recklessly employing
   physical force—there is no “realistic probability . . . that the [Government]
   would apply [the] statute to [such] conduct.” United States v. Castillo-
   Rivera, 

, 222 (5th Cir. 2017) (en banc) (quoting Gonzales v.
   Duenas-Alvarez, 

, 193 (2007)).
          This conclusion is further reinforced by the fact that Hall was charged
   with the capital crime of kidnapping resulting in death. As in any federal
   capital case, Hall’s charging documents expressly incorporated the federal
   capital statute. See 18 U.S.C. § 3591(a)(2); see also 

   (noting that a “superseding indictment containing capital charges was
   returned on November 22, 1994”). So did the jury instructions. The trial
   judge instructed jurors that they “must as a preliminary matter unanimously
   agree that the government has proven beyond a reasonable doubt that the
   defendant, Orlando Cordia Hall . . . intentionally killed the victim” under
   18 U.S.C. § 3591(a)(2). United States v. Hall, 4:94-CR-121-Y-2, Dkt. 458 at
   4–5 (N.D. Tex., Nov. 3, 1995).
          Any offense that incorporates the elements of 18 U.S.C. § 3591(a)(2)
   is a crime of violence. After all, that statute makes clear that no federal capital
   sentence shall be issued unless it is “determined beyond a reasonable doubt”



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                                      No. 19-10345


   that the defendant “(A) intentionally killed the victim; (B) intentionally
   inflicted serious bodily injury that resulted in the death of the victim; (C)
   intentionally participated in an act, contemplating that the life of a person
   would be taken or intending that lethal force would be used in connection
   with a person, other than one of the participants in the offense, and the victim
   died as a direct result of the act; or (D) intentionally and specifically engaged
   in an act of violence, knowing that the act created a grave risk of death to a
   person, other than one of the participants in the offense, such that
   participation in the act constituted a reckless disregard for human life and the
   victim died as a direct result of the act.” 18 U.S.C. § 3591(a)(2). Any one of
   these provisions satisfies the elements clause of 18 U.S.C. § 924(c).
             In sum, all federal capital charges must incorporate the required
   elements of § 3591(a)(2), and therefore necessarily satisfy the elements
   clause of § 924(c).       So we have no difficulty concluding that capital
   kidnapping resulting in death is a crime of violence under the elements
   clause.
             Hall’s challenge to his § 924(c) conviction therefore fails. Davis set
   aside § 924(c)(3)’s residual clause as unconstitutionally vague. Davis, 139 S.
   Ct. at 2324. But it had no effect on convictions under the elements clause.
                                          III.
             We uphold Hall’s § 924(c) conviction under the elements clause.
   Moreover, it is far from clear that Hall would be entitled to relief under the
   residual clause in any event.
             We acknowledge that five of our sister circuits have held Davis
   retroactively applicable to successive habeas petitions, notwithstanding the
   express statutory requirement that the new rule of constitutional law has
   been “made retroactive to cases on collateral review by the Supreme Court.”
   28 U.S.C. § 2255(h)(2) (emphasis added). See King v. United States, 

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                                     No. 19-10345


   60, 64 (1st Cir. 2020); In re Mullins, 

, 979 (10th Cir. 2019); In re
   Matthews, 

, 301 (3rd Cir. 2019); In re Hammoud, 

,
   1039 (11th Cir. 2019); see also In re Franklin, 

, 910 (6th Cir. 2020)
   (“Lower courts may determine on their own the retroactivity of new rules when
   ‘[m]ultiple cases . . . necessarily dictate the retroactivity of the new rule.’”)
   (emphasis added) (quoting Tyler v. Cain, 

, 664 (2001)).
          But none of those courts received adversarial briefing on the issue. Cf.
   Lankford v. Ohio, 

, 127 (1991) (recognizing “the critical role that
   the adversary process plays in our system of justice”). What’s more, in In re
   

, the first case to assume Davis’s retroactivity, the
   Government never even mentioned Davis. And in subsequent cases, the
   Government has simply followed Hammoud.
          Adversarial briefing might very well have altered the outcome in those
   other circuits. In fact, at least seven respected jurists have concluded that
   decisions like Davis are not automatically retroactive—and thus must be
   made retroactive by the Supreme Court in a future case to satisfy provisions
   such as 28 U.S.C. § 2255(h)(2). In Pisciotta v. Harmon, 748 F. App’x 634
   (5th Cir. 2019) (per curiam), three of our colleagues rejected the argument
   that Sessions v. Dimaya, 

(2018), is by itself retroactively
   available on collateral review. See Pisciotta, 748 F. App’x at 635 (“Dimaya
   did not address whether its holding might apply retroactively on collateral
   review”). There is no principled distinction between Dimaya and Davis, and
   Hall does not claim otherwise. Similarly, four Justices indicated (and none
   of their colleagues disagreed) that it would take a future ruling to determine
   whether Davis is retroactive, stating: “[W]ho knows whether the ruling [in




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                                        No. 19-10345


   Davis] will be retroactive?” 

