Stork v. United States

Full title: FRANK E. STORK, Applicant, v. UNITED STATES OF AMERICA, Respondent.

Court: United States Court of Appeals For the Seventh Circuit

Date published: Aug 13, 2015

No. 15-2687 (7th Cir. Aug. 13, 2015)

Opinion

No. 15-2687

08-13-2015

FRANK E. STORK, Applicant, v. UNITED STATES OF AMERICA, Respondent.

Before JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge On Motion for an Order Authorizing the District Court to Entertain a Second or Successive Motion for Collateral Review.

ORDER

Frank Stork has filed a second application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a second or successive motion to vacate under § 2255. Stork, who allegedly received a sentencing adjustment based on a cross reference in U.S.S.G. § 2K2.1 to the residual clause in the career-offender guideline, U.S.S.G. § 4B1.2(a), proposes challenging his sentence under Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court decided that the imposition of an enhanced sentence under the residual clause of the Armed Career Criminal Act is an unconstitutional violation of due process because the provision is too vague.

Because Johnson announced a new substantive rule of constitutional law made categorically retroactive to cases on collateral review by the Supreme Court, Price v. United States, No. 15-2427 (7th Cir. August 4, 2015), and Stork has made a prima facie showing that he may be entitled to relief, we GRANT his application and AUTHORIZE the district court to consider Stork's proposed claim.

We caution the district court that our review is necessarily preliminary and limited to the conclusion that Stork has made a prima facie showing of a tenable claim under Johnson. The district court must decide first whether Johnson applies to U.S.S.G. § 4B1.2(a)(2) (the residual clause of the career-offender guideline) and, if so, whether Stork is subject to the adjustment under the new rule.