USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-221

In re: KENNETH GRAHAM,

Movant,

Application for Successive Habeas Authorization Arising from the United States District Court for the District of Maryland, at Baltimore.

Argued: January 24, 2023 Decided: March 8, 2023

Before GREGORY, Chief Judge, WYNN, and THACKER Circuit Judges.

Motion granted by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Movant. Jonathan Scott Tsuei, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Respondent. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Movant. Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent. USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 2 of 17

GREGORY, Chief Judge:

In 2015, a jury convicted Petitioner Kenneth Graham of possessing a firearm in

furtherance of a “crime of violence”—in Graham’s case, attempted Hobbs Act robbery—

in violation of §

(c). Because we have since determined that attempted

Hobbs Act robbery is not a “crime of violence” under that statute, Graham’s § 924(c)

conviction (and the associated ten-year prison sentence) is no longer valid. Having

previously sought relief pursuant to

, Graham now moves for

authorization to file a second or successive § 2255 motion to vacate his § 924(c)

conviction. In addressing Graham’s request, we must first determine whether

(b)(1) requires dismissal of the claim he seeks to bring. For the reasons to follow,

we conclude that it does not, and that Graham otherwise meets the standard for filing a

second or successive motion set forth in § 2255(h)(2). Accordingly, we grant Graham’s

authorization motion.

I.

In February 2015, Kenneth Graham was convicted of three counts: (1) attempted

Hobbs Act robbery in violation of

(a); (2) possession of a firearm in

furtherance of a “crime of violence” in violation of

(c); and (3) possession

of a firearm as a felon in violation of

(g). As to the second count,

§ 924(c)(3) defines a “crime of violence” as an offense that is a felony and that either

“(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

2 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 3 of 17

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). Graham’s attempted Hobbs

Act robbery offense served as the predicate “crime of violence” underlying his § 924(c)

conviction. The court sentenced Graham to 240 months on Count One and 262 months on

Count Three to run concurrently, and 120 months on Count Two to run consecutively, for

a total term of 382 months of imprisonment. Graham appealed his conviction, and this

Court affirmed. See United States v. Graham,

(4th Cir. 2016).

In February 2018, Graham filed a § 2255 motion to vacate, set aside, or correct his

sentence. Graham argued in part that Johnson v. United States,

(2015)—

which struck down a similar residual clause defining “violent felony” in

(e)

as unconstitutionally vague—invalidated his § 924(c) conviction because attempted Hobbs

Act robbery could no longer qualify as a “crime of violence.” However, the court

dismissed Graham’s § 2255 motion as untimely because his conviction had become final

almost two years before he sought habeas relief. See Graham v. United States, No. CR

13-620,

, at *2 (D. Md. Oct. 16, 2018).

In April 2019, Graham moved for this Court’s authorization to file a second or

successive § 2255 motion. Graham reiterated his argument that developments in controlling

case law rendered his § 924(c) conviction invalid. In addition to citing Johnson, Graham

relied on Welch v. United States,

(2016), which held that Johnson applies

retroactively on collateral review. He also cited Sessions v. Dimaya,

, 1223

(2018), which invalidated the residual clause defining “crime of violence” in

(b) as unconstitutionally vague, and United States v. Simms,

(4th 3 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 4 of 17

Cir. 2019), wherein we relied on Johnson and Dimaya to nullify § 924(c)’s residual clause.

We summarily denied Graham’s authorization motion.

In April 2020, Graham filed the instant authorization motion. Graham seeks to bring

a second or successive § 2255 motion challenging his § 924(c) conviction under United

States v. Davis,

(2019), which struck down § 924(c)’s residual clause

as unconstitutionally vague. 1 After Graham filed his authorization motion, we held in

United States v. Taylor that attempted Hobbs Act robbery is not a “crime of violence” under

§ 924(c) because it does not meet the elements clause definition, and the residual clause is

no longer valid after Simms and Davis.

(4th Cir. 2020).