(Kavanaugh, J.,
   dissenting). 2
           If these seven jurists are right, then their conclusion presents yet
   another fatal flaw to Hall’s successive petition. After all, his successive
   petition cannot proceed unless Davis has been “made retroactive . . . by the
   Supreme Court.” 28 U.S.C. § 2255(h)(2). To be sure, the Supreme Court
   has made clear in dicta that the “right combination of holdings” can make a
   holding retroactive. 

. But those prior holdings must
   “necessarily dictate” retroactivity of the new rule.

could easily read Welch and conclude that Davis’s
   retroactivity logically follows. But that is different from saying that Welch
   necessarily dictates that outcome. A reasonable jurist might well predict that
   the Supreme Court would make Davis retroactive if asked. But a successive
   habeas petition may proceed only if Davis has been “made retroactive . . . by
   the Supreme Court,” 28 U.S.C. § 2255(h)(2)—not if everyone merely agrees
   the Supreme Court will make it retroactive. If it takes further legal analysis
   to decide the retroactivity question—as at least seven respected members of
   the federal judiciary have concluded—then the requirements of 28 U.S.C.
   § 2255(h)(2) have not been met.
          But this issue will remain for another day. Hall’s § 924(c) conviction
   falls within the elements clause. We deny Hall authorization to proceed on
   his successive habeas petition for that reason.




           2
               We recently relied on the separate writings of various justices to help
   demonstrate that a ruling has not been made retroactive by the Supreme Court. See In
   re Sharp, 

, 528 (5th Cir. 2020) (per curiam) (citing Ramos v. Louisiana, 

, 1407 (2020) (plurality opinion);

(Kavanaugh, J., concurring in
   part);

(Alito, J., dissenting)).




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                                    No. 19-10345


                                         IV.
          The dissent accuses us of committing a “host of grievous errors” in
   this “federal death penalty case.”
          But this proceeding has nothing to do with Hall’s death sentence. Hall
   was convicted and sentenced to death for the crime of federal kidnapping
   resulting in death under 18 U.S.C. § 1201(a). And notably, Hall does not
   question the validity of that conviction, or the resulting sentence of death,
   anywhere in this proceeding. Instead, Hall brings this third petition to
   challenge only his separate conviction under 18 U.S.C. § 924(c) for carrying
   a firearm during a crime of violence, for which he was separately sentenced
   to 60 months imprisonment.
          Nor do we see any error in that 60-month sentence. To begin with, as
   we explain, that 60-month sentence is fully supported under the elements
   clause of § 924(c). In fact, we adopt precisely the same approach as the
   Eighth Circuit in concluding that kidnapping resulting in death inherently
   involves conduct in reckless disregard to human life, and thereby satisfies the
   elements clause of § 924(c). See 

. And we follow our
   own en banc precedent in concluding that there is no “realistic probability”
   that a defendant could be prosecuted for kidnapping resulting in death based
   on anything less than reckless conduct. See 

.
   The dissent would simply prefer that we ignore circuit decisions on both of
   these points.
          The dissent also criticizes our reliance on 18 U.S.C. § 3591(a)(2), the
   federal death penalty statute.       Specifically, the dissent accuses us of
   misreading § 3591(a)(2)(C)—claiming that that provision requires only
   participation in “an act,” and not participation in “an act of violence.” But
   that ignores nearly the entire text of § 3591(a)(2)(C).       That provision
   authorizes the death penalty only if the defendant “intentionally participated




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                                          No. 19-10345


   in an act, contemplating that the life of a person would be taken or intending that
   lethal force would be used in connection with a person, other than one of the
   participants in the offense, and the victim died as a direct result of the act.”
   18 U.S.C. § 3591(a)(2)(C) (emphasis added). Read in full, § 3591(a)(2)(C)
   plainly involves the use of force. The dissent claims that its atextual reading
   of § 3591(a)(2)(C) is somehow supported by our decision in United States v.
   Williams, 

(5th Cir. 2010). It is not—indeed, Williams does not
   even involve § 3591(a)(2)(C). See

(“In Williams’s case, the sole
   threshold intent submitted to the jury during the eligibility phase was that
   contained in 18 U.S.C. § 3591(a)(2)(D).”). 3
           And as for the dissent’s criticism of our discussion of the residual
   clause, it ignores the fact that we are simply agreeing with seven respected
   members of the judiciary that decisions like Davis are not automatically
   retroactive and therefore must be made retroactive by the Supreme Court in


