FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHEDRICK L. HENRY, No. 17-70170 Petitioner, v. OPINION M. ELIOT SPEARMAN, Warden, Respondent. Application to File Second or Successive Petition Under 28 U.S.C. § 2254 Argued and Submitted June 15, 2018 San Francisco, California Filed August 6, 2018 Before: Mary M. Schroeder, David M. Ebel, * and Ronald M. Gould, Circuit Judges. Opinion by Judge Gould * The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 2 HENRY V. SPEARMAN SUMMARY ** Habeas Corpus The panel granted California prisoner Shedrick Henry’s motion to file a second or successive 28 U.S.C. § 2254 habeas corpus petition urging that California’s second- degree felony-murder rule is unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015). The panel rejected the State of California’s arguments that Henry lacks standing to bring a vagueness challenge and that his claim is effectively moot. The panel held that there is a plausible position that Johnson did not limit its constitutional rule to certain features of the Armed Career Criminal Act’s residual clause that the State contends are absent from California’s second-degree felony-murder rule, and concluded that Henry has made a prima facie showing that his claim “relies on” the new and retroactively applicable rule of Johnson. COUNSEL Carmen A. Smarandoiu (argued) and Todd M. Borden, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Petitioner. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HENRY V. SPEARMAN 3 Gregory A. Ott (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent. OPINION GOULD, Circuit Judge: California prisoner Shedrick Henry was convicted of felony discharge of a firearm at an inhabited dwelling and second-degree murder in 1996. The jury was instructed that it could convict Henry of murder based on California’s unique 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 the U.S. District Court for the Northern District of California. He now timely moves for leave to file a second or successive 28 U.S.C. § 2254 habeas corpus petition, urging that California’s second-degree felony- murder rule is unconstitutionally vague under the U.S. Supreme Court’s precedent in Johnson v. United States, 135 S. Ct. 2551 (2015). We conclude that Henry has made the necessary showing to file another § 2254 petition, and so we grant Henry’s motion to file a second or successive habeas corpus petition. I The Antiterrorism and Effective Death Penalty Act (“AEDPA”) instituted a “gatekeeping” procedure for screening second or successive federal habeas corpus petitions. Felker v. ...
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