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January 13, 2013 Day 359 of the Fifth Year - History

January 13, 2013 Day 359 of the Fifth Year - History



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President Barack Obama talks with Prime Minister Mariano Rajoy of Spain following their bilateral meeting in the Oval Office, Jan. 13, 2014


Fritton.

Fritton lies on the western borders of Lothingland, and gives name to a beautiful lake, known as Fritton Decoy, though its waters are included in the boundaries of several parishes.

Rising near Hopton and Lound, and pursuing a winding course as a quiet rill for about a mile, it swells into the wide mere, called Browston Broad, which, contracting again, is crossed by the high road at Lound Run, where the stream soon after expands into a noble sheet of water. Sweeping hence for more than two miles, in a western direction, by graceful curves, which are in some parts nearly a quarter of a mile in width, it discharges its waters by a narrow creek, which, flowing past the ruined site of St. Olave's Priory, mingles with the tides of the Waveney. The shores of this charming decoy, which present a variety of beauties of the milder kind, are principally fringed with natural groups of the graceful birch-tree, mingled with oaks, which sweep the margin of the water with their light and pendulous sprays. Pike, perch, and eels, of considerable size, are taken here, and wild fowl, of different species, resort during winter to the shelter of its numerous inlets. The catching of the latter by artificial pipes or nets affords a considerable profit to various proprietors whose estates environ the shores.

The parish of Fritton seems to have been known to our Roman masters, for in a small hillock, lying about half a mile north of the lake, are occasionally found pieces of pottery, evidently moulded by the hands of that people. In the time of Edward the Confessor, Fridetun contained, as it does still, the two manors of Fritton and Caldecot, then written Caldecotan. Both were the estates of Earl Gurth, whose free-man, Godwin, held in the former, two carucates of land for a manor, in which were woods sufficient to maintain twenty swine. This free-man possessed two draught horses, sixteen swine, 160 sheep, three goats, and three apiaries, valued at twenty shillings under whom two other free-men rented sixty acres of land, with a plough, valued at five shillings. This estate became, by forfeiture, the property of the Crown, and was managed for the Conqueror by Roger Bigot. (fn. 1) In the reign of Edward I., the manor of Fritton was held by Nicholas de Freton, and afterwards by the family of Fitz-Osbern. (fn. 2) In the reign of Edward III., Sir Robert de Mauteby was lord and patron, who was succeeded by John de Mauteby. In 1374, Sir John de Mauteby, son of Sir John de Mauteby, Knt., by his last will, dated at Fritton, leaves his body to be buried in the church of St. Edmund, at Fritton, before the altar of the blessed Virgin Mary. He bequeathed to Richard Galyerd, parson of the church there, whom he appoints one of his executors, forty pence, to be expended in masses for the good of his soul. Sir John's will was proved on the first of October in that year. In 1413, Robert Mauteby, Esq., enfeoffed Sir Simon Felbrigge, Sir Miles Stapleton, and Sir William Argentein, in divers manors and rents in Norfolk, and in Fritton manor in Suffolk, to fulfil his will. (fn. 3) These feoffees accordingly presented to the rectory here in 1425. John Mauteby, his son and heir, married Margaret, daughter of John Berney, of Reedham, Esq., by whom he had Margaret, his only daughter and heiress, who, marrying John Paston, Esq., son and heir of Sir William Paston, the judge, brought the manor and advowson of Fritton, inter alia, into her husband's family, where they continued nearly a century and half. On the 20th of October, in the tenth of Elizabeth, William Paston, of Paston, in the county of Norfolk, Esq., conveyed to John Throgmorton, of the city of Norwich, Esq., all that manor of Fritton, called Fritton Paston's, in Fritton, in the county of Suffolk, and all and singular the lands, tenements, gardens, pastures, feedings, marshes, woods, underwoods, liberty of foldage, waters, fishings, rents, advowsons, rectories, parsonages, and hereditaments whatsoever, to the same belonging, in Fritton, Belton, Caldecote, &c., within the Hundred of Lothingland, with all court-leets, &c., to hold to the said John Throgmorton, in fee, of the chief lord, &c., by the accustomed services, &c., and appointed John Caldecot, and Robert Brown, to deliver seizin, &c. John Throgmorton conveyed the said manor and premises, in the same year, to William Sydnor, Esq., who by deed indented, dated 6th of October, twenty-sixth of Elizabeth, in consideration of a jointure to Elizabeth, the wife of Henry Sydnor, his son and heir apparent, did enfeoff certain trustees, and their heirs, among other estates, of all that manor called Blundeston, and the manor of Fritton, with the appurtenances and as to the manor of Fritton, &c., did declare the uses to be to the use of the said William Sydnor, and Bridget, his then wife, and after to the use of the said Henry, and of his heirs male, by the said Elizabeth, his wife, and afterwards to the right heirs of the said William. The marriage between Henry Sydnor and Elizabeth took place February 1st, twenty-seventh of Elizabeth. Henry Sydnor died 10th of December, in the 10th of James I. William Sydnor died 26th of August, eleventh of James I. (fn. 4)

On the 30th of August, in the twelfth of James I., it was found that William, the eldest son of the said Henry, was then twenty-four years of age, and Elizabeth was then living and that the manor of Fritton Paston's was holden of Sir John Heveningham's manor of North Leet, in soccage. (fn. 5) By an inquisition taken at Eye, 16th January, ninth of Charles I., and by another taken at Bungay, 29th of May, tenth of the same reign, upon the death of William Sydnor, Gent., he was found to die on the 13th of January, 1632, seized, inter alia, of the manor of Frytton, alias Fritton Paston's, &c., and the advowson of the church, held in soccage of the manor of Lothingland, and valued at £5. (fn. 6) Dying without issue male, it was found that Elizabeth, Anne, Sarah, Mary, Hester, Susanna, Abigail, and Lydia, were his daughters and heiresses. On the 19th of December, 1651, the said eight daughters and co-heiresses conveyed the manors of Blundeston and Fritton to William Heveningham, Esq., as already detailed under Blundeston, who resold them to John Tasburgh, Esq., who in turn conveyed them to Thomas Allin, of Lowestoft, Knt., in 1668 from whom they descended to the Anguishes Richard Anguish, Esq., being lord in 1696. In 1704, Sir Richard Allin, alias Anguish, alienated the advowson of Fritton, as will be presently shown and in 1710, his trustees, by Act of Parliament, held the manor of Fritton, and conveyed it to Samuel Fuller, Esq. Richard Fuller, Esq., M.P. for Yarmouth, devised this manor and estate to the Rev. Francis Turner, one of the ministers of Yarmouth chapel, for life with remainder to the Rev. Charles Onley, of Essex remainder to Mr. Francis Turner, of Yarmouth, surgeon, for life remainder to James Turner, of Yarmouth, banker, for life remainder to the Rev. Joseph Turner, Dean of Norwich, for life remainder to the Rev. Richard Turner, perpetual curate of Yarmouth, for life remainder to the Rev. Francis Turner. Mr. Francis Turner, surgeon, during the lifetime of the Rev. Francis Turner, purchased the life interests of those in remainder, and devised the same to Elizabeth his wife, for life. Then one-fourth to Mr. Dawson Turner, Mr. James Turner, and Mr. Powell one-fourth to the Rev. Dean Turner one-fourth to Mrs. Dade and one-fourth to the Rev. Richard Turner.

All these several persons, by deed dated the 9th and 10th of November, 1819, conveyed the manor and the bulk of the estate to Andrew Johnston, of Hempnall, in Norfolk, Esq., in fee. This gentleman, who was a West India proprietor, went to Jamaica, soon after his purchase and in July, 1830, the manor and estate were sold by auction at Yarmouth, and were purchased by Francis Turner, Esq., of Lincoln's Inn, London, who is the present lord. The name of the manor is Fritten, alias Fritton, alias Fretton, alias Freton Paston's.

The advowson of Fritton, after having remained so many centuries with the manor, was granted, November 4th, 1704, by Sir Richard Allin, alias Anguish, to Robert and Francis Baldwyn. In 1714, Samuel Fuller purchased it, inter alia, and in the following year, the said Samuel Fuller, the elder, and Samuel Fuller, the younger, by indre of lease and release, for a competent sum of money, conveyed the advowson of Fritton to Gregory Clarke, of Blundeston, and his heirs, with condition to do any further act of assurance at the cost of Mr. Clarke. John Fuller, senior, being then beyond sea, a recovery was suffered of the advowson, and a good title made. Gregory Clarke, by will bearing date June 3rd, 1726, bequeathed this advowson, with all its appurtenances, to his brother-in-law, James Birkin, Esq., from whom it passed by marriage to the family of Burroughes, of Burlingham, in Norfolk, of whom it was purchased by the Rev. Francis William Cubitt, who is the present patron and incumbent. (fn. 7) This gentleman married Jane Mary, daughter of the Rev. Henry Nicholas Astley, son of the late Sir E. Astley, Bart., and uncle to the Lord Hastings and has issue Frank Astley Cubitt, Spencer Cubitt, and three daughters, Lucy, Jane, and Sophia. He is a younger brother of Edward Cubitt, Esq., of Honing Hall, in Norfolk and has a handsome seat overlooking the most beautiful part of Fritton Lake.