           3
             The dissent also implies that it is somehow improper for us to decide this case
   based on the elements clause. It observes in passing that “Hall was charged, tried, and
   convicted by a jury that was instructed on the definition of that residual clause”—
   implying (without explanation) that the issue is somehow waived, and that we therefore
   may not deny authorization for Hall’s third habeas petition based on the elements
   clause. There are at least two problems with this theory. First, the dissent neglects to
   mention that the trial court instructed the jury on the elements clause as well as the
   residual clause. To quote the court’s instructions to the jury: “The term ‘crime of
   violence’ means an offense that is a felony and—(A) has as an element the use of
   physical force against the person or property of another, or (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.” United States v. Hall, 4:94-CR-
   121-Y-2, Dkt. 444 at 10 (N.D. Tex. Oct. 31, 1995). Second, even if Hall was originally
   convicted based on the residual clause, we have held that any such error is “harmless”
   so long as the conviction can be upheld under the elements clause. See, e.g., United
   States v. Griffin, 

, 761 (5th Cir. 2020) (although “the district court
   recognized that it relied on the residual clause at Griffin’s 2008 sentencing . . . reliance
   on the residual clause was harmless if Griffin’s three convictions also satisfied the
   other, still-valid definitions of ‘violent felony.’”).




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                                     No. 19-10345


   a future case to satisfy 28 U.S.C. § 2255(h)(2). See Pisciotta, 748 F. App’x at
   635; 

(Kavanaugh, J., dissenting). Instead, the
   dissent criticizes us for neglecting our decision in In re Sparks, 

,
   261–62 (5th Cir. 2011). But Sparks confirms our point here—that to satisfy
   28 U.S.C. § 2255(h)(2), “multiple holdings” taken together must
   “necessarily dictate” that a new rule announced by the Supreme Court
   applies retroactively.

. Moreover, nothing in Sparks allows us to
   ignore the conclusion of seven respected jurists that decisions like Davis and
   Dimaya have not been previously made retroactive by the Supreme Court.
                                        ***
          It has been over two decades since Hall was sentenced to death for the
   brutal killing of an innocent 16-year-old. His conviction has been repeatedly
   affirmed on appeal, under both direct review and following multiple habeas
   petitions. It is time—indeed, long past time—for these proceedings to end.
   Hall’s request for authorization to proceed on his successive habeas petition
   is denied.




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                                     No. 19-10345


   James L. Dennis, Circuit Judge, dissenting:
          In this federal death penalty case, the majority commits a host of
   grievous errors to arrive at its conclusion that movant Orlando Hall fails to
   satisfy the standards for authorization to file a successive habeas petition.
   First, the majority decides that the 18 U.S.C. § 924(c) conviction that Hall
   challenges as unconstitutional can be sustained because, in its view, Hall’s
   predicate crime of violence (COV) for kidnapping “plainly satisfies” the
   elements clause of § 924(c). Thus, the majority decides that, despite §
   924(c)’s residual clause having been declared unconstitutional in United
   States v. Davis, 

(2019), and despite the fact that Hall was
   charged, tried, and convicted by a jury that was instructed on the definition
   of that residual clause, that Hall’s trial and conviction could not possibly have
   been affected by the invalidity of § 924(c)’s residual clause. Lacking any on-
   point precedent for denying Hall’s claim, the majority reaches its erroneous
   conclusion only by concocting a far more onerous requirement for
   authorization than the statutorily-mandated prima facie standard and thus
   erects an unprecedented barrier to authorization. Second, after arriving at its
   unjustified decision, the majority reels out several pages of dicta that
   wrongfully and needlessly cast doubt on the unanimous holdings of all four
   of our sister circuits that have decided that the rule announced in Davis
   applies retroactively so as to authorize successive habeas petitions. In doing
   so, the majority advances an eccentric reading of 28 U.S.C. § 2255(h)(2), the
   provision governing the requirements for authorization, that is contrary not
   only to our well-established circuit precedent but also to the holdings of every
   other circuit court.
          Because I would follow binding circuit precedent in this capital case
   and join four other federal courts of appeal in holding that Davis applies
   retroactively to successive habeas petitions, and because Hall has made “a
   sufficient showing of possible merit” that he can benefit from that decision,




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                                     No. 19-10345


   Reyes-Requena v. United States, 

, 899 (5th Cir. 2001) (internal
   quotation marks omitted), I would grant his motion for authorization. The
   majority errs in holding otherwise, so I must respectfully dissent.
                                          I.
          To receive authorization to file a successive habeas petition, Hall must
   make a “prima facie” showing that his claim relies on “a new rule of consti-
   tutional law, made retroactive to cases on collateral review by the Supreme
   Court, that was previously unavailable.” 28 U.S.C. §§ 2244(b)(3)(C),
   2255(h)(2). A prima facie showing is “simply a sufficient showing of possible
   merit to warrant a fuller exploration by the district court.” 