We placed this case in abeyance pending the Supreme Court’s review of our

decision in Taylor. After the Supreme Court affirmed, United States v. Taylor,

(2022), we ordered formal briefing on “the impact, if any, of

(b)(1) on Graham’s ability to rely on Davis to seek authorization to file a successive

§ 2255 motion,” as well as “any other issues the parties may deem meritorious.” Order, In

re Kenneth Graham, No. 20-221 (4th Cir. July 12, 2022), ECF No. 17.

1 Graham’s pro se motion initially included two additional grounds for relief, including that his § 922(g) conviction is invalid pursuant to Rehaif v. United States,

(2019), and that his indictment was invalid. However, Graham was subsequently appointed counsel, who filed a formal brief arguing only that Graham’s Davis claim meets the standard for a second or successive motion under

(h). Because “we treat the formal brief as definitive of the issues for review,” we only address Graham’s Davis-based challenge to his conviction. Slezak v. Evatt,

, 593 n.2 (4th Cir. 1994). 4 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 5 of 17

In their briefing, Graham and the Government agree that § 2244(b)(1) does not bar

Graham’s Davis claim, and that Graham meets the § 2255(h) gatekeeping test for

authorizing a second or successive § 2255 motion. We agree on both scores.

II.

Before addressing whether Graham meets the standard for authorizing a second or

successive § 2255 motion, we must first determine whether § 2244(b)(1) requires that his

“claim . . . be dismissed.”

(b)(1). We conclude that it does not because

§ 2244(b)(1) does not apply to second or successive § 2255 motions. 2

A.

We begin our analysis with an overview of the relevant statutory scheme. The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “divides the available

routes for collateral attacks on a sentence according to the law under which a person is

imprisoned: A person imprisoned pursuant to the judgment of a state court may apply for

[postconviction relief] under § 2254, while a person in federal custody may move . . . under

§ 2255.” Jones v. United States,

(9th Cir. 2022). For both federal and

state prisoners, “AEDPA codified and extended judicially constructed limits on second and

successive collateral attacks on convictions.” In re Jones,

, 330 (4th Cir. 2000).

2 The parties agree that § 2244(b)(1) does not require dismissal of Graham’s claim for a second reason: even if § 2244(b)(1) applied, Graham’s current claim was not “presented in a prior application.”

(b)(1). Because we hold § 2244(b)(1) does not apply to second or successive § 2255 motions, we need not reach this argument. 5 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 6 of 17

Pursuant to § 2255(h), which governs habeas claims by federal prisoners, “[a]

second or successive [§ 2255] motion must be certified as provided in section 2244 by a

panel of the appropriate court of appeals to contain” either “newly discovered evidence

that, if proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have found

the movant guilty of the offense”; or “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable.”

(h) (emphasis added).

In turn, § 2244 includes four relevant provisions governing second or successive

habeas claims. First, § 2244(b)(1) states that “[a] claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior application shall

be dismissed.” Second, § 2244(b)(2) sets the gatekeeping test for entertaining second or

successive § 2254 applications. This standard is similar, but not identical, to that set forth

in § 2255(h). Third, § 2244(b)(3) outlines the process and requirements for filing a second

or successive habeas application. Specifically, it (1) dictates that “[b]efore a second or

successive application permitted by this section is filed in the district court, the applicant

shall move in the appropriate court of appeals for an order authorizing the district court to

consider the application”; (2) requires a three-judge appellate panel to determine “that the

application makes a prima facie showing that the application satisfies the requirements of

this subsection”; and (3) precludes appeals from such determinations.

(b)(3). Finally, § 2244(b)(4) directs a district court to “dismiss any claim presented

6 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 7 of 17

in a second or successive application that the court of appeals has authorized to be filed

unless the applicant shows that the claim satisfies the requirements of this section.”

B.