The Manor of Caldecot Hall.

In the time of Edward the Confessor, Earl Gurth held the manor of Caldecot, which comprised a carucate of land and Bund was his tenant. It was then worth 10 shillings. At the Norman Survey its value had decreased to 8 shillings, when it was returned as the property of Ralph Balistarius, the same who held Burgh Castle. (fn. 8) Like all other estates, it soon fell into the hands of a family that assumed their name from the place, and accordingly, in the reign of Henry III., we find Henry Caldecot obtaining a license for free-warren, a market, and a fair, here, and in Belton. (fn. 9)

In the following reign, this Henry Caldecot, who is then termed a knight, is returned as holding his estates in Fritton, Caldecot, and Belton, of the King, in capite which estates he derived from his ancestors, who obtained them from Robert Estan.

Henr: de Caudecotes, miles, tenet de d'no rege in capite pla: socag: in Freton Caldecotes et Belton, de p'qsito anc: suor: pt: socag: q'd fuit Rob'ti: Estan faciend: in p: an: Dno: R: xxvj. sol: iiij d . et p: socag: illo q'd fuit p'dcī Rob'ti: Estan v. sol: set q't socag: ip'e Hen: teneat, neciunt, nec inquirere possunt. (fn. 10)

This Sir Henry Caldecot bore for arms, per pale or and azure, a chief gules. He left a son, William de Caldecot, living in the eighth of Edward II., who by Joane his wife, who re-married to Bartholomew Daviller, left a son, John de Caldecot, mentioned in the fifth of Edward III. The family unquestionably derived their name from this manor, in Fritton, which they seem to have given to lordships in Onehouse and Fynborough. They were also land-owners in Debach.

The manor of Caldecot Hall was, probably, soon after the property of the Fastolfs, for Blomefield, the historian of Norfolk, says that Sir John de Ulverstone, Knt., was feoffee, in 1390, of the manor and advowson of Fritton, for Sir John Fastolf, Knt. This, however, could not be strictly correct, as the manor and advowson of Fritton were at that time the estate of the Mautebys, as already shown. Blomefield had probably confounded this lordship with that of Caldecot, in Fritton, which, it appears, Sir John Fastolf presented to Magdalen College, Oxford, as we learn from the following authority: "It is ascertained that the Boar's Head, in Southwark, now divided into tenements, and Caldecot manor, in Suffolk, and probably other estates in Lovingland, in the same county, were part of the benefactions of Sir John Fastolf, Knt., to Magdalen College, Oxford." (fn. 11) The Master and Fellows of this Society are still owners of the manor of Caldecot Hall.

The estate has been long leased out, and by the quit-rentals for the manor of North Leet it appears, belonged in 1664 to William Fidder, Gent. It was afterwards leased to Mr. Alexander Hasler in 1724 to Mr. Hopton in 1749 to Mr. Hickman and in 1771 to the Governors of the Grey Coat Hospital, in London, who are still lessees of the estate, though the college retains the manor.

Will'us de Wydingham, et alii dederunt Rico Galicio, parsone ecclie in villa de Freton in Lothynglond unam rodam terre cum p'tin ib'm. (fn. 12)

The Church,

which is dedicated to St. Edmund, and valued in the King's books at £6. 13s. 4d., comprises a nave and chancel, without aisles, and a circular tower, in which hangs one bell.

Three different periods of construction may be assigned to the component portions of this remarkable edifice. The tower, which is very old, and exhibits in its masonry a mixture of bricks and flint-work, appears raised on a foundation yet more ancient. The nave, by far the most modern part of the structure, has been rebuilt without any regard to symmetrical adjustment with the other members of the fabric, and projects considerably towards the south, beyond the foundations of the ancient church, thereby producing a very unpleasing effect, especially when viewed from the south-east. A reference to the annexed ground-plan will show the extent and relative position of this nave, as appended to the old tower and the chancel. The chancel, which is the oldest, and unquestionably a portion of the original church erected here, is a very singular structure, and, though small in size, is built with great solidity, and considerable care. It has been termed "a perfect specimen of Saxon architecture," but without any just reason, as it possesses a most decided Norman character, except where barbarized by some Gothic improver of the Tudor era.

The east window ranges in a right line with the centre of the tower, and is the only original aperture in the chancel. It is a plain semicircular Norman light, scarcely five inches in width, much splayed within, and finished with external dressings of squared stone, laid flush with the wall.

This ancient chancel formed a portion only, in the writer's opinion, of the original structure, serving, perhaps, as the [Ieron Bema], or sanctuary, of the edifice, and was never an entire church in itself. The interior is covered with a vaulting of rubblework diagonal lines proceed from the four corners of each compartment of the roof, and cross in the centre but there are no ribs or groins of wrought stone. It is now separated from the nave by a low pointed arch, and entered by a descent of one step through a screen of oak. An interior view of this chancel, with the assistance of the ground-plan and exterior, will elucidate, it is hoped, the peculiarities of this edifice. The nave, raised probably during the decorated period of church architecture, requires no especial notice, and is covered, like the chancel, with thatch. There is a pedestal, or projecting pipe of a piscina, attached to the south wall of the chancel, and several old stones, without inscriptions, lie on the floor. The ancient font has disappeared, and in its place stands a wooden pillar, somewhat in shape like the support of a sun-dial. To this is affixed, when required for the sacrament of baptism, a large silver vase, "The gift," as we learn from the circumscription, "of Richard Fuller, Esq., of Fritton Hall, to the parish church of Fritton, in Suffolk, in the year 1769." This unmeaning, but costly bowl is, therefore, the dedication of tastelessness, but not the offering of parsimony. The small east window contains a few pieces of stained glass, the fragments of a splendid enrichment which once sparkled here in greater profusion, as we learn from a survey of this church made about the year 1573. (fn. 13) At that period the following armorial ensigns were in the windows of "Freton church."

Gul: 3 gemelles, or, a canton arj: syded with or and gules, quarterly a battune in bend gules. Mauteby impaled with Lovaine . . . . . . . . and Clavering syded. Caley impaled with Mauteby. B and or, pale, a chief gul: impaling Repps.

In the parish registers is the following rather curious entry: "On the 17th day of August, 1816, Hannah Freeman did penance in this church for defaming the character of Mary Banham, spinster." I transcribe the next article, as showing the price of wearing apparel in the year 1701, furnished to a parish pauper.

"Layd out for the moder Codnum s. d.
For a gowne 4 6
More, for a par of bodyes 2 2
For a shift 2 0
For a petty coat 1 10
For a pair of storkings 1 8
For a mentell 1 8
For a hat 10
For a pair of shoes 2 4

Monuments.—The Rev. William Bevan, clerk, many years Rector, died June 14th, 1767, æt. 60. Francis Turner, Esq., of Great Yarmouth, and of this parish, died 17th Dec. 1796, æt. 54. Elizabeth, his relict, died 5th Jan. 1830, aged 84. On a tablet imbedded in the exterior face of the chancel wall: Thomas Skeet, Rector 45 years, died y e 22nd Sept. 1720, aged 68. This gentleman must, therefore, have been inducted in his twenty-third year.

Rectors of Fritton.

Rectors. Date. Patrons.
Robert le Rye 1306 Agatha, widow of Nicholas of Freton.
William de Sotherton 1318 Katharine Fitz-Osbern.
Robert de Burshyerd 1322 Ead.
William de Aldeby
Stephen de Redham 1328 Ead.
John le Neve, de Belton 1329 Katharine Fitz-Osbern.
John de Belton 1332 Ead.
Richard Galyerd, de Sandringham 1349 Robert de Mauteby, Knt.
John Hunt 1383 John de Mauteby.
Robert Bokenham, de Ellingham 1389 Id.
John Cade 1425 Simon Felbrig, and others.
John Atte Chirche 1430 Id.
John Holtman 1445 John Paston.
John Wimondham, Canon: S: Olavi 1449 Id.
William Tindale 1453 Id.
William Beverley 1458 Id.
Thomas Ennok 1460 Id.
William Norwich 1474 Margaret Paston, of Mauteby.
Edward Andrew 1483 Ead.
John Heydon 1485 John Paston, Esq.
Thomas Wilson 1505 William Paston, Esq.
Peter Man
Thomas Pydcock 1532 Id.
Robert Smith 1563 The Bishop, by lapse.
John Underwood 1563 Clement Paston, exōr of William Paston, Esq.
John Watlynge 1585 William Sydnor, Esq.
John Underwood 1598 William Sydnor, of Blundeston.
Jernegan Jenney 1600 Id.
John Underwood 1624 Id.
John Caley 1640 Cler. Talbot.
William Barbour 1674 Thomas Allin, clk.
Thomas Skeet 1675 Id.
Gregory Clarke 1720 Gregory Clarke, Gent.
George Ogle 1726 Eliz. Clarke, widow.
George Ogle, 2nd time 1727 Ead.
Thomas Carter 1731 John Burkin, Esq., and James Carter, clk.
William Bevan 1742 James Burkin, with consent of John Fowle, Esq., his guardian.
William Buckle 1767 Sarah Allin, widow.
Charles Buckle 1788 Catharine Buckle, spinster.
Francis William Cubitt 1829 Himself.