. Hall claims that his conviction for carrying a firearm during
   a COV is invalid under the Supreme Court’s recent decision in Davis, which
   declared void for vagueness § 924(c)’s “residual clause.” Having identified
   Davis as the case on which he relies, the first question is whether that decision
   has been “made retroactive to cases on collateral review by the Supreme
   Court.” § 2255(h)(2).
          In Teague v. Lane, 

, 311 (1989), the Supreme Court
   announced two types of rules that should be applied retroactively to cases on
   collateral review: substantive rules of constitutional law (the first Teague
   exception) and watershed rules of criminal procedure (the second Teague
   exception). This case implicates only the first Teague exception.
          “Substantive rules . . . set forth categorical constitutional guarantees
   that place certain criminal laws and punishments altogether beyond the
   State’s power to impose.” Montgomery v. Louisiana, 136 S. Ct.718, 729
   (2016); see also 

(explaining that substantive rules are
   those that “place[] certain kinds of primary, private individual conduct
   beyond the power of the criminal law-making authority to proscribe.”
   (internal quotation marks omitted)). And “[c]ourts must give retroactive




                                          16
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                                     No. 19-10345


   effect to new substantive rules of criminal law.” 

, 736 (holding that Miller v. Alabama, 

(2012), which held as
   unconstitutional mandatory life imprisonment without parole for juvenile
   offenders, announced a new substantive rule of constitutional law that must
   be given retroactive effect).
          In United States v. Reece, 

, 635 (5th Cir. 2019), we held
   that the Supreme Court’s decision in Davis was substantive and thus applied
   retroactively to a first habeas petition. “[T]he rule announced in Davis meets
   the standard for a new substantive rule,” we reasoned, because its
   invalidation of § 924(c)’s residual clause “narrow[ed] the scope of conduct
   for which punishment is now available.”
          Our conclusion was reinforced by the Supreme Court’s twin decisions
   in Johnson v. United States, 

(2015), and Welch v. United States,
   

(2016). In Johnson, the Court declared that the residual clause
   of the Armed Career Criminal Act (ACCA)—which is worded similarly to
   the residual clause in § 924(c)—was void for 

.
   Then, in Welch, the Court held that Johnson established a substantive rule,
   because it limited the “substantive reach of the A[CCA], altering the range
   of conduct or the class of persons that the Act punishes.” 

(cleaned up). Because Johnson announced a substantive rule, the
   Welch Court held that it “has retroactive effect . . . in cases on collateral
   review.”

recognized, “operates in much the same way” as
   Johnson. 

. “[T]he residual clause [of §924(c)] allows
   for punishment of certain offenses that the elements clause cannot otherwise
   reach. Consequently, the residual clause’s invalidation narrows the scope of
   conduct for which punishment is now available.”

                                          17
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                                        No. 19-10345


   like Johnson, narrows the scope of punishable conduct, it too is “a substantive
   decision and so has retroactive effect.” 

.
          As noted, Reece was decided within the initial habeas petition context,
   and therefore considered under 28 U.S.C. § 2255(f)(3) whether the right
   “recognized by the Supreme Court” in Davis had been “made retroactively
   applicable to cases on collateral review.” § 2255(f)(3). Motions, like Hall’s,
   for authorization to file a successive habeas petition are governed by 28 U.S.C.
   § 2255(h)(2); this provision contains slightly different statutory language
   from § 2255(f)(3), requiring that a movant rely on a “new rule of constitu-
   tional law, made retroactive to cases on collateral review by the Supreme
   Court.”

added). The question, then, becomes
   whether the Supreme Court has “made [Davis] retroactive.”

ways the Court can make “a new rule . . . retroactive
   within the meaning of § 2255(h)(2) [:] (1) the Supreme Court itself must . . .
   expressly h[o]ld that the new rule is retroactive on collateral review, or (2)
   the Supreme Court’s holdings in multiple cases . . . must necessarily dictate
   retroactivity of the new rule.” In re Hammoud, 

, 1038–39 (11th
   Cir. 2019) (cleaned up) (quoting Tyler v. Cain, 

, 666 (2001)). 4
   Though the first possibility has not yet occurred with respect to Davis, I
   would conclude—like every other court that has considered this question—
   that Davis’s retroactivity is “necessarily dictate[d]” by the Court’s hold-
   ings.” 

