Prisoner challenging California’s second degree murder rule as unconstitutionally vague under Johnson v. United States (2015) 135 S.Ct. 2551 may file a second or successive federal habeas petition. In 1996, Henry was convicted in California state court of second degree murder and discharge of a firearm at an inhabited dwelling. The jury was instructed it could convict Henry of murder based on the second degree felony murder rule, which imputes the requisite malice from the commission of a felony that, viewed in the abstract, is “inherently dangerous.” Henry previously filed an unsuccessful federal habeas corpus petition. In 2017, Henry filed a motion in the Ninth Circuit for leave to file a second or successive habeas corpus petition, arguing that the second degree felony murder rule is unconstitutionally vague under Johnson. Held: Motion granted. Under AEDPA, a court of appeal must deny an application to file a second or successive habeas corpus petition unless it makes a prima facie showing both that the motion presents a claim not previously raised and that it satisfies one of two narrow exceptions. (28 U.S.C. § 2244, subd. (b).) In this case, Henry was required to make a prima facie showing that his proposed petition relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. (§ 2244, subd. (b)(2)(A).) The controlling question in this case was whether Henry made a prima facie showing that his petition “relies on” Johnson. The Ninth Circuit reasoned that section 2244, subdivision (b) imposes on the petitioner only a light burden and calls for a “permissive and flexible, case-by-case approach” to deciding whether a successive habeas corpus petition “relies on” a qualifying new rule of constitutional law. After analyzing Johnson and California’s second degree felony murder rule, the court concluded Henry made a prima facie showing that his claim “relies on” the new and retroactively applicable rule of Johnson and granted his motion to file a second or successive petition in the district court.

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/06/17-70170.pdf