Estimatio ejusdem x marc. Norwich Domesday.

The parish of Fritton contains 1562 acres, 3 roods, 31 perches of land, of which 69 acres, 17 perches, are covered by the lake. Domesday Book makes no mention of a church or glebe lands here: the glebes at the present day include 13 acres, 3 roods, 33 perches, and the rent charge in lieu of tithes amounts to £270.


Local Nature Photographer Encourages Others to Catch the Bug

Tiger swallowtail butterfly, Virginia’s state insect, on the author’s home-grown mammoth sunflower.

Move over, supermodels. There are some new beauties in town — bugs! Beautiful, beguiling, bewitching bugs. Or to be more specific, arthropods for you scientists.

Newbie to expert photographers can capture these colorful critters on “catwalks” in their own backyards and on scenic “runways” at Fairfax County parks. These beauties and cuties are not just butterflies. Take a gander at neon-green, six-spotted tiger beetles and rainbow-colored handsome meadow katydids with baby blue eyes. Or fluffy pink- and peach-colored rosy maple moths.

And don’t get me started on spiders, like this yellow garden spider. You may not want these mini-monsters in your bedroom, but once you peer through a closeup lens at these beautiful beasts peering back at you with eight eyes, you might get hooked. There’s a whole mysterious world of hidden beauty if you just stop and look closely. These cool creatures sport a photogenic cornucopia of shapes, sizes, patterns, and textures.

I learned to love bugs as an adult after photographing them for several years, but I didn’t fall deeply down the insect rabbit hole until I bought my first macro lens and macro flash. It was a proverbial game changer, but you don’t need a fancy camera to capture fanciful photos. You can also use a cell phone or an inexpensive point-and-shoot camera.

Cell phones are great for capturing overall photos of insects and their cousins, however, a point-and-shoot camera with a macro mode will let you get much closer. You just have to consult your camera’s manual to use the proper focusing technique. Choose a single, moveable focal point for the sharpest images.

If you want top quality and extreme close-ups to enlarge and print, use a DSLR or mirrorless camera coupled with a macro lens. A true macro delivers 1:1 proportion, but many photographers just prefer close-ups and typically use 90-105 mm lenses. Macro-specific flashes can help transform “good” photos into jaw-droppers. Tripods are typically preferred for macros, but hand-holding is easier since bugs often squeeze into tight spots.

So when and where should you hunt for these supermodels?

Summer’s the best time to explore, though many insects are easy to find in the fall and the spring. You can spot them on flowers, clinging to cattails, hiding under leaves, and just hanging out in dirt. Sometimes you’ll spy them dangling from the mouths of birds like sunflower-yellow prothonotary warblers or hanging with their BFFs like cobalt-blue skinks and itsy-bitsy green treefrogs. In the winter, you can peek under rocks or pop into the Smithsonian National Museum of Natural History’s hands-on indoor Insect Zoo and Butterfly Pavilion.

Back in Fairfax County, you may wonder if some of the Fairfax County Park Authority’s whopping 400+ small to large parks are better for bugs than others. A huge park like Huntley Meadows, with its epic boardwalk stretching over water, is a prime place to find rainbow-colored katydids. Green Spring Gardens is a magical draw for butterflies to beetles. Some flowers even brighten its winter landscape.

Just step foot into almost any park or along any leg of the county’s more than 330 miles of official trails — click on https://www.fairfaxcounty.gov/parks/trails/trail-buddy to pinpoint a trail — and you might come eye to eye with that glowing neon tiger beetle. Or at least one of his cute kinfolk.

Check out native wildflowers like red or purple bee balm for pretty pollinators like hummingbird moths and teensy green sweat bees. Endangered flaming-orange monarch butterflies and their yellow-black-and-white-striped monarch caterpillars survive and thrive on pink and purple milkweed wildflowers.

When you look closely for bugs, you might first overlook some tiny ones that appear boring, bland, or uninspiring. But if you nab a close-up, you might get lured into its micro world to appreciate its beautiful colors, shapes, or patterns. It’s almost like photographing underwater for the first time and discovering brightly colored corals and neon-tinted fish hidden under a dark, watery cloak.

You don’t have to know much about bugs to photograph them, but if you are just a tad curious — whether you’re a school kid or an adult — you may yearn to learn more, especially after using the free iNaturalist app to identify them and post them to that important citizen-science database. By the way, “In common language, people often use the term ‘bug’ to mean any insect, as well as small arthropods that are not insects,” say the University of Florida’s experts. So, like them, when I say “bugs,” I mean “insects and other small, land-dwelling arthropods.”

“There are a seemingly infinite variety of them, small and large, drab and colorful, and each of them has a story,” adds fellow Virginia Master Naturalist and bug photographer Judy Gallagher. She reminds us, “Insects are an under-appreciated but very important part of our ecosystem.”

Think like Magellan while you’re exploring. You might discover a whole new species right here in Fairfax. Just this year, Virginia Tech discovered a new species on its own campus. They dubbed the dark red bug a “Hokie twisted-claw millipede.”

Barbara J. Saffir’s selfie with a hackleberry emperor butterfly.

Personally, while I love contributing to science and art by sharing my photos, I’m basically just a hardcore nature photography junkie, so I want to get others hooked on these supermodel-beautiful bugs!

Author Barbara J. Saffir is a Fairfax Master Naturalist and an award-winning nature photographer who provided the photos for her story.


Locorruption reloaded: We reveal Gupta kickback contracts worth R9bn

Three years ago today amaBhungane and its #GuptaLeaks partners revealed a kickback contract between the Guptas and a locomotive manufacturer contracted to Transnet. Now we publish eight. These, and banking data, show how comprehensively the crime family pillaged SA’s state rail company – in cahoots with two Chinese manufacturers that have since merged to form the world’s biggest rail conglomerate.

It is a sheaf of paper just 15mm thick. But the ink on its pages records kickbacks totalling R9-billion paid or pledged to the Guptas and their associates.

These pages and offshore banking data tell the story of how Transnet’s ambitious plan a decade ago to renew its locomotive fleet was repurposed to extract loot systematically and on an unprecedented scale.

Today we publish those pages – eight kickback agreements, most of them made public for the first time – and an analysis of the bank data to show that by late 2016, Gupta front companies had received at least R3.7-billion, two fifths of the promised R9-billion.

After 2016 the bank data goes dark but the pillage likely continued.

The kickbacks were paid by two locomotive manufacturers now merged to form CRRC Corporation, the Beijing-based conglomerate that boasts of being the world’s largest supplier of rail equipment.

But the money came from ordinary South Africans via Transnet, a state-owned company. It followed a simple formula: whatever Transnet paid the CRRC companies, they paid the Guptas a cut of, usually 21%.

The Gupta-CRRC heist spans distinct Transnet orders for 95, 100, 359 and 232 locomotives, plus relocation and maintenance add-ons, with an aggregate value of about R42-billion – a twisted monument to the extent of their capture of the rail utility and the collusion of its executives, board members and politicians.

The kickback agreements reveal the complicity of CRRC officials at the highest level not surprising considering that more than a fifth of their Transnet revenue was pledged to the Guptas. This does China no favours as it battles to establish itself as a champion of the developing world and to overcome the perception its firms bribe more readily than their Western counterparts.

Attempts over the course of weeks to reach CRRC for comment by email, phone and via the Chinese embassy have drawn no substantive response. CRRC is listed in Hong Kong and Shanghai but the Chinese state is its controlling shareholder.

In June 2017, after amaBhungane and its #GuptaLeaks partners published the first evidence of kickbacks having been paid on the locomotive contracts, Transnet wrote to a local CRRC subsidiary seeking “clarification”.

It wrote back, stating categorically: “We have never had any engagement and/or dealings with the Gupta Family and/or its associates in relation to the agreement Project 359.”

The Guptas, whose whereabouts are not clear, did not respond to emails sent to known addresses for a member of the family and their lieutenant Salim Essa.

Conglomerate corruption

“The 1st batch of Chinese E-loco landed at Africa!” shouts a November 2013 news item on CRRC’s website.

Accompanying photographs show Zhou Qhinghe, then chief executive of CSR Zhuzhou Electric Locomotive Co, celebrating the delivery in Tshwane of the first locomotives from an order of 95 that Transnet had placed with his company’s South African subsidiary.

Zhou now straddles corporate, party and parliamentary politics. He is board chair-cum-Communist Party secretary of the now-renamed CRRC Zhuzhou and a member of the National People’s Congress, China’s highest organ of state power.