.
          In her concurrence in Tyler v. Cain, Justice O’Connor employed a syl-
   logism to demonstrate how, despite the absence of an express holding by the


          4
             “Although Tyler was decided in the context of a successive petition filed by a
   state prisoner and interprets 28 U.S.C. § 2244(b)(2)(A), the decision applies with equal
   force to the identically worded § 2255(h)(2) standard.” In re Sparks, 

, 260
   n.2 (5th Cir. 2011) (per curiam).




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                                     No. 19-10345


   Court that a rule applies retroactively, “multiple holdings” taken together
   can “logically dictate the retroactivity of [a] new rule”:
          if we hold in Case One that a particular type of rule applies ret-
          roactively to cases on collateral review and hold in Case Two
          that a given rule is of that particular type, then it necessarily
          follows that the given rule applies retroactively to cases on col-
          lateral review. In such circumstances, we can be said to have
          “made” the given rule retroactive to cases on collateral review.

(O’Connor, J., concurring). Applying this syllogism, Justice
   O’Connor noted that the Court in Teague had determined that “a new rule
   should be applied retroactively if it places certain kinds of primary, private
   individual conduct beyond the power of the criminal law-making authority to
   proscribe.”

(quoting 

). Teague, then, was
   “Case One” in Justice O’Connor’s syllogism. “When the Court holds as a
   new rule in a subsequent case”—a case following Teague—“that a particular
   species of primary, private individual conduct is beyond the power of the
   criminal lawmaking authority to proscribe, it necessarily follows that this Court
   has ‘made’ that new rule retroactive to cases on collateral review.”

In other words, after Teague, whenever the Supreme Court
   announces a substantive rule—that is, one that “places certain kinds of pri-
   mary, private individual conduct beyond the power of the criminal lawmaking
   authority to proscribe,” 

—that rule necessarily has
   been made retroactive by the Court.
          In In re Sparks, 

, 262 (5th Cir. 2011), we applied Justice
   O’Connor’s logic in holding that a substantive rule set forth by the Supreme
   Court necessarily had been made retroactive by the Court. There, a juvenile
   non-homicide offender who had been sentenced to life imprisonment without
   the possibility of parole moved for authorization to file a successive § 2255
   petition.   

.        He argued that his sentence was




                                          19
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                                     No. 19-10345


   unconstitutional under the Supreme Court’s decision in Graham v. Florida,
   

(2010), which barred life without parole for the movant’s class.

We granted authorization, holding that Graham established a sub-
   stantive rule and, consequently, applied retroactively.

-62. The rule
   in Graham, we explained, fell under the first Teague exception, i.e., presented
   a substantive rule, because it “prohibit[ed] a certain category of punishment
   for a class of defendants because of their status or offense.”

(quot-
   ing Penry v. Lynaugh, 

, 330, overruled on other grounds by Atkins
   v. Virginia, 

(2002)). Under the retroactivity principles articu-
   lated by Justice O’Connor in Tyler, “the combined effect of the holding of
   Graham itself and the first Teague exception,” was that the Supreme Court,
   “as a matter of logical necessity,” had “made [Graham] retroactive on col-
   lateral review.”

Put simply, Teague’s rule that substantive deci-
   sions apply retroactively plus Graham’s announcement of a substantive rule
   meant that the Court had “made” Graham retroactive within the meaning of
   § 2255(h)(2), even though it had not explicitly said so. See

necessary to the decision in Sparks was application of
   Justice O’Connor’s syllogism. See

of that syllogism
   formed part of Sparks’s holding, we are bound to follow it as this case is in-
   distinguishable from Sparks for retroactivity purposes. Applying Justice
   O’Connor’s syllogism here, it is clear that Davis applies retroactively. Again,
   the first Teague exception (Case One) establishes that substantive rules nec-
   essarily apply retroactively. And Davis (Case Two) announces a substantive
   rule for the reasons set forth above. Therefore, Davis must apply retroac-
   tively to successive habeas petitions. See 

.
          Conspicuously failing even to cite Sparks—despite the fact that both
   parties and appointed amicus discuss it repeatedly—the majority implies that
   the requirements for authorization under § 2255(h)(2) are met only if the Su-
   preme Court has expressly held that a rule applies retroactively. As the



                                         20
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                                     No. 19-10345


   majority puts it, if any “further legal analysis” is required beyond mere ap-
   plication of a Supreme Court pronouncement that a rule applies retroac-
   tively, then § 2255(h)(2) is not satisfied. Maj. Op. at 11. That erroneous
   assertion cannot be squared with Sparks. Under the rule of orderliness, we
   are obliged to follow Sparks and, in turn, Justice O’Connor’s concurrence in
   Tyler. Those teachings lead to the inescapable conclusion that Davis applies
   retroactively to successive habeas petitions.
          This determination, moreover, accords with that reached by every
   federal court of appeals to have decided Davis’s retroactive application to
   successive habeas petitions. See In re Mullins, 

