Whether a sentencing court may grant a successive 28 U.S.C. § 2255 motion to vacate a sentence based on the Supreme Court's invalidation of the Armed Career Criminal Act's residual clause in Johnson v. United States, and the appropriate standard of proof required for the movant to establish that the sentencing court relied on the residual clause

question presented is: Where a sentencing record is silent as to the basis for an enhancement under the Armed Career Criminal Act (ACCA), may a District Court grant a successive 28 U.S.C. § 2255 motion to vacate the sentence based on the Court’s invalidation of the residual clause in Johnson if (1) movant establishes that the sentencing court “may have” relied on the residual clause, as the Fourth and Ninth Circuits hold; or (2) must movant prove by a “preponderance of the evidence” that his sentence depends on the ACCA’s residual clause, as the Third Circuit holds; or (3) must movant prove that it was “more likely than not” that the residual clause led to the enhancement— without relying on post-sentencing caselaw clarifying (confirming) that the sentencing court could not properly have relied on one of the alternative clauses, as the First, Sixth, Tenth and Eleventh Circuits hold?! 1 Other petitions presenting variations of this question include: Prutting v. U.S., 18-5398 (pending); Perez v. U.S., 18-5217 (pending); King v. U.S., 17-8280 (pending); Oxner v. U.S., 17-9014 (pending); Robinson v. U.S., 17-8457 (pending); Couchman v. U.S., 17-8480 (pending); Casey v. U.S., 17-1251 (cert. denied June 25, 2018); Rhodes v. US., 17-8667 (cert. denied May 29, 2018); Westover v. U.S., 17-7607 (cert. denied April 30, 2018); Snyder v. U.S., 17-7157 (cert. denied April 30, 2018). ii QUESTIONS PRESENTED FOR REVIEW— Continued Regardless of how, or even whether, the Court answers this first question, petitioner presents a second question regarding the proposed mandate of the Court of Appeals. The District Judge, adopting the “may have” test, granted petitioner’s motion to vacate without a hearing. The Court of Appeals reversed, adopting a stricter, “more likely than not” standard and ordered that petitioner’s motion to vacate be dismissed, rather than remanding for a hearing. In response, the District Judge filed a “Notice to Parties,” explicitly declaring that she, in fact, had relied on the residual clause when she imposed the enhanced sentence. Still, the Court of Appeals denied rehearing. The second question presented is: Whether the Court of Appeals “departed from the accepted and usual course of judicial proceedings,” Rule 10, Rules of the Supreme Court of the United States, when, upon reversing the District Court’s grant (without a hearing) of petitioner’s motion to vacate, it ordered that the motion be dismissed, rather than remanding for a hearing, as mandated by 28 US.C. § 2255.