PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
         ______________

            No. 16-2027

   In re: MICHAEL MATTHEWS,
                                 Petitioner
          ______________

            No. 16-2080

       In re: DAVID DUPREE,
                                 Petitioner
          ______________

       Nos. 16-2273 & 16-2312

   In re: SEBASTIAN WILLIAMS,
                                 Petitioner
          _____________

            No. 16-2414

       In re: LARRY SMITH,
                                 Petitioner
          ______________

            No. 16-2422

In re: RUSSELL WAYNE MCNEILL, III,
                                               Petitioner
                      ______________

On Applications Pursuant to 28 U.S.C. § 2244(b) for Leave to
                       File Second
         or Successive 28 U.S.C. § 2255 Motions
                     ______________

                          Argued
                      October 9, 2018
                      _____________

 Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
                  Circuit Judges.

                  (Filed: August 14, 2019)
                      ______________

Leigh M. Skipper
Arianna J. Freeman [ARGUED]
Brett G. Sweitzer
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540
West Philadelphia, PA 19106, USA
        Counsel for Petitioner in No. 16-2027 & 16-2414

Heidi Freese
Ronald A. Krauss
Federal Defender Office
for the Middle District of Pennsylvania
100 Chestnut Street




                              2
Suite 306
Harrisburg, PA 17101
       Counsel for Petitioner in No. 16-2080

Richard Coughlin
Julie A. McGrain
Federal Defender Office
for the District of New Jersey
800-840 Cooper Street
Suite 350
Camden, NJ 08102
        Counsel for Petitioner in Nos. 16-2273 & 16-2312

Lisa B. Freeland
Elisa A. Long
Federal Defender Office
for the Western District of Pennsylvania
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
        Counsel for Petitioner in No. 16-2422

William M. McSwain
Robert A. Zauzmer
Office of United States Attorney
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Respondent in Nos. 16-2027 & 16-2414

David J. Freed
Stephen R. Cerutti
Office of United States Attorney




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Middle District of Pennsylvania
Ronald Reagan Federal Building
Suite 220, 228 Walnut Street
Harrisburg, PA 17108
       Counsel for Respondent in No. 16-2080

Craig Carpenito
Steven G. Sanders [ARGUED]
Mark E. Coyne
Office of United States Attorney
District of New Jersey
970 Broad Street
Newark, NJ 07102
       Counsel for Respondent in Nos. 16-2273 & 16-2312

Scott W. Brady
Tina O. Miller
Rebecca R. Haywood
Laura S. Irwin
Office of United States Attorney
Joseph F. Weis, Jr. U.S. Courthouse
700 Grant Street, Suite 4000
Western District of Pennsylvania
Pittsburgh, PA 15219
       Counsel for Respondent in No. 16-2422
                       ______________

               OPINION OF THE COURT
                   ______________

GREENAWAY, JR., Circuit Judge.




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        This is a consolidated case involving five Petitioners—
Michael Matthews, David Dupree, Sebastian Williams, Larry
Smith, and Russell McNeill, III—each of whom have filed
second      or      successive    habeas     petitions     under
28 U.S.C. § 2255(h)(2)1 to challenge their sentences for their
convictions under 18 U.S.C. § 924(c). Each Petitioner’s
§ 2255 motion argues that § 924(c)(3)’s residual clause is
unconstitutionally vague, given its textual similarity to the
residual clauses found unconstitutional by the Supreme Court
in Johnson v. United States, 

, 2563 (2015), and
Sessions v. Dimaya, 

, 1223 (2018). In the time
since this case was argued before this Court, the Supreme
Court issued its opinion in United States v. Davis, striking
down § 924(c)(3)(B) as unconstitutionally vague. 

, 2336 (2019). The parties concede that the petitions at
issue are now timely under Davis, thus precluding the need for
our analysis of the applicability of Johnson and Dimaya to
these petitions. For the following reasons, we will authorize
all of the petitions.2




1
  For ease of reference, we will refer to these simply as
“§ 2255” petitions.


2
  Pending before this Court are approximately two hundred
such applications that were stayed following the consolidation
of these five lead applications. Pursuant to the reasoning
below, we will authorize these as well.