(10th Cir. 2019);
   In re Matthews, 

(3d Cir. 2019); In re 

-
   39; In re Franklin, 

(6th Cir. 2020) (mem.). The Sixth, Tenth,
   and Eleventh Circuits all relied on Tyler’s instruction that the combination
   of multiple Supreme Court decisions can dictate retroactivity. See In re
   

; In re 

; In re Ham-
   

. As the Sixth Circuit explained:

          The Supreme Court’s decision in Welch . . . establishes the ret-
          roactivity of Davis. Welch explained that decisions announce a
          substantive rule and are thus retroactive when they alter the
          range of conduct . . . that the law punishes. That occurred in
          Johnson v. United States because it changed the substantive
          reach of the Armed Career Criminal Act. So too in Davis,
          where the Court narrowed § 924(c)(3) by concluding that its
          second clause was unconstitutional.”
   In re 

–11 (cleaned up); see also In re 

(“Because Davis has the same limiting effect on the range of conduct
   or class of people punishable under § 924(c) that Johnson has with respect to
   the ACCA, Welch dictates that Davis—like Johnson—‘announced a substan-
   tive rule that has retroactive effect in cases on collateral review.’” (quoting
   

)). The reasoning of these courts clearly refutes the




                                          21
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                                      No. 19-10345


   majority’s contention that Davis’s retroactivity is not necessarily dictated by
   Welch.
            In light of the foregoing, it is unsurprising that the Government agrees
   with the analysis that Davis applies retroactively; any other position would
   be contrary to logic and binding circuit precedent. Of course, the Govern-
   ment’s concession does not bind courts, but it is notable that other circuits
   have found such a concession sufficient reason alone to give a rule retroactive
   application. See In re 

(accepting the Government’s
   concession of Davis’s retroactivity as sufficient to conclude for authorization
   purposes that the Supreme Court had made the case retroactive); Woods v.
   United States, 

, 1154 (8th Cir. 2015) (per curiam) (“Based on
   the government’s concession [of the retroactivity of Johnson], we conclude
   that Woods has made a prima facie showing that his motion contains ‘a new
   rule of constitutional law, made retroactive to cases on collateral review by
   the Supreme Court, that was previously unavailable.’” (quoting §
   2255(h)(2)).
            Based on the reasons above, I conclude that Davis has been “made
   retroactive . . . by the Supreme Court.” § 2255(h)(2). I proceed, then, to
   determine whether Hall can make “a sufficient showing of possible merit”
   that he can benefit from Davis. 

.
                                           II.
            Hall can receive authorization to file a successive habeas application if
   he “‘makes a prima facie showing that [his] application satisfies the require-
   ments of’ [28 U.S.C.] § 2244(b).” In re Salazar, 

, 431 (5th Cir.
   2006) (per curiam) (quoting 28 U.S.C. § 2244(b)(3)(c)). Under 28 U.S.C. §
   2244(b)(2), Hall must show that his “claim relies on a new rule of constitu-
   tional law, made retroactive to cases on collateral review by the Supreme
   Court, that was previously unavailable.” In other words, Hall needs to make
   a prima facie showing that his claim relies on Davis. See In re Morris, 

Case: 19-10345     Document: 00515621458            Page: 23   Date Filed: 10/30/2020




                                     No. 19-10345


   739, 740 (5th Cir. 2003). Though Davis invalidated the residual clause of §
   924(c), it left intact its elements clause, see 18 U.S.C. § 924(c)(3)(A). To
   benefit from Davis’s rule, then, Hall must make a prima facie showing that
   he was convicted under § 924(c)’s residual clause. As explained below, he
   meets this minimal standard. See 

(explaining
   that a “prima facie showing” is “simply a sufficient showing of possible merit
   to warrant a fuller exploration by the district court”).
          Under the modified categorical approach, I agree with the majority
   that Hall was convicted of kidnapping resulting in death, an offense distinct
   from generic kidnapping. See 18 U.S.C. § 1201(a); Maj. Op. at 6. But I depart
   from its conclusion that this conviction means that Hall is precluded from
   benefiting from Davis. First, § 1201(a), which defines the federal kidnapping
   offense, criminalizes conduct that does not have “as an element the use, at-
   tempted use, or threatened use of physical force” and thus does not satisfy §
   924(c)’s elements clause. § 924(c)(3)(A). See United States v. Walker, 

, 379 (4th Cir. 2019) (“Accordingly, because . . . 18 U.S.C. § 1201(a)
   may be committed without violence, kidnapping clearly does not categori-
   cally qualify as a crime of violence under the force [or elements] clause, §
   924(c)(3)(A).”); cf. United States v. Taylor, 