In March 2014 Zhou, who is wont to expound on his company and country’s “go out” or “go global” strategy, was in South Africa again.

This time he had come for the signing ceremony of new Transnet orders for 100 and 359 electric locomotives from his company and 232 diesel locomotives from a subsidiary of a second Chinese rail group, CNR.

This was reportedly the single biggest order of Chinese high-end rail equipment globally, making a not-insignificant contribution to the soaring fortunes of CRRC Corporation (2019 revenue: R567-billion), which arose from the subsequent merger of the CSR and CNR groups.

A news report reproduced on CRRC’s website recounts a “very interesting moment” when Transnet wanted a representative of the local CSR Zhuzhou subsidiary to sign their contract, while “Chinese regulation” dictated that Zhou as head of the parent company should sign.

The impasse was broken, according to the report, when a lawyer suggested the local representative issue a power-of-attorney delegating Zhou to sign for him. “The story of ‘the employee authorised his boss to sign contract’ is still a joke between colleagues.”

But Zhou was not done going global or signing.

Think of a car salesman offering the proud owner of a new vehicle a service plan for “guaranteed peace of mind”. In this case the salesman brought in help to convince the customer.

Zhou’s signature appears alongside that of Essa, the Gupta lieutenant, on a “business development services” agreement dated 10 June 2015, Sandton. It provided that CSR Zhuzhou would kick back 21% to a Gupta front in Hong Kong should the latter convince Transnet to agree to a 12-year maintenance plan.

Transnet awarded the R6.2-billion deal to CRRC Zhuzhou, as it was by then called, the following year. Transnet eventually pulled out, but not before paying CRRC a 10%, R618-million advance. Of this, according to our analysis, 21% went to the Guptas.

Other senior CRRC executives’ names also litter the kickback contracts with the Guptas. They include Zhou’s colleagues Guo Bingqiang and Hu Yuewen from CSR, and Ma Zhan and Zhu Zhiyong from CNR.

Et tu, 232

The R9-billion total value of the locomotive kickback agreements – against the R5.3-billion estimated before – includes a previously unknown 21% kickback agreement between the Guptas and CNR.

A CNR Hong Kong subsidiary entered into an “exclusive agency agreement” with a second Gupta Hong Kong front represented by Essa, pledging it 21% of the R9.9-billion total contract price of the 232 diesel locomotives CNR would supply Transnet.

Our analysis shows that CNR honoured the kickback commitment up to the point where our bank data ends.

Like CSR, CNR and the Guptas also found a post-sale mechanism to relieve Transnet of more money. In this case it was under the pretext of Transnet’s decision to move the local assembly facility from Gauteng to Durban “to stimulate development in other parts of SA”.

We have previously reported how Gupta-linked consultants were roped in to convince Transnet of a R647-million payment to “compensate” CNR for the move. CNR paid the consultants R67-million, much of which flowed to local accounts controlled by Essa.

Now our analysis of the bank data concludes that the Guptas got their cake and ate it. Over and above the local kickback, CNR transferred R116-million to one of the fronts Essa had set up in Hong Kong.

Cash for cover/coal

The day of the last nationwide municipal elections, 3 August 2016, stands out like a sore thumb in the Gupta kickbacks timeline.

Effective that day, CRRC signed off on two addenda with the Gupta Hong Kong fronts amending their earlier kickback agreements in relation to the 95, 100 and 359 locomotive orders. The purpose was to put a quarter of a billion rands in Gupta pockets – fast.

By that time the maintenance plan kickback agreement which Zhou, the CSR Zhuzhou boss, had signed with Essa was covered in 14 months’ dust. Though Transnet had asked locomotive manufacturers to submit maintenance plan proposals a year earlier, it had yet to make an award.

Now there was urgency. The addenda specified that “within 10 days” of CRRC Zhuzhou receiving a letter of award from Transnet for the maintenance plan, CRRC companies would release the dollar-equivalent of R250-million that they had previously withheld from kickbacks paid to the Guptas.

To explain: Under the earlier kickback agreements, the CRRC companies were entitled to retain 15% of each kickback until Transnet had fully paid for the locomotives. This was to cover them against potential claims by money launderers who previously fronted for the Guptas at a 15% fee but got sidelined.

The release of these retained amounts was to be over and above the 21% promised to the Guptas on the maintenance contract itself.

Nine days after the addenda effective date, Transnet’s letter of award was in the post.

And another three weeks later, our bank data analysis shows, CRRC released the R67-million retained in respect of the 100 locomotives to the Guptas. Although our data is not conclusive, it likely released the 95 and 359 locomotive retentions of R53-million and R130-million too.

Why the urgency? It was not as if bringing the retention releases forward was all in favour of the Guptas, as the addenda entitled CRRC to offset the risk by withholding parts of future payments again.

A theory, enticing because the addenda effective dates coincided with the date of the municipal elections, is that the Guptas had party funding obligations to fulfil after all, political cover for a looting spree of this magnitude does not come for free. The Guptas are known to have made party contributions.

A plausible alternative is that the Guptas had overextended themselves when their Tegeta Exploration and Resources controversially bought Optimum Coal Holdings from Glencore a few months earlier for R2.15-billion.

A former Gupta acquaintance said on condition of anonymity: “They always had cashflow issues, so [it] comes as no surprise. If you offered Tony [Gupta] $10-million today or $30-million in 18 months he would always have taken the today money.

“They had only just scraped the purchase money for [Optimum] together and a lot of ‘loans’ which were used to cover the purchase price needed to be unravelled around that time period.”

Recovery railroaded

When public money is stolen, two things are expected to follow: prosecution and recovery.

The National Prosecuting Authority’s investigative directorate was set up a year ago to unravel state capture crimes. To date it has little to show for its efforts.

Directorate head Adv Hermione Cronjé was quoted in January as saying she was “gobsmacked at the scope and extent of the devastation” wrought by state capture.

Putting together successful prosecutions were hampered by the pervasiveness of corrupt practice. “In some institutions, it’s hard to pick out people who can credibly give evidence in a criminal trial about what happened because they were either complicit or will struggle to answer questions about what they did to stop what was happening.”

On the recovery front Transnet has achieved little. It pulled out of the 12-year maintenance plan and convinced CRRC to reimburse the R618-million advance.

But that is a drop in the ocean of the R42-billion in procurement from CRRC companies tainted by the Gupta kickback agreements.

Last December Transnet said in a statement that it planned to go to court to declare unlawful and set aside the CSR 359 and CNR 232 locomotive contracts. Transnet wanted a mixture of reimbursement and no further deliveries.

Six months later, Transnet has yet to go to court. After Portia Derby’s appointment as Transnet chief executive in January, she brought in new top managers including new chief legal counsel, Adv Sandra Coetzee. They went back to the drawing board.

Transnet said in response to questions that Coetzee “is reviewing all transactions and, based on legal and commercial grounds, will identify actions to be taken in relation to cancellation, negotiation, recovery, and any criminal proceedings to be instituted”.

Should Transnet pluck up the courage and go for CRRC – and Derby pass the test of raking through the ashes left by Molefe, her ex-husband – it faces a booby trap left by the conspirators.

While partial prepayment for large equipment orders is not unusual, Transnet took it to new levels for the CRRC companies. It paid advances of 10% on the 95 locomotives contract, 60% on the 100 contract, 30% on the 359 contract, 15% on the 232 contract, 50% on the 232 relocation and 10% on the maintenance plan.

About R10.8-billion left Transnet coffers before it saw its first locomotives. Putting aside the fact that part of each advance went straight to the Guptas, it also exposed Transnet to great risk.

For a substantial part of each contract’s duration, Transnet would have paid the supplier more than the total price of the locomotives it had received up to that point. Cancelling the contract would have left Transnet, and not the CRRC company, out of pocket. Boom.

This still applies to the CNR contract, where only about 60 of the 232 locomotives have been delivered after six years, and to a lesser extent the CSR 359 locomotives contract, where about 100 locomotives remain outstanding.

Advance payment guarantees were in place, but getting them honoured may be like pulling hens’ teeth. Trying to get the CRRC companies to make restitution beyond that – for the billions overcharged and paid to the Guptas – may be as futile as amaBhungane’s attempts to get answers from CRRC.

* Not for the fainthearted: Read How the Guptas’ R9-billion loco heist went down, our detailed analysis of each deal and the kickbacks paid on it.

* In this article, unless specified, “the Guptas” is shorthand for the extended family headed by Ajay, Atul and Rajesh Gupta and relevant business associates. All amounts exclude VAT. Foreign currency amounts are converted to Rand at our best estimate of the exchange rate used at the time, not current rates.
*Additional reporting by Susan Comrie.