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I.  FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

        The five Petitioners in this action were convicted,
among other offenses, of violating 18 U.S.C. § 924(c)(1)(A),
which proscribes the use or carry of a firearm during and in
relation to a “crime of violence” or “drug trafficking crime,” as
well as the possession of a firearm in the furtherance of any
such crime. Section 924(c)(3) defines “crime of violence” to
mean a felony offense that “(A) has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another” (the “elements” clause) 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” (the “residual” clause).
Under Davis, it is undisputed that Petitioners meet the prima
facie requirements of this Circuit; therefore, we will authorize
their petitions.

A.     Michael Matthews

        Michael Matthews and an accomplice planned, from
about May 2009 to June 2009, to rob a check cashing store
located in Philadelphia, Pennsylvania. Matthews armed
himself with a .22 caliber handgun in furtherance of, and to
effect the object of, the conspiracy. A grand jury in the Eastern
District of Pennsylvania charged Matthews with one count of
conspiracy to commit Hobbs Act robbery, in violation of
18 U.S.C. § 1951 (Count 1); one count of attempted Hobbs Act
robbery, in violation of 18 U.S.C. § 1951 (Count 3); one count
of using a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4); and one
count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (Count 5). On February 2,




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2012, after a jury trial, the District Court entered judgment
convicting Matthews on all counts, and sentenced him to 120
months’ imprisonment, to be served concurrently on Counts 1,
3, and 5, followed by 72 months’ imprisonment on the § 924(c)
count (Count 4), for an aggregate sentence of 192 months’
imprisonment.

        Matthews appealed his judgment of conviction, and this
Court affirmed. See United States v. Matthews, 532 F. App’x
211 (3d Cir. 2013).            Matthews filed a previous
28 U.S.C. § 2255 motion, which the District Court denied on
July 14, 2015. He appealed to this Court, which denied a
certificate of appealability on April 5, 2016. On April 27,
2016, Matthews filed an application for authorization to file a
second or successive § 2255 motion.

B.    David Dupree

       David Dupree and several accomplices robbed a bank
located in Lebanon, Pennsylvania on April 15, 2004. During
and in relation to the bank robbery, Dupree possessed, carried,
and brandished a handgun. A grand jury in the Middle District
of Pennsylvania charged Dupree with one count of armed bank
robbery, in violation of 18 U.S.C. § 2113(d) (Count 1); one
count of using a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count
2); and one count of conspiracy to commit armed bank robbery,
in violation of 18 U.S.C. § 371 (Count 3). On November 4,
2009, after a jury trial, the District Court entered judgment
convicting Dupree on all counts, and on August 6, 2010, the
District Court sentenced Dupree to 248 months’ imprisonment
on Count 1 to be served concurrently with 60 months’
imprisonment on Count 3, and a consecutive term of 84




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months’ imprisonment on the § 924(c) count (Count 2), for an
aggregate sentence of 332 months’ imprisonment.

       Dupree appealed his judgment of conviction, and this
Court affirmed. See United States v. Dupree, 472 F. App’x 108
(3d Cir. 2012). Dupree filed a previous 28 U.S.C. § 2255
motion that was docketed in the District Court on June 15,
2012. On October 22, 2012, the court denied the motion. That
denial was vacated for procedural reasons, and the District
Court again denied a renewed § 2255 motion on June 29, 2015.
Dupree appealed to this Court, which denied a certificate of
appealability on February 3, 2016. On April 29, 2016, Dupree
filed an application for authorization to file a second or
successive § 2255 motion.