With this background in mind, we address whether § 2244(b)(1), which requires

dismissal of “[a] claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application,” applies only to second or successive

§ 2254 applications by state prisoners, or if it also applies to second or successive § 2255

motions by federal prisoners. Despite the plain language of the provision limiting its

application to the former set of cases, the Second, Third, Fifth, Seventh, Eighth, and

Eleventh Circuits have determined that it applies to second or successive habeas

applications by both state and federal prisoners. See Gallagher v. United States,

(2d Cir. 2013); United States v. Winkelman,

(3d Cir. 2014); In

re Bourgeois,

, 447–48 (5th Cir. 2018); Taylor v. Gilkey,

(7th Cir. 2002); Winarske v. United States,

, 768–69 (8th Cir. 2019); In re

Baptiste,

(11th Cir. 2016). The Sixth and Ninth Circuits, however,

have reached the opposite conclusion. See Williams v. United States,

(6th Cir. 2019) (concluding “that § 2244(b)(1) does not apply to federal prisoners . . .

seeking relief under § 2255”); Jones v. United States,

(9th Cir. 2022)

(same). For its part, the Supreme Court has recognized “th[e] circuit split on this question

of federal law” but has yet to address it. Avery v. United States,

, 1080–81

(2020) (mem.) (Kavanaugh, J., statement respecting the denial of certiorari).

7 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 8 of 17

Having previously declined to “wade[] into the circuit split over whether

[§ 2244(b)(1)] also applies to federal inmates seeking to file successive § 2255 [motions],”

In re Thomas,

, 788 n.3 (4th Cir. 2021), we now join the ranks of the Sixth

and Ninth Circuits and conclude that § 2244(b)(1) does not so apply.

1.

To start, the plain text of § 2244(b)(1) clearly circumscribes the provision’s

applicability to “claim[s] presented in a second or successive habeas corpus application

under section 2254.”

(b)(1) (emphasis added). Some of the cases holding

that § 2244(b)(1) applies to second or successive § 2255 motions attempt to overcome this

plain language by focusing on § 2255(h)’s pronouncement that a “second or successive

motion must be certified as provided in section 2244.”

(h) (emphasis

added). These courts argue that § 2255(h)’s reference to § 2244 “means that [§ 2244(b)(1)]

is equally applicable to § 2255 motions.” Taylor,

; see also Bourgeois,

(“[Section] 2244(b)(1)’s strict relitigation bar is incorporated by

(h).”).

But we do not read § 2255(h)’s requirement that a second or successive § 2255

motion be “certified as provided in section 2244” as incorporating the entirety of § 2244 by

reference. Rather, as the Sixth Circuit observed, “§ 2255(h)’s reference to § 2244’s

certification requirement is much more sensibly read as referring to the portions of § 2244

that actually concern the certification procedures,” such as § 2244(b)(3). Williams,

. Indeed, “it makes no linguistic sense to direct a court to ‘certif[y] as provided in

section 2244[(b)(1)]’ that a motion contains the threshold conditions discussed in § 2255(h).” 8 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 9 of 17

Id. Rather, “what makes linguistic sense is to direct a court to certify that those preconditions

are met in accordance with the procedures laid out in § 2244(b)(3).” Id.

Consistent with our obligation to “try to give every word in the statute meaning to

avoid rendering its terms superfluous,” Espinal-Andrades v. Holder,

(4th Cir. 2015), interpreting § 2255(h) to incorporate only § 2244(b)(3) “avoid[s] creating

surplusage,” Hedin v. Thompson,

(4th Cir. 2004). Section 2244(b) “is

divided into provisions that expressly specify their applicability to ‘a second or successive

habeas corpus application under section 2254’ (emphasis added)—namely § 2244(b)(1)

and (b)(2)—and those that do not indicate whether they apply only to § 2254

applications—§ 2244(b)(3) and (b)(4).” Jones, 36 F.4th at 982–93. Whereas reading

§§ 2244(b)(1) and (b)(2) to apply to federal habeas proceedings would render those

provisions’ express reference to § 2254 superfluous, restricting their scope to second or

successive § 2254 applications affords their language proper effect.

A comparison between the text of §§ 2244(b)(1), 2244(b)(2), and 2255(h) further

convinces us that § 2244(b)(1) does not apply to second or successive § 2255 motions. In

§ 2244(b)(1), Congress set forth a rule governing (and requiring the dismissal of) “claim[s]

presented in a second or successive habeas corpus application under section 2254 that

w[ere] presented in a prior application.” In the next provision, § 2244(b)(2), Congress set

forth a rule governing “claim[s] presented in a second or successive habeas corpus

application under section 2254 that w[ere] not presented in a prior application” (emphasis

added), and allowing such claims to proceed if they meet the gatekeeping requirements of

§ 2244(b)(2)(A) or (B). Sections 2244(b)(1) and (b)(2) thus appear to work in tandem to 9 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 10 of 17

establish the requirements for authorizing a second or successive § 2254 application; which

provision applies turns on whether the petitioner seeks to bring a claim “presented in a

prior application.”