The Real Wolf 359

Over the past couple of years I have been rewatching quite a few classic science fiction shows and movies in my spare time some of which I have not seen in decades. One of the gems I recently watched was a 1964 episode of Outer Limits entitled “Wolf 359” where a scientist studies a miniaturized recreation of an environment of a planet found orbiting the nearby star, Wolf 359. Of course my younger readers would recognize this star as the site of the famous “Battle of Wolf 359” originally seen in the episode of Star Trek: The Next Generation entitled “The Best of Both Worlds Part II” which first aired a quarter of a century ago. And we see this famous battle against the Borg from a different perspective in the premier episode of Star Trek: Deep Space Nine, “The Emissary”. A quick search online reveals a smattering of other works of science fiction set in the Wolf 359 system and I am sure that there are many more still that have been published over the decades. Given that it is the setting of these various stories, what is the real Wolf 359 like?

The Star

Wolf 359, also known as GJ 406, is a dim red dwarf star with a V-magnitude of 13.5 located in the constellation of Leo. It first came to the attention of astronomers about a century ago because of its relatively high proper motion of 4.7 arc seconds per year first measured in 1917 by German astronomer Max Wolf (1863-1932) of the Heidelberg-Königstuhl State Observatory. It was the 359 th high proper motion star Wolf cataloged. Because of brief flares resulting in temporary increases in the brightness first observed in 1969, Wolf 359 received the variable star designation CN Leonis.

The dim red star indicated by the arrow in this image is Wolf 359. This view covers an area of 16合 arc minutes with north up and east to the right. (Klaus Hohmann)

Because its high proper motion suggested that it is relatively nearby, the parallax of Wolf 359 was measured for the first time in 1928 revealing it to be one of the closest known stars. The best distance measurement available today for Wolf 359 shows that it is 7.78 light years away making it the fifth closest star system currently known. Its low apparent magnitude despite its proximity means that Wolf 359 is exceptionally dim with a luminosity of only 0.0009 times that of the Sun. With an estimated radius of only 0.14 times the Sun’s and a mass of just 0.09 times, Wolf 359 is among the smallest known red dwarf stars and just barely above the minimum mass a star can have and still maintain hydrogen fusion in its core.

A comparison of Wolf 359 with Jupiter and the Sun. (David Jarvis)

Studies of the spectrum of Wolf 359 show that it is actually cool enough to display molecular absorption features for TiO, VO and even water vapor with a surface temperature of about 2800 K. The spectral type, which has varied from source to source, is considered to be about M5Ve with the “e” indicating the presence of emission lines in its spectrum. Combined with its observed X-ray luminosity, Wolf 359 is the only star of its spectral type observed to display chromospheric and coronal activity. Comparing the properties of Wolf 359 with models of stellar evolution indicates that it is a relatively young 100 to 350 million years old – a mere blink of an eye compared to this star’s estimated lifetime of on the order of trillions of years. The observed activity of this small star would be explained by its relative youth and should decrease quickly as it ages. Interestingly, Wolf 359 displays no excess infrared emissions hinting that it is not surrounded by large amounts of dusty debris left over from the formation of any planets.

An artist’s depiction of an active red dwarf star orbited by a planet. (David A. Aguilar – CfA)

Based on a conservative definition of the habitable zone (HZ) by Kopparapu et al., the HZ of Wolf 359 for an Earth-mass world runs from about 0.031 AU, corresponding to the runaway greenhouse limit, out to about 0.063 AU for the maximum greenhouse limit. These orbits have periods in the 6.6 to 19-day range and assumes that there are no insurmountable impediments for habitability around a star like Wolf 359. Of course, if Wolf 359 does have a planet orbiting in its HZ with the required properties, it would still be in its earliest stages of formation and it would likely be hundreds of millions of years before life might firmly take hold.

Search for Planets

Like other nearby red dwarf stars such as Proxima Centauri and Barnard’s Star, Wolf 359 is considered an ideal candidate for the search for small companions like extrasolar planets and has been a target for a variety of surveys for decades (see “The Search for Planets Around Proxima Centauri” and “The Search for Planets Around Barnard’s Star”). Direct imaging searches for faint companions during the 1990s using NASA’s Hubble Space Telescope and ground-based instruments failed to find any evidence for very low mass stellar companions more than about 1 AU from Wolf 359 which corresponds to orbital periods longer than about three years. Given its relative youth, the presence of brown dwarfs, which would still be radiating large amount of heat from their formation, can also be safely excluded in this region.

In addition to direct imaging, searches using precision radial velocity measurements and astrometry, which measure the reflex motion of a star resulting from an orbiting object, are expected to be promising given the relative closeness of Wolf 359 and its diminutive size. A recently published paper with Cassy Davison (Georgia State University) as the lead author presents the results from the most thorough search for extrasolar planets in this system as part of a larger survey of nearby M-dwarf stars. Unlike most other surveys, Davison et al. combined the results of radial velocity and astrometric measurements to search for extrasolar planets.

NASA’s IRTF at the Mauna Kea Observatory in Hawaii used for a recent radial velocity survey of nearby red dwarf stars. (NASA/University of Hawaii Institute for Astronomy)

For the radial velocity measurements, Davison et al. analyzed infrared spectra acquired using the CSHELL cryogenic Echelle spectrograph on NASA’s 3.0-meter IRTF (Infrared Telescope Facility) located at the Mauna Kea Observatory in Hawaii. They used spectra obtained during a dozen observation sessions between May 2009 and March 2011 to derive the radial velocity with a typical measurement precision of ±83 meters per second. These data, gathered over 683 days, were sufficient to detect objects with orbital periods less than about 100 days corresponding to a maximum orbital radius of about 0.19 AU.

For the astrometric measurements, Davison et al. employed data acquired using the 0.9-meter telescope at the Cerro Tololo Inter-American Observatory as part of an ongoing program to observe nearby stars. The team used 139 R-band images taken over the span of 12 years with combined angular measurement errors of 5.2 and 6.6 milliarc seconds in right ascension and declination, respectively. These data were best at detecting objects with orbital periods from 2 to 8 years corresponding to orbital radii in the 0.7 to 1.8 AU range.

These color-coded plots show the fraction of planets that could have been detected orbiting Wolf 359 as a function of orbital period and planet mass. Red indicates a nearly perfect detection rate. Click on image to enlarge. (Davison et al.)

In brief, the analysis of these complimentary data sets by Davison et al. failed to find anything orbiting Wolf 359. By injecting artificial signals into their data representing planets with various masses and orbits, they were able to perform a statistical analysis to place lower limits on what should have been detected if it were present. For planets in orbits with a period of 3 days (corresponding to a distance of 0.018 AU), there was a 90% chance that any planet with a mass as small as 0.5 times that of Jupiter (or MJ) would have been detected. For planets with orbital periods of 10 to 30 days (i.e. 0.04 to 0.08 AU orbits), 1.0 MJ is the 90% detection limit of this study. For planets with periods of 100 days, planets larger than 2.0 MJ are excluded. Detection limits for more distant orbits runs from 7.0 MJ to 3.0 MJ for orbital periods from 3 to 8 years (i.e. 0.9 to 1.8 AU orbits), respectively.

While these results seem to eliminate the possibility that Wolf 359 has any Jupiter to super-Jupiter size planets orbiting within a couple of AU, chances are that still smaller planets may be absent as well. As part of their systematic survey of nearby M-dwarf stars conducted between 2003 and 2009, the European-based HARPS (High Accuracy Radial velocity Planet Search) team made a handful of precision radial velocity measurements of Wolf 359 looking for signs of variations. Any significant variations in the radial velocity of stars in their survey could indicate the presence of extrasolar planets that would then be followed up by a more thorough observation campaign to characterize the system. With the HARPS spectrograph attached to the European Southern Observatory’s 3.6-meter telescope in La Silla, Chile, three measurements found no variation in the radial velocity of Wolf 359 down to the ±5.7 meter per second level, according to results published in 2013. While it is impossible to set any meaningful detection limits for a range of orbital periods with only three data points, it does suggest that there are probably no planets with masses greater than Neptune (or about 0.05 MJ) in short-period orbits around Wolf 359. At this time it seems unlikely that the HARPS team will be making any follow up observations of Wolf 359 and instead will focus their limited resources on more promising targets.

The ESO 3.6m Telescope equipped with HARPS has made the most accurate published radial velocity measurements of Wolf 359. (ESO/H.H.Heyer)

While there may be some who are alarmed by the lack of any planet detections to date, it is not unexpected given what we have learned about the planetary systems of other M-dwarf stars. A recent statistical analysis of the Kepler database for M-dwarf stars performed by Courtney Dressing and David Charbonneau (Harvard-Smithsonian Center for Astrophysics) has shown that planets with radii greater than about 2.5 times that of the Earth (corresponding to a mass of only 0.014 MJ, assuming a probable Neptune-like density) and orbital periods less than 200 days are rare. Planets larger than Neptune are exceptionally rare in M-dwarf systems. And since the “typical” M-dwarf in the analysis by Dressing and Charbonneau is over five times more massive than the diminutive Wolf 359 (with the corresponding planets also tending to be larger), the lack of any planetary detections to date is even less surprising (see “Occurrence of Potentially Habitable Planets Around Red Dwarfs”). A compact system of Mars- to super-Earth sized planets would easily escape detection by the searches performed to date and will require a new generation of instruments to discover. In the mean time, visions of Wolf 359 and any worlds it may harbor will live on in fiction.