C.    Sebastian Williams

       Sebastian Williams and several accomplices, from
March 2002 through August 2002, conspired to rob armored
cars operated by a business that transported cash in such
armored cars to and from various customers. On March 23,
2002, Williams and a co-conspirator, each armed with a
handgun, robbed an armored truck of more than $600,000 cash,
and attempted a second robbery on August 29, 2002. A grand
jury in the District of New Jersey charged Williams with two
counts of conspiracy to commit a Hobbs Act robbery, in
violation of 18 U.S.C. § 1951 (Counts 1 and 3); and one count
of carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count
2). On March 24, 2003, after a jury trial, the District Court
entered judgment convicting Williams on all counts, and on
August 18, 2003, the District Court sentenced Williams to
concurrent terms of 140 months’ imprisonment on Counts 1
and 3 and a consecutive term of 84 months’ imprisonment on




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the § 924(c) count, for an aggregate sentence of 224 months’
imprisonment. Williams’s conviction and sentence on Count
2, the § 924(c)(1)(A)(ii) count, was premised on the District
Court’s determination at sentencing that he brandished the
firearm.

       Williams appealed his judgment of conviction. This
Court upheld the convictions but vacated the sentence and
remanded for re-sentencing in light of United States v. Booker,

(2005), which rendered the once mandatory
Sentencing Guidelines advisory.        See United States v.
Williams, 134 F. App’x 510 (3d Cir. 2005). On remand, the
District Court re-imposed the same aggregate sentence of 224
months. Specifically, Williams was resentenced to 140 months
on the conspiracy counts, to be served concurrently, and an
additional term of 84 months on the § 924(c) count.

        Williams filed a second appeal after his resentencing.
One of the issues raised was whether his Sixth Amendment
rights were violated when he was sentenced to a consecutive
seven-year term of imprisonment under § 924(c)(1)(A)(ii) for
brandishing the firearm. Williams contended that he should
have received a five-year term instead, for mere use or carrying
of a firearm, § 924(c)(1)(A)(i), as found by the jury. This
Court held, based on the law at the time, that brandishing or
discharging a firearm in violation of § 924(c) is a sentencing
factor, rather than an element of the offense, that a judge may
find to increase a mandatory minimum sentence.

        Williams has filed one previous 28 U.S.C. § 2255
motion. It was denied by the District Court on July 7, 2010.
He appealed to this Court, which issued an order denying a
certificate of appealability on November 8, 2010. On May 10,
2016, Williams, through counsel, filed an application for




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authorization to file a second or successive § 2255 motion, and
on May 12, 2016, Williams filed a pro se application for
authorization to file a second or successive § 2255 motion.

D.     Larry Smith

       Larry Smith and his brother robbed a gas station in
Philadelphia, Pennsylvania at gunpoint in February 2003. A
grand jury in the Eastern District of Pennsylvania charged
Smith with one count of Hobbs Act robbery and aiding and
abetting, in violation of 18 U.S.C. § 1951 (Count 1); one count
of attempted carjacking and aiding and abetting, in violation of
18 U.S.C. § 2119 (Count 3); and two counts of using a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2 and 4). On September
29, 2003, after a jury trial, the District Court entered judgment
convicting Smith on all counts. On May 7, 2004, the District
Court sentenced him to 384 months’ imprisonment on the two
§ 924(c) counts (Counts 2 and 4) plus 24 months’
imprisonment for Hobbs Act robbery and carjacking (Counts 1
and 3). See United States v. Smith, 225 F. App’x 51, 52 (3d
Cir. 2007). Smith appealed the amended judgment of
conviction and this Court affirmed. 

a previous
28 U.S.C. § 2255 motion, which the District Court denied on
April 22, 2009. On June 18, 2016, Smith filed an application
for authorization to file a second or successive § 2255 motion.

E.     Russell McNeill, III.

       Russell McNeill, III robbed three stores and a bank over
the course of three days in April 2006. A grand jury in the
Western District of Pennsylvania charged McNeill with three
counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951
(Counts 1, 3, and 5); four counts of brandishing a firearm




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during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2, 4, 6, and 9); one count
of bank robbery, in violation of 18 U.S.C. § 2113(a) (Count 7);
and one count of armed bank robbery, in violation of
18 U.S.C. § 2113(d) (Count 8). On October 5, 2007, after a
jury trial, the District Court entered judgment convicting
McNeill on all counts, and on February 27, 2008, the District
Court sentenced him to concurrent terms of 78 months’
imprisonment on Counts 1, 3, 5, 7, and 8, a consecutive term
of 84 months’ imprisonment on the first § 924(c) count (Count
2), and 25 years’ imprisonment on each of the three additional
§ 924(c) counts (Counts 4, 6, and 9), with each of the § 924(c)
sentences to be served consecutively to one another and
consecutively to the 78-month concurrent sentence on the non-
§ 924(c) counts, for an aggregate sentence of 1,062 months (or
88.5 years) of imprisonment.