(b)(1) & (b)(2).

By contrast, the gatekeeping test for authorizing a second or successive § 2255

motion applies, by its terms, to any “second or successive motion,”

(h),

regardless of whether the claim in the second or successive motion was previously

presented. That is, whereas § 2244(b)(2) limits the application of its gatekeeping test for

second or successive § 2254 applications to claims that were “not presented in a prior

application,” § 2255(h) provides no such limiting language. “Had Congress likewise

intended” to limit the gatekeeping test for second or successive § 2255 motions to claims

that were not previously presented, “it knew how to say so.” Rubin v. Islamic Republic of

Iran,

(2018). “And, usually at least, when we’re engaged in the

business of interpreting statutes[,] we presume differences in language like this convey

differences in meaning.” Henson v. Santander Consumer USA Inc.,

(2017). Here, that difference in meaning instructs us that § 2244(b)(1) does not govern

second or successive § 2255 motions.

Finally, we note the untenable consequences that would flow from reading

§ 2244(b)(1) to apply to second or successive § 2255 motions. Sections 2255(h) and

2244(b)(2) each set forth a test that courts of appeals must apply to determine whether to

authorize second or successive habeas claims brought by federal and state prisoners,

respectively. While the tests are similar, they are not identical. Both allow courts of

appeals to authorize a second or successive habeas claim that relies on “a new rule of 10 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 11 of 17

constitutional law, made retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.” § 2255(h)(2); § 2244(b)(2)(A). Yet, whereas

§ 2244(b)(2)(B) only allows courts of appeals to authorize a second or successive § 2254

application if “the factual predicate for the claim could not have been discovered previously

through the exercise of due diligence” and “the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense,” § 2255(h)(1) “contains no due-

diligence or constitutional-error requirement.” Jones,

n.6.

But if § 2255(h) were to incorporate all of § 2244’s provisions, then it would

necessarily incorporate § 2244(b)(2)’s gatekeeping test. In other words, it would apply a

gatekeeping test to second or successive § 2255 motions that conflicts with the very test

§ 2255(h) itself articulates, and which this Court has confirmed does not apply to second

or successive § 2255 motions. See United States v. MacDonald,

(4th

Cir. 2011) (holding that “the district court erred by applying the standard of

(b)(2)(B)(ii), rather than § 2255(h)(1)” because “§ 2244(b)(2) sets forth the

controlling standard for state prisoners, and § 2255(h) spells out the standard applicable to

those in federal custody”). 3 This strikes us as an illogical, and perhaps even “absurd[,]

3 In MacDonald, we surmised that the error was “probably harmless” “[b]ecause of the similarities between § 2244(b)(2)(B)(ii) and § 2244(h)(1)” but did not ultimately reach “the harmlessness question.”

. We have since noted “that § 2255(h)(1) contains crucial linguistic differences that render it more lenient than § 2244(b)(2)(B)(ii).” United States v. MacDonald,

, 726–27 n.3 (4th Cir. 2018) (citing Case v. Hatch,

(10th Cir. 2013)). 11 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 12 of 17

result[].” Griffin v. Oceanic Contractors, Inc.,

(1982) (“[I]nterpretations

of a statute which would produce absurd results are to be avoided . . . .”).

Recognizing this conflict, the Eleventh Circuit simply concluded that § 2255(h)

incorporates § 2244(b)(1) but not § 2244(b)(2). In re Bradford,

, 1276 n.1

(11th Cir. 2016). In Bradford, the Eleventh Circuit “thought that the logical difficulty

posed by applying § 2244(b)(2) to § 2255 motions justified a departure from a general

principle that § 2244(b) applied to § 2255 in its entirety.” Jones,

. However,

as the Ninth Circuit recognized, “the better inference is that the principle is wrong. After

all, the text in § 2244(b)(2) that limits its applicability to § 2254 is identical to the text in

§ 2244(b)(1),” and there is “no reason to credit the cross-reference to § 2254 in

§ 2244(b)(2) but ignore it in § 2244(b)(1).” Id. “Apply[ing] our usual presumption that

the same words repeated in different parts of the same statute have the same meaning,”

Env’t Def. v. Duke Energy Corp.,

(2007) (Thomas, J., concurring), we

decline to subject the “same words” in §§ 2244(b)(1) and (b)(2) to disparate treatment.