Related Reading

“Occurrence of Potentially Habitable Planets around Red Dwarfs”, Drew Ex Machina, January 12, 2015 [Post]

“The Search for Planets Around Proxima Centauri”, Drew Ex Machina, February 23, 2015 [Post]

“The Search for Planets Around Barnard’s Star”, Drew Ex Machina, April 23, 2015 [Post]

“The Hubble Space Telescope and the Search for Faint Extrasolar Companions”, SETIQuest, Volume 3, Number 2, pp. 1-9, Second Quarter 1997 [Article]

General References

X. Bonfils et al., “The HARPS search for southern extra-solar planets XXXI. The M-dwarf sample”, Astronomy & Astrophysics, Vol. 549, ID A8, January 2013

Cassy L. Davison et al., “A 3D Search for Companions to 12 Nearby M Dwarfs”, The Astronomical Journal, Vol. 149, No. 3, Article ID 106, March 2015

Sergio B. Dieterich et al., “The Solar Neighborhood. XXXII. The Hydrogen Burning Limit”, The Astronomical Journal, Vol. 147, No. 5, Article ID 94, May 2014

Courtney D. Dressing and David Charbonneau, “The Occurrence of Potentially Habitable Planets Orbiting M Dwarfs Estimated from the Full Kepler Dataset and an Empirical Measurement of the Detection Sensitivity”, The Astrophysical Journal, Vol. 807, No. 1, ID 45, July 2015

R. K. Kopparapu et al., “Habitable zones around main-sequence stars: new estimates”, The Astrophysical Journal, Vol. 765, No. 2, Article ID 131, March 10, 2013

Ya. V. Pavlenko et al., “Spectral energy distribution for GJ406”, Astronomy and Astrophysics, Vol. 447, No. 2, pp.709-717, February 2006

Daniel J. Schroeder et al., “A Search for Faint Companions to Nearby Stars Using the Wide Field Planetary Camera 2”, The Astronomical Journal, Vol. 119, No. 2, pp. 906-922, February 2000


Calendars exhibit

The length of the year has increased slightly over the millennia for a variety of reasons. These include: the gradual slowing of the Earth’s rotation, slow changes in the Earth’s orbit due to other planets and the moon, as well as regular effects due to precession of the Earth’s axis of rotation every 26,000 years.

Measures of the year

There is a subtle but important difference in two primary measures of the year, used by our calendar and by astronomers. The year mentioned above is the length of the tropical year defined as the mean interval between vernal equinoxes (1582-2000 C.E.) : 365 days, 5 hours, 49 minutes (365.2424 Universal days). Another measure of the year often used is the astronomer’s mean tropical year, defined as 365 days, 5 hours, 48 minutes, 45 seconds.

Atomic time

The measurement of time is currently determined by an international consortium based in France which averages the time from approximately 220 atomic clocks in over two dozen countries. The atomic clock is the only object that both tells time and generates a precise time scale.

Historically, the calculation of time has been based on the position of the earth relative to the sun using noon, when the sun is highest in the sky, as a marker. The length of the second, which corresponds to the length of time required for 9,192,631,770 cycles of the Cesium atom at zero magnetic field, was determined near the end of the 19th century this second is thus equivalent to the second defined by the fraction 1/31 556 925.97 47 of the year 1900. In 1967, the official second was set as equal to an average second of Earth’s rotation time the calculation of the average is necessary due to the fact that the earth rotates at a slightly irregular rate.

Today, time is determined by counting official seconds. This is subject to slight measurement inaccuracies thus, the international community calculates a stable time by averaging accumulated seconds from several clocks worldwide. Next, this figure is compared to a few highly accurate laboratory measurements of the second. Every month, the official world time is adjusted by a few nanoseconds. Politically, time is a cooperative venture and, by making time an international endeavor, the international community benefits from the combined resources of many laboratories.

Leap seconds in universal time coordinated (UTC)

World time is typically adjusted every year by adding what is called a "leap second." Because the time calculated by the position of the sun differs from the time calculated by the atomic standard, it is occasionally necessary to adjust international time standards to match the position of the Earth.

The rotational speed of the Earth changes slightly for several reasons, some of which are not fully understood. Large scale movements of water and changes in the atmosphere affect the Earth’s angular momentum. Tidal friction from the moon, which results in the rise of tides in the ocean, diminishes the speed of rotation. Physical processes occurring on or within the Earth also affect the earth’s rotation.


The Sale of Manhattan

Created by Geographer-at-Large Eames Demetrios , Kcymaerxthaere is a “parallel universe that intersects with much of our linear Earth, but with different stories, creatures, peoples, even laws of physics and qualities of existence.”

The project has been likened to a novel with every page in a different place. What makes the Kcymaerxthaere project particularly interesting is that Demetrios installs informative markers and historical sites at the locations in our world that connect to his world, creating real world intersections with his imagined universe. For the months of August and September, 2014, Demetrios acted as our first ever Geographer - in - Residence and his Kcymaerxthaere locations continue to be featured all over the Atlas.

These images represent the Sale of Manhattan Marker when it was installed. Sadly, visitors to the location report it is gone, though it was respected by graffiti artists for the longest time (see one of the gallery images). This is, of course, very distressing, but we are working hard to make the information remains accessible on site. We look forward to replacing it in a more secure manner. Why is it still on this list? Because it was installed here for many years, and we don’t let vandals determine where the events of Kcymaerxthaere happened.

The story concerns the Sale of Manhattan to the Future Gwome Manhattaan to settle the equivalent of a 24 dollar gambling debt. There was much work that had been done to the land here, indeed, it was one of the most famous of the Monastery Districts, but slowly a more beautiful one arose, hovering above the waters offshore, and myriad creatures made this district their home.


January 13, 2013 Day 359 of the Fifth Year - History

An Online Encyclopedia of Roman Emperors

Marcus Aurelius Commodus Antoninus, the son of the Emperor Marcus Aurelius and his wife-cousin Faustina, was born in Lanuvium in 161 AD. Commodus was named Caesar at the age of 5, and co-Augustus at the age of 17, spending most of his early life accompanying his father on his campaigns against the Quadi and the Marcomanni along the Danubian frontier. His father died, possibly of the plague, at a military encampment at Bononia on the Danube on 17 March 180, leaving the Roman Empire to his nineteen-year-old son.[[1]] Upon hearing of his father's death, Commodus made preparations for Marcus' funeral, made concessions to the northern tribes, and made haste to return back to Rome in order to enjoy peace after nearly two decades of war. Commodus, and much of the Roman army behind him, entered the capital on 22 October, 180 in a triumphal procession, receiving a hero's welcome. Indeed, the youthful Commodus must have appeared in the parade as an icon of new, happier days to come his arrival sparked the highest hopes in the Roman people, who believed he would rule as his father had ruled.[[2]]

The coins issued in his first year all display the triumphant general, a warrior in action who brought the spoils of victory to the citizens of Rome.[[3]] There is a great deal of evidence to support the fact that Commodus was popular among many of the people, at least for a majority of his reign. He seems to have been quite generous.[[4]] . Coin types from around 183 onward often contain the legend, Munificentia Augusta [[5]] , indicating that generosity was indeed a part of his imperial program. Coins show nine occasions on which Commodus gave largesses, seven when he was sole emperor.[[6]] According to Dio, the emperor obtained some of this funding by taxing members of the senatorial class.[[7]] This policy of munificence certainly caused tensions between Commodus and the Senate. In 191 it was noted in the official Actus Urbis that the gods had given Commodus to Populus Senatusque Romanus . Normally the phrase Senatus Populusque Romanus was used. [[8]] While the Senate hated Commodus, the army and the lower classes loved him.[[9]] Because of the bad relationship between the Senate and Commodus as well as a senatorial conspiracy,[[10]] Rome ". was virtually governed by the praetorian prefects Perennis (182-185) and Cleander (186-9)."[[11]]

Commodus began to dress like the god Hercules, wearing lion skins and carrying a club.[[12]] Thus he appropriated the Antonines' traditional identification with Hercules, but even more aggressively. Commodus' complete identification with Hercules can be seen as an attempt to solidify his claim as new founder of Rome, which he now called the Colonia Lucia Annia Commodiana . This was legitimized by his direct link to Hercules, son of Father Jupiter.[[13]] He probably took the title of Hercules officially some time before mid-September 192.[[14]]

While the literary sources, especially Dio, Herodian, and the Historia Augusta , all ridicule the antics of his later career, they also give important insight into Commodus' relationship to the people.[[15]] His most important maneuver to solidify his claims as Hercules Romanus was to show himself as the god to the Roman people by taking part in spectacles in the amphitheater. Not only would Commodus fight and defeat the most skilled gladiators, he would also test his talents by encountering the most ferocious of the beasts.[[16]] Commodus won all of his bouts against the gladiators.[[17]] The slayer of wild beasts, Hercules, was the mythical symbol of Commodus' rule, as protector of the Empire.[[18]]

