When the record is silent as to which enhancement clause applied, what showing is a § 2255 movant required to make to satisfy the requirements of § 2255(h)(2) and prove he is entitled to relief on the merits of his Johnson claim?

QUESTION PRESENTED In Johnson v. United States, this Court invalidated the residual clause of the Armed Career Criminal Act, but left intact the two remaining definitions of a “violent felony.” In Mr. Ziglar’s case, the sentencing court did not specifically indicate whether his prior convictions qualified as “violent felonies” under the residual clause, the enumerated offenses clause, or some combination of the two. To prove that his claim falls within the scope of the new constitutional rule announced in Johnson, a § 2255 movant must prove that his sentence was based upon the now-defunct residual clause. The question presented is: when the record is silent as to which enhancement clause applied, what showing is a § 2255 movant required to make to satisfy the requirements of § 2255(h)(2) and prove he is entitled to relief on the merits of his Johnson claim? As the Third, Fourth, and Ninth Circuits have held, may he satisfy the requirements of § 2255(h)(2) by showing that his sentence “may have” been based on the residual clause? Once the § 2255 movant passes through the gatekeeping requirement in § 2255(h)(2), may the court consider modern, existing precedent when ruling on the merits of the Johnson claim? Or, as a majority of Circuits have held, must the § 2255 movant bear the burden of showing by a preponderance of the evidence that he was sentenced solely upon the residual clause at the time of his sentencing hearing? ii