And because § 2255(h) cannot incorporate § 2244(b)(2), nor can it incorporate

§ 2244(b)(1).

2.

The policies underlying AEDPA do not undermine this conclusion. Some courts

holding that § 2244(b)(1) applies to second or successive habeas claims brought by both

state and federal prisoners have grounded their reasoning in policy considerations, such as

the notion that “it would be odd indeed if Congress had intended to allow federal prisoners

to refile precisely the same non-meritorious motions over and over again while denying 12 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 13 of 17

that right to state prisoners.” Baptiste,

. But that reasoning is unavailing.

As a threshold matter, “[n]o legislation pursues its purposes at all costs, and [such a]

purposive argument simply cannot overcome the force of the plain text.” Williams,

(quoting Mohamad v. Palestinian Auth.,

(2012)).

But even looking to policy considerations, our conclusion is unyielding. “AEDPA’s

purpose [was] to further comity, finality, and federalism principles.” Williams v. Taylor,

(2000). “To begin with, comity and federalism concerns arise when a

federal court reviews a state-court conviction, but not when it reviews a federal

conviction.” Jones,

. Those concerns are thus not present when a federal

court considers an authorization motion by a petitioner imprisoned pursuant to the

judgment of a federal court.

Indeed, the Tenth Circuit applied this very reasoning to

conclude it “makes sense” that “§ 2255(h)(1), governing federal court review of federal

convictions, is more lenient” than § 2244(b)(2)(B)’s “strict standard restricting the kinds

of evidence that federal courts may consider when entertaining a state prisoner’s

successive-petition claim.” Case v. Hatch,

(10th Cir. 2013).

And, as Graham argues, it is reasonable to treat a federal prisoner’s successive

claims with more flexibility; whereas “a state prisoner gets two bites at the apple—an

opportunity to contest a state conviction through state postconviction proceedings as well

as federal habeas proceedings through § 2254,” Opening Br. 22—a federal prisoner

seeking postconviction relief is restricted to the federal forum and may file only one § 2255

motion before being subject to the gatekeeping requirements governing second or

successive motions. See Lester v. Flournoy,

(4th Cir. 2018) (“[O]nce 13 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 14 of 17

the prisoner has filed one unsuccessful § 2255 motion, . . . he may not file another except

under very limited circumstances.”).

Nor does today’s holding undermine Congress’s interest in finality. “Even though

this interpretation may result in more applications for leave to file such motions before

courts of appeals, it is doubtful that this would produce a wave of new district-court

postconviction proceedings,” as “even previously presented claims must satisfy the

gatekeeping test in § 2255(h).” Jones,

. We are satisfied that the “stringent,”

In re Williams,

(4th Cir. 2003), and “difficult[ to] meet[],” United States

v. Washington,

(9th Cir. 2011), requirements set forth in § 2255(h)

will continue “to advance the finality of criminal convictions,” Mayle v. Felix,

(2005).

III.

Having concluded that § 2244(b)(1) does not bar Graham’s claim, we turn to

whether Graham meets the standard for authorizing a second or successive § 2255 motion.

To do so, Graham must “mak[e] a prima facie showing that” his claim satisfies the

§ 2255(h) gatekeeping test. Marlowe v. Warden, FCI Hazelton,

(4th Cir.

2021). This requires “simply a sufficient showing of possible merit to warrant a fuller

exploration by the district court.” Williams,

(quoting Bennett v. United

States,

, 469–70 (7th Cir. 1997)). 4 “If in light of the documents submitted

4 In Williams, we clarified that while the “prima facie” standard requires a “sufficient showing of possible merit to warrant a fuller exploration by the district court,” (Continued) 14 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 15 of 17

with the [authorization motion] it appears reasonably likely that the motion satisfies the

stringent requirements for the filing of a second or successive petition, we shall grant

[authorization].”