During his final years he declared that his age should be called the "Golden Age."[[19]] He wanted all to revel in peace and happiness in his age of glory, praise the felicitas Commodi, the glorious libertas , his pietas, providentia , his victoria and virtus aeterna .[[20]] Commodus wanted there to be no doubt that this "Golden Age" had been achieved through his munificence as Nobilissimus Princeps . He had declared a brand new day in Rome, founding it anew in 190, declaring himself the new Romulus.[[21]] Rome was now to be called Colonia Lucia Annia Commodiana , as noted above, and deemed "the Immortal," "the Fortunate," "the Universal Colony of the Earth."[[22]] Coins represent the archaic rituals of city-[re]foundation, identifying Commodus as a new founder and his age as new days.[[23]]

Also in 190 he renamed all the months to correspond exactly with his titles. From January, they run as follows: Lucius, Aelius, Aurelius, Commodus, Augustus, Herculeus, Romanus, Exsuperatorius, Amazonius, Invictus, Felix, Pius.[[24]] According to Dio Cassius, the changing of the names of the months was all part of Commodus' megalomania.[[25]] Commodus was the first and last in the Antonine dynasty to change the names of the months.

The legions were renamed Commodianae, the fleet which imported grain from Africa was called Alexandria Commodiana Togata , the Senate was deemed the Commodian Fortunate Senate, his palace and the Roman people were all given the name Commodianus. [[26]] The day that these new names were announced was also given a new title: Dies Commodianus. [[27]] Indeed, the emperor presented himself with growing vigor as the center of Roman life and the fountainhead of religion. New expressions of old religious thought and new cults previously restricted to private worship invade the highest level of imperial power.[[28]]

If Eusebius of Caesarea [[29]] is to be believed, the reign of Commodus inaugurated a period of numerous conversions to Christianity. Commodus did not pursue his father's prohibitions against the Christians, although he did not actually change their legal position. Rather, he relaxed persecutions, after minor efforts early in his reign.[[30]] Tradition credits Commodus's policy to the influence of his concubine Marcia she was probably his favorite,[[31]] but it is not clear that she was a Christian.[[32]] More likely, Commodus preferred to neglect the sect, so that persecutions would not detract from his claims to be leading the Empire through a "Golden Age."[[33]]

During his reign several attempts were made on Commodus' life.[[34]] After a few botched efforts, an orchestrated plot was carried out early in December 192, apparently including his mistress Marcia. On 31 December an athlete named Narcissus strangled him in his bath,[[35]] and the emperor's memory was cursed. This brought an end to the Antonine Dynasty.

SELECT BIBLIOGRAPHY

Alföldy, G. "Der Friedesschluss des Kaisers Commodus mit den Germanen," Historia 20 (1971): 84-109.

Aymard, J. "Commode-Hercule foundateur de Rome," Revue des études latines 14 (1936): 340-64.

Birley, A. R. The African Emperor: Septimius Severus. -- rev. ed.-- London, 1988.

________. Marcus Aurelius: A Biography . London, 1987.

Breckenridge, J. D. "Roman Imperial Portraiture from Augustus to Gallienus," ANRW 2.17. 1 (1981): 477-512.

Chantraine, H. "Zur Religionspolitik des Commodus im Spiegel seiner Münzen," Römische Quartalschrift für christliche Altertumskunde und für Kirchengeschichte 70 (1975): 1-31.

Ferguson, J. The Religions of the Roman Empire. Ithaca, 1970.

Fishwick, D. The Imperial Cult in the Latin West. Leiden, 1987.

Gagé, J. "La mystique imperiale et l'épreuve des jeux. Commode-Hercule et l'anthropologie hercaléenne," ANRW 2.17.2 (1981), 663-83.

Garzetti, A. From Tiberius to the Antonines. A History of the Roman Empire A. D. 14-192 . London, 1974.

Grosso F. La lotta politica al tempo di Commodo. Turin, 1964.

Hammond, M. The Antonine Monarchy . Rome, 1956.

Helgeland, J. "Roman Army Religion," ANRW II.16.2 (1978): 1470-1505.

Howe, L. L. The Praetorian Prefect from Commodus to Diocletian (A. D. 180-305) . Chicago, 1942.

Keresztes, P. "A Favorable Aspect of Commodus' Rule," in Hommages à Marcel Renard 2. Bruxelles, 1969.

Mattingly, R. The Roman Imperial Coinage. Volume III: Antoninus Pius to Commodus . London, 1930.

Nock, A. D. "The Emperor's Divine Comes," Journal of Roman Studies 37 (1947): 102-116.

Parker, H. M. D. A History of the Roman World from A. D. 138 to 337. London, 1935.

________. and B.H. Warmington. "Commodus." OCD 2 , col. 276.

Raubitschek, A. E. "Commodus and Athens." Studies in Honor of Theodore Leslie Shear . Hesperia, Supp. 8, 1948.

Rostovtzeff, M. I. "Commodus-Hercules in Britain," Journal of Roman Studies 13 (1923): 91-105.

Sordi, M. "Un senatore cristano dell'éta di Commodo." Epigraphica 17 (1959): 104-112.

Speidel, M. P. "Commodus the God-Emperor and the Army," Journal of Roman Studies 83 (1993): 109-114.

Stanton, G. R. "Marcus Aurelius, Lucius Verus, and Commodus: 1962-1972." ANRW II.2 (1975): 478-549.

Notes

[[1]] For a discussion of the circumstances surrounding the death of Marcus Aurelius, see A. R. Birley, Marcus Aurelius: A Biography -- rev. ed. -- (London, 1987), 210.

Aurelius Victor, De Caes. 16.4, writing around the year 360, claimed Aurelius died at Vindobona, modern Vienna. However, Tertullian, Apol. 25, who wrote some seventeen years after Marcus' death, fixed his place of death at Sirmium, twenty miles south of Bononia. A. R. Birley ( Marcus Aurelius, 209-10) cogently argues Tertullian is much more accurate in his general description of where Marcus was campaigning during his last days.

For the dating of Marcus Aurelius' death and the accession of Commodus, see M. Hammond, The Antonine Monarchy (Rome, 1956), 179-80.

[[2]] For the army's attitude toward peace, the attitude of the city toward the peace, and the reception of the emperor and his forces into Rome, see Herodian, 1.7.1-4 for Commodus' subsequent political policies concerning the northern tribes, see G. Alföldy, "Der Friedesschluss des Kaisers Commodus mit den Germanen," Historia 20 (1971): 84-109.

For a commentary on the early years of Commodus in the public perception as days of optimism, see A. Garzetti, From Tiberius to the Antonines. A History of the Roman Empire A. D. 14-192 (London, 1974), 530. For a more critical, and much more negative portrayal, see the first chapter of F. Grosso, La lotta politica al tempo di Commodo (Turin, 1964).

[[3]]The gods Minerva and Jupiter Victor are invoked on the currency as harbingers of victory Jupiter Conservator on his coins watches over Commodus and his Empire, and thanks is given to divine Providence (H. Mattingly, The Roman Imperial Coinage. Volume III: Antoninus Pius to Commodus , [London, 1930] 356-7, 366-7). In 181, new coin types appear defining the new reign of Commodus. Victory and peace are stressed. Coins extol Securitas Publica, Felicitas, Libertas, Annona, and Aequitas ( ibid. , 357).

By 186 Commodus is depicted as the victorious princeps , the most noble of all born to the purple. Herodian (1.5.5) describes how Commodus boasted to his soldiers that he was born to be emperor. See also H. Chantraine, "Zur Religionspolitik des Commodus im Spiegel seiner Münzen," Römische Quatralschrift für christliche Altertumskunde und für Kirchengeschichte 70 (1975), 26. He is called Triumphator and Rector Orbis, and associated with the Nobilitas of Trojan descent (Mattingly, RIC III.359 idem, Coins of the Roman Empire in the British Museum. Volume IV: Antoninus Pius to Commodus , [Oxford, 1940], clxii).

[[4]] Dio tells us that Commodus liked giving gifts and often gave members of the populace 140 denarii apiece (Cass. Dio, 73.16), whereas the Historia Augusta reports that he gave each man 725 denarii (SHA, Comm ., 16.3).

[[8]]M. P. Speidel, "Commodus the God-Emperor and the Army," Journal of Roman Studies 83 (1993), 113.

[[9]]Mattingly, CBM , IV.xii. Commodus was also popular amongst the northern divisions of the army because he allowed them to wield axes in battle, a practice banned by all preceding emperors. See, Speidel, JRS 83 (1993), 114.

[[11]] H. Parker and B.H. Warmington, OCD 2 , s.v. "Commodus," col. 276 after 189, he was influenced by his mistress Marcia, Eclectus his chamberlain, and Laetus (who became praetorian prefect in 191 ( Idem. ).