, 491 (1st Cir. 2017)
   (noting that “[t]he government admit[ted] that kidnapping” under § 1201(a)
   “cannot” qualify as a crime of violence under the force clause); Knight v.
   United States, 

, 497 (6th Cir. 2019) (“The government concedes
   that under Davis kidnapping in violation of 18 U.S.C. § 1201(a) is not a ‘crime
   of violence’ and thus Knight’s conviction under § 924(c) for using a firearm
   during and in relation to kidnapping must be vacated.”); BLACK’S LAW DIC-
   TIONARY (10th ed. 2014) (defining “inveigle” as “[t]o lure or entice through
   deceit or insincerity”). Section 1201(a) kidnapping, then, is not categorically
   a COV under § 924(c)’s elements clause.




                                          23
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                                     No. 19-10345


          Second, the majority incorrectly contends that kidnapping resulting in
   death, as distinguished from kidnapping simpliciter, necessarily satisfies the
   elements clause. The “death results” portion of § 1201(a) does not contain
   a mens rea requirement. § 1201(a); see Burrage v. United States, 

,
   210-14 (2014); United States v. Hayes, 

, 821 (5th Cir. 1979) (dis-
   cussing the “death results” language of 18 U.S.C. § 242, which criminalizes
   deprivations of federal rights under color of law, and stating that “no matter
   how you slice it, if death results does not mean if death was intended” (inter-
   nal quotation marks omitted)). But “[t]he key phrase in” the elements clause
   of 18 U.S.C. § 16(a)—a criminal provision identical in wording to § 924(c)’s
   elements clause and which defines a COV to include “the use . . . of physical
   force against the person or property of another—most naturally suggests a
   higher degree of intent than negligent or merely accidental conduct.” Leocal
   v. Ashcroft, 

, 9 (2004) (alterations in original) (internal quotation
   marks omitted). Put another way, the kidnapping resulting in death offense
   simply requires but-for causation between the kidnapping and a death, and a
   death may result from a kidnapping without force or the threat thereof ever
   being applied. It makes sense, then, that this court has never held that kid-
   napping resulting in death necessarily involves the use, attempted use, or
   threatened use of physical force. In short, it is conceivable that a particular
   kidnapping by inveiglement resulting in unintended death might not satisfy
   the elements clause of § 924(c) but instead could be found to constitute a
   COV under § 924(c)’s residual clause, which the Supreme Court declared
   unconstitutionally vague in Davis.
          In holding otherwise, the majority leans heavily on the decision of a
   divided panel of the Eighth Circuit in United States v. Ross, 

, 838-
   39 (8th Cir. 2020). There, the Eighth Circuit held that kidnapping resulting
   in death under § 1201(a) necessarily involves the use of force because the act
   of kidnapping involves, at a minimum, reckless disregard for human life and




                                         24
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                                     No. 19-10345


   when the kidnapping results in a victim’s death, “the perpetrator’s mental
   state is sufficient to show that he necessarily ‘used’ force against the victim.”
   

. This faulty reasoning does not withstand close scru-
   tiny. As established, § 1201(a) kidnapping, though it may require at least the
   mental state of recklessness, does not necessitate the use of force. For the
   Eighth Circuit’s and the majority’s conclusion to stand, then, the “death re-
   sults” element of a kidnapping resulting in death must require a forceful act.
   But the application of force requires “volitional conduct.” Voisine v. United
   States, 

, 2279 (2016) (actor must have the “mental state of
   intention, knowledge, or recklessness” to “use force”); see also 

. By contrast, the death results element under § 1201(a), as the
   Eighth Circuit majority acknowledged, has no mens rea requirement. See
   

. In short, the death results element simply requires that
   kidnapping constitute a but-for cause of a death, see 

-
   14, and therefore could be satisfied without the use of force.
          The dissent in Ross aptly illustrated this point: “Suppose that an indi-
   vidual gets in a car with a person impersonating an Uber driver and dies . . .
   in a tragic car accident caused by . . . by jumping out after discovering the
   driver’s true identity.” 

(Stras, J., concurring in the judg-
   ment and dissenting in part) (internal citations omitted). This scenario
   “qualif[ies] as kidnapping by ‘inveiglement’” and “‘results’ in death. And
   critically,” it does not “involve[] the use of force.”

