Skip to main content
Photo of a Law Library


Decided: June 8, 2016

The Fourth Circuit granted movant’s request for authorization to file a successive § 2255 motion for Habeas relief.

On July 19, 1988, Mr. Creadell Hubbard was indicted, and later convicted for armed bank robbery; carrying a firearm during a crime of violence; possessing stolen many; and conspiracy to possess stolen money. Based on the U.S. Sentencing Guidelines (“Guideline”) in place at the time of his sentencing, the court determined that because two of Hubbard’s prior convictions—second-degree murder and Kentucky third-degree burglary—Hubbard was a career offender.  Hubbard appealed is conviction, but his convictions and his sentence were affirmed.  In April 1997, Hubbard filed a motion to vacate under 28 U.S.C. § 2255, but the proceeding ultimately resulted in summary judgment against Hubbard and dismissal of his subsequent appeal to the Fourth Circuit.  In August 2015, Hubbard filed a pro se motion with this Court seeking an order authorizing the district court to consider a successive § 2255 motion—a motion that cannot be filed in a district court without prior approval from a circuit court of appeals.

Pursuant to § 2255(h), in deciding whether to grant the motion for pre-filing authorization, the court must determine whether it will rely on (1) newly discovered evidence, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.  Hubbard argued that the Supreme Court’s decision in Johnson v. United States produced a new rule of constitutional law made retroactive that Court, and that he was entitled to seek relief under the new rule.  The Court determined Hubbard’s only viable argument was that his Kentucky third-degree burglary conviction was no longer a predicate for establishing his career-offender status based on Johnson.  For a movant’s motion to be granted, the moving party need only make a prima facie showing that he presents a claim that relies on a [qualifying] new rule of constitutional law, and that he makes a sufficient showing of possible merit to warrant a fuller exploration by the district court.

In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (“ACCA”) for being unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment.  Although the government argued that (1) Johnson only applied only to the ACCA’s residual clause, and not the residual clause found at 18 U.S.C. §§ 16(b) & 924(c)(3)(B); and (2) that in Hubbard’s case, application of Johnson was procedural rather than substantive, and thus not retroactive, the Court was not persuaded.  In addition to finding no grounds for either of the government’s arguments—ultimately holding that 16(b) as incorporated under the Guidelines might render the career-offender residual clause applicable at the time Hubbard was sentenced unconstitutional, and that the rule in Johnson was substantive and therefore retroactive—the Court granted Hubbard’s request for authorization to file a successive § 2255 motion.

Full Opinion

Aleia M. Hornsby