In today's opinion in In Re: Alford D. Embry, Judge Sutton notes the differing opinions on whether Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the Guidelines and whether it applies retroactively to the Guidelines. There is also some interesting discussion of when the statute of limitations for a 2255 on the issue would start to run: Johnson? Pawlak? Beckles?
Happy note: Making the argument that Johnson applies retroactively to the Guidelines meets the gatekeeping requirements for a second or successive 2255 petition. So people petitioning the Sixth for Johnson relief for Career Offender or 2K2.1 or suchlike will get remanded to the district court to litigate the issue.
CORRECTION: Upon closer reading - the gatekeeping question isn't even answered. The panel recognizes that the district court is also able to determine whether the gatekeeping requirements are met, and because of the restricted appeal rights, perhaps the district court is the best court to make gatekeeping decisions.
Frustrating note: Judge Sutton endorses waiting for the Supreme Court to rule in Beckles so that courts can have a definitive ruling on how Johnson applies in Guidelines cases. Furthermore, the best place to do that waiting is in district court.