(cleaned up).

The parties agree that Graham has made a prima facie showing that his Davis claim

satisfies § 2255(h)(2), which requires his second or successive motion to contain “a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” Graham and the Government contend that

Thomas, wherein we held that the petitioner’s Davis claim met the § 2255(h)(2)

requirements, is on all fours with the instant case. We agree.

To start, our conclusion in Thomas that Davis announced a “substantive rule of

constitutional law that has been made retroactive to cases on collateral review by the

Supreme Court” applies with equal force here.

. Therefore, we need only

determine whether that rule is both “new” and “was previously unavailable” to Graham.

that “showing of possible merit” “relates to the possibility that the claims in a successive application will satisfy the stringent requirements for the filing of a second or successive petition, not the possibility that the claims will ultimately warrant a decision in favor of the applicant.” 330 F.3d at 281–82 (cleaned up). However, in In re Irby and subsequent cases, we stated that for a petitioner to make “a sufficient showing of possible merit,” he or she “must make a ‘plausible’ claim for relief.”

(4th Cir. 2017). We are “bound by the basic principle that one panel cannot overrule a decision issued by another panel,” and “[w]hen panel opinions conflict, we are obliged to . . . adhere to the earlier of the conflicting opinions.” United States v. Williams,

(4th Cir. 2015) (internal quotation marks omitted). Adhering to those rules, we follow our earlier articulation of a “prima facie showing” in Williams and focus only on whether Graham is reasonably likely to satisfy the § 2255(h) standard. However, we note that, pursuant to Taylor, which held that attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c), Graham’s challenge to his § 924(c) conviction is virtually guaranteed to succeed. See Taylor,

. 15 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 16 of 17

A “case announces a new rule if the result was not dictated by precedent existing at

the time the defendant’s conviction became final.” Teague v. Lane,

(1989). In Thomas, we held that “Davis’s constitutional rule is new” because its holding

“was not dictated by precedent.” Thomas, 988 F.3d at 788–89. And because, as in Thomas,

the Supreme Court had not decided Davis at the time Graham’s conviction became final,

Davis constitutes “a new rule” for purposes of § 2255(h)(2) in this case.

Next, a rule “was previously unavailable” if it was not available to the petitioner

“when he brought his last federal proceeding—including an authorization motion—

challenging his conviction.” Id. at 790. In Thomas, we held that because “Davis was not

decided until several months” after the petitioner filed his last motion challenging his

conviction, a Davis claim was previously unavailable to him. Id. So too, here. According

to the record, Graham “brought his last federal proceeding . . . challenging his

conviction”—his authorization motion—in April 2019, id., and the Supreme Court did not

decide Davis until June 2019. 5 Therefore, “the rule announced in Davis was previously

5 We note that in both Thomas and this case, we had decided Simms—which articulated the same rule that the Supreme Court later announced in Davis—at the time the petitioner filed his last authorization motion. While we did not discuss the prior availability of Simms in Thomas, we concluded that the Davis rule was previously unavailable because Davis had not been decided until after the petitioner brought his last authorization motion. This conclusion makes sense. As other circuits have noted, “whether a claim is ‘previously unavailable’ depends on when a ‘new rule of constitutional law’ is made retroactive by the Supreme Court.” In re Bowles,

(11th Cir. 2019) (emphasis added); see also Gray-Bey v. United States,

(7th Cir. 2000) (“[F]or purposes of § 2255[(h)](2) a rule is ‘unavailable’ until the Supreme Court renders its decision, for it is the high court’s decision that must be held retroactive[.]”). Therefore, following Thomas, the prior availability of Simms does not alter our conclusion that Davis was previously unavailable to Graham. 16 USCA4 Appeal: 20-221 Doc: 40 Filed: 03/08/2023 Pg: 17 of 17

unavailable to [Graham],” id., and Graham’s Davis claim satisfies the requirements set

forth in § 2255(h)(2).

IV.

For the foregoing reasons, Graham’s authorization motion is

GRANTED.

17