Failing to appreciate this logic, the majority here accepts fully the
   Eighth Circuit majority’s reply that “[f]orce is necessary to kill the victim
   when she slams into the . . . pavement” and that this “application of force is
   not an accident” because the perpetrator acts with reckless disregard for the
   victim’s safety when he intentionally kidnaps her.

of kid-
   napping—which, again, does not require force—may involve reckless disre-
   gard for another’s safety is no answer to the question of whether force was




                                          25
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                                      No. 19-10345


   used when a victim dies during or after a kidnapping. Inveiglement clearly is
   not per se a “forceful act[], and nowhere does the court identify any other
   possible use of force, direct or indirect, by the perpetrator in” the scenario
   

n.3 (Stras, J., concurring in the judgment and dis-
   senting in part). Thus, the majority’s suggestion that kidnapping resulting in
   death under § 1201(a) requires force is error.
          Even though it is entirely possible that a kidnapping resulting in death
   could be committed without the use of physical force—and thus is not re-
   stricted to the elements clause—this is not enough to constitute a prima facie
   showing, according to the majority. Instead, it holds—rather extraordinar-
   ily—that Hall must show a “realistic probability . . . that the [Government]
   would apply [the] statute to [such] conduct.” Maj. Op. at 8. (quoting United
   States v. Castillo-Rivera, 

, 222 (5th Cir. 2017) (en banc)). The
   “realistic probability” test is familiar, but not in the context in which the ma-
   jority deploys it. The realistic probability test is a judge-made rule designed
   by a badly fractured court of appeals to legalistically but illogically fit more
   state offenses into federal generic offense definitions to enhance punish-
   ments. See 

. It ill-fits the end for which it was
   conceived and has absolutely no place in judging a prima facie showing or a
   showing of possible merit to warrant a fuller exploration by the district court
   under §2244(b)(3)(C) as incorporated by § 2255’s requirements for second
   or successive motions for authorization to apply for a writ of habeas corpus.
   In equating the judicially-created realistic probability test with the far less de-
   manding, statutorily-mandated prima facie standard—a standard we have
   consistently described as requiring merely a “showing of possible merit,” see,
   e.g., 

—the majority improperly ratchets up the
   burden on the movant.
          The error in the majority’s importation of the realistic probability
   standard into the habeas context is underscored by our limited




                                           26
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                                      No. 19-10345


   “gatekeeping” role in ruling on motions for authorization. See United States
   v. Wiese, 

, 723 (5th Cir. 2018). If we find that the prima facie
   standard for authorization is met, then the petitioner passes through only the
   first of two jurisdictional gates. The petitioner must still clear a second gate
   by “actually prov[ing] at the district court level that the relief he seeks relies”
   on a new rule.

he cannot, the district court lacks
   jurisdiction and “must dismiss the motion without reaching the merits.”

that to prove reliance on a new rule that invalidates a resid-
   ual clause—that is, that a petitioner’s conviction rests on a now-invalid pro-
   vision—the prisoner must show by a preponderance of the evidence in the dis-
   trict court that he was indeed convicted under the residual clause. See United
   States v. Clay, 

, 558–59 (5th Cir. 2019). Nowhere did we men-
   tion that a petitioner must have already shown a realistic probability that his
   conviction fell under the residual clause or imply that any showing beyond
   the statutorily-required prima facie standard was needed for authorization.
          Last, the majority baldly asserts that because Hall was charged with
   the capital crime of kidnapping resulting in death, his offense necessarily in-
   volved force and therefore is a predicate COV under § 924(c)’s elements
   clause. In other words, the majority contends that all death-penalty eligible
   offenses under the Federal Death Penalty Act, 18 U.S.C. § 3591, require the
   use of force. Notably, the majority cites no precedent whatsoever for this
   proposition. And the federal capital punishment statute distinguishes be-
   tween “participat[ing] in an act,” § 3591(a)(2)(C), and “engag[ing] in an act
   of violence,” § 3591(a)(2)(D) (emphasis added). We previously examined this
   language in United States v. Williams, 

, 284-88 (5th Cir. 2010),
   and ruled that an “act of violence”—as expressly distinguished from “an
   act”—necessarily requires “physical force.” The reasoning of Williams,
   then, indicates that § 3591(a)(2)(C) could well be satisfied without the use of
   physical force, strongly undermining the majority’s ipse dixit that all federal




                                           27
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                                      No. 19-10345


   capital offenses necessarily satisfy § 924(c)’s elements clause. Hall has made
   the minimal prima facie showing that his predicate COV satisfies solely the
   residual clause, and it should be left for the district court to determine by a
   preponderance of the evidence whether in fact his § 924(c) conviction can be
   sustained.
                                         ***
          For these reasons, I would hold that Hall has made a “sufficient show-
   ing of possible merit to warrant a fuller exploration by the district court” and
   would therefore grant him authorization to file a successive habeas petition.
   

. Because the majority errs in denying author-
   ization, I respectfully dissent.




                                          28