       McNeill appealed his judgment of conviction, and this
Court affirmed. United States v. McNeill, 360 F. App’x 363
(3d Cir. 2010).        McNeill has filed one previous
28 U.S.C. § 2255 motion. On March 26, 2015, the District
Court granted the motion in part and denied it in part;
specifically, it vacated its sentence on Count 7 of the
indictment—the bank robbery count—and denied the motion
in all other respects. McNeill did not appeal. On May 16,
2016, McNeill filed an application for authorization to file a
second or successive § 2255 motion.




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II.    DISCUSSION3

        This Court need not determine the merits of Petitioners’
proposed challenges to § 924(c), because the key question is
whether Petitioners have made a prima facie showing that their
petitions satisfy the pre-filing requirements of § 2255. See
United States v. Peppers, 

, 221 (3d Cir. 2018)
(noting that “[o]ur inquiry does not go . . . deep because we are
in search of a mere prima facie showing that the petitioner has
satisfied the pre-filing requirements to warrant full exploration
by the district court.” (internal quotation marks, citations, and
ellipsis omitted)). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) created a statutory
“gatekeeping mechanism” for a second or successive habeas
petition. In re Hoffner, 

, 306 (3d Cir. 2017)
(quoting Felker v. Turpin, 

, 657 (1996)). Pursuant
to § 2255, a petitioner’s “second or successive motion must be
certified as provided in [28 U.S.C. § 2244] by a panel of the
appropriate court of appeals.” 28 U.S.C. § 2255(h). Section
2244 lists the pre-filing or gatekeeping requirements applicable
to motions under § 2255(h)(2): (1) a petitioner must “show[]
that the claim relies on a new rule of constitutional law,” (2)
“made retroactive to cases on collateral review by the Supreme
Court,”      (3)    “that     was    previously     unavailable.”
28 U.S.C. § 2244(b)(2)(A).

      Under § 2244, petitioners must make a prima facie
showing that their § 2255 motions satisfy these three


3
  This Court has jurisdiction over Petitioners’ applications to
file a second or successive petition for writ of habeas corpus
under 28 U.S.C. §§ 2255(h) and 2244(b)(3).




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requirements, which this Court has characterized as a “light
burden.” 28 U.S.C. § 2244(b)(3)(C); 

;
see also In re Pendleton, 

, 282 (3d Cir. 2013) (per
curiam) (“Under our precedent, a prima facie showing in this
context merely means a sufficient showing of possible merit to
warrant a fuller exploration by the district court.”) (internal
quotation marks and citations omitted). If the court of appeals
authorizes the motion, the District Court will have the
opportunity to “consider anew whether the petitioner” indeed
meets the § 2244 requirements. 

.

        The parties concede that, pursuant to Davis, Petitioners’
claims are now timely. See 

(“[Section] 924(c)(3)(B) is unconstitutionally vague”). The
Government argues that the Panel should nonetheless deny as
futile the applications of petitioners Dupree, Smith, and
McNeill because their predicate offenses qualify as crimes of
violence under § 924(c)(3)(A), unlike those of petitioners
Matthews and Williams, whose § 924(c) convictions were
predicated on Hobbs Act conspiracies.             Whether the
Petitioners’ crimes fall under the elements clause or the
challenged residual clause is itself a merits inquiry. See

(characterizing the determination of
whether petitioner’s prior felony convictions qualify under the
elements clause or the enumerated offenses clause as a merits
issue). Therefore, we will not foreclose as futile Petitioners’
second or successive § 2255 motions because it is improper at
this juncture.

III.   CONCLUSION

        For the foregoing reasons, we find that Petitioners meet
the gatekeeping requirements of § 2244, and we will authorize
all of Petitioners’ second or successive § 2255 motions.




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