In re: Kenneth Graham

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        conviction (and the associated ten-year prison sentence) is no longer valid.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


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        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
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        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).
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               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.
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               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



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        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).



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               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).”
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        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
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        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
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        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)).
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        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
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        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
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        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)
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        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, 

.
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               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.
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        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.




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