[[12]]Herodian, 1.14.8. Hadrian appears on medallions in lion skins but as far as the sources tell us, he never appeared in public in them. See J. Toynbee, Roman Medallions ,(New York, 1986), 208.

He would often appear at public festivals and shows dressed in purple robes embroidered with gold. He would wear a crown made of gold, inlaid with the finest gems of India. He often carried a herald's staff as if imitating the god Mercury. According to Dio Cassius, Commodus' lion's skin and club were carried before him in the procession, and at the theaters these vestiges of Hercules were placed on a gilded chair for all to see (Cass. Dio, 73.17). For the implications of the golden chair carried in procession in relation to the imperial cult, see D. Fishwick, The Imperial Cult in the Latin West, (Leiden, 1987-91 ), 555.

[[13]] H. M. D. Parker, A History of the Roman World from A. D. 138 to 337, (London, 1935), 34 For medallions that express the relationship between Antoninus Pius, Marcus Aurelius, and Lucius Verus extolling Hercules as a symbol of civic virtue, see Toynbee, Roman Medallions , 208. For a general statement on the symbolism of Hercules in the Antonine age, see M. Hammond, The Antonine Monarchy, 238.

For a discussion of Commodus' association with Hercules, see

Rostovtzeff, "Commodus-Hercules," 104-6.

Herodian spells out the emperor's metamorphosis in detail (1.14.8).

[[14]]See Speidel, "Commodus the God-Emperor," 114. He argues this general date because a papyrus from Egypt's Fayum records Hercules in Commodus' title on 11 October 192.

[[15]]For a preliminary example, Herodian writes (1.13.8), "people in general responded well to him."

[[16]]As Dio reports, Commodus, with his own hands, gave the finishing stroke to five hippopotami at one time. Commodus also killed two elephants, several rhinoceroses, and a giraffe with the greatest of ease. (Cass. Dio, 73.10), and with his left hand ( ibid. , 73.19). Herodian maintains that from his specially constructed terrace which encircled the arena (enabling Commodus to avoid risking his life by fighting these animals at close quarters), the emperor also killed deer, roebuck, various horned animals, lions, and leopards, always killing them painlessly with a single blow. He purportedly killed one hundred leopards with one hundred javelins, and he cleanly shot the heads off countless ostriches with crescent-headed arrows. The crowd cheered as these headless birds continued to run around the amphitheater (1.15-4-6 for Commodus' popularity at these brutal spectacles, see Birley, The African Emperor , 86) (and Dio tells his readers that in public Commodus was less brutal than he was in private [73.17ff]).

[[17]] According to Herodian (1.15-17), "In his gladiatorial combats, he defeated his opponents with ease, and he did no more than wound them, since they all submitted to him, but only because they knew he was the emperor, not because he was truly a gladiator."

[[18]]Webber, "The Antonines," CAH, XI.360.

[[20]] Mattingly, RIC, III.361. For Commodus' propaganda of peace, see W. Webber, "The Antonines," CAH, XI.392.

[[21]] W. Webber, "The Antonines," CAH , XI.392-3. In 189 a coin type was issued with the legend Romulus Conditor , perhaps indicating he began the official renaming process during that year. For a discussion on Commodus as Romulus, see A. D. Nock, "The Emperor's Divine Comes ," Journal of Roman Studies 37 (1947), 103.

[[23]]Mattingly, RIC, III.361. See also, Webber, "The Antonines," CAH , XI.386.

[[24]]The title Felix is first used by the emperor Commodus, and is used in the titles of almost all successive emperors to the fifth century. See, D. Fishwick, The Imperial Cult in the Latin West (Leiden, 1987-91), 473.

HA, Comm. , 12.315 Cass. Dio, 73.15 Herodian, I.14.9. These new names for the months seem to have actually been used, at least by the army, as confirmed by Tittianus' Altar. See M. P. Speidel, "Commodus the God-Emperor and the Army," Journal of Roman Studies 83 (1993), 112.

[[26]]Legions:Idem. the Grain fleet: SHA, Comm ., 12.7. For a further discussion of Commodus' newly named fleet, see, A. Garzetti, From Tiberius to the Antonines , 547. For coins issued extolling the fleet, see Mattingly, CBM , IV.clxix RIC , III.359 the Senate: Cass. Dio, 73.15 the Imperial Palace: SHA, Comm. , 12.7 the Roman People: Ibid., 15.5.

[[30]]For a discussion of the treatment of Christianity during the reigns of Marcus Aurelius and Commodus as well as persecutions during the reign of Commodus, see Keresztes, "A Favorable Aspect," 374, 376-377.

[[31]]Herodian, 1.16.4 Dio, 73.4. A Medallion from early 192 shows Commodus juxtaposed with the goddess Roma, which some scholars have argued incorporates the features of Marcia. See, Roman Medallions , "Introduction." Commodus was married, however, to a woman named Crispina. He commissioned several coins early in his rule to honor her.

[[32]]The Christian apologist Hippolytus tells that she was a Christian (Philos. 9.2.12), Dio tells that she simply favored the Christians (73.4). Herodian does not take a stand on the matter either way (1.16.4).

[[33]]Cass. Dio, 73.15. He pronounces Commodus' edict that his rule should be henceforth called the "Golden Age."

[[34]]H. Parker and B.H. Warmington note that Commodus. "resorted to government by means of favorites. which was exacerbated by an abortive conspiracy promoted by Lucilla and Ummidius Quadratus (182)." ( OCD 2 , col. 276).

[[35]]Herodian, 1.17.2-11 Dio Cass., 73.22 SHA, Comm .,17.1-2.

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IN RE: THOMAS F. HOFFNER

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. An identical residual clause existed until recently in the Federal Sentencing Guidelines' career offender guideline, U.S.S.G. § 4B1.2(a)(2). Petitioner Thomas Hoffner was sentenced as a career offender based on this residual clause in 2002. He seeks our authorization to challenge his sentence via a successive habeas corpus petition, 28 U.S.C. § 2255(h)(2).

The ultimate question is whether Hoffner has a meritorious vagueness claim under Johnson. But that is not the question before us now. The only issue we must decide is whether Hoffner has made a “prima facie showing,” 28 U.S.C. § 2244(b)(3)(C), of the pre-filing requirements for a successive habeas corpus petition. To answer this seemingly simple question, we must cover some rocky terrain. We consider Johnson and its progeny, as well as the pre-filing requirements for a second or successive habeas petition. We conclude that Hoffner has made a prima facie showing, and so we will authorize his successive habeas petition. 1

I. Factual and Procedural Background

In 2002, Hoffner was convicted of conspiracy to distribute methamphetamine, 21 U.S.C. § 846, distribution of methamphetamine, 21 U.S.C. § 841(a)(1), and unlawful use of a communication facility, 21 U.S.C. § 843(b). At sentencing, the District Court applied the career offender guideline, U.S.S.G. § 4B1.1, based upon two prior convictions Hoffner incurred in Pennsylvania state court in the 1980s. The first was for simple assault and the second was for burglary, robbery and conspiracy. He was sentenced to twenty years' imprisonment and five years' supervised release. 2

Hoffner filed a direct appeal and a habeas corpus petition, which we rejected. United States v. Hoffner, 96 F. App'x 85 (3d Cir. 2004) United States v. Hoffner, No. 00-cr-00456, 2005 WL 3120269 (E.D. Pa. Nov. 21, 2005), appeal denied No. 05-5478 (3d Cir. July 18, 2006). In 2012, he filed an unauthorized second habeas corpus petition. In 2015, he filed the pro se motion before us seeking to file a successive habeas corpus petition under Johnson. We appointed counsel, requested briefing, and held oral argument.

II. Johnson and Its Progeny

In Johnson, the Supreme Court considered a due process challenge to the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The ACCA applies to a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g). Ordinarily, “the law punishes violation of this ban by up to 10 years' imprisonment.” Johnson, 135 S. Ct. at 2555 (citing 18 U.S.C. § 924(a)(2)). However, if a defendant is an “armed career criminal,” the ACCA imposes a mandatory minimum sentence of fifteen years and a statutory maximum sentence of life. Id. (citing 18 U.S.C. § 924(e)(1)). 3

A defendant is an “armed career criminal” if, in relevant part, he “has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony.’ ” Id. (citing 18 U.S.C. § 924(e)(1)). Pre-Johnson, the definition of “violent felony” had three clauses—one enumerating offenses, one enumerating elements, and the residual clause. 18 U.S.C. § 924(e)(2)(B). The residual clause defined a crime as a “violent felony” if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) see also Johnson, 135 S. Ct. at 2557.

In Johnson, the Supreme Court struck the ACCA residual clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The Court explained that the Fifth Amendment's vagueness doctrine bars the Government from “taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. at 2556. These principles apply to laws “defining elements of crimes” or “fixing sentences.” Id. at 2557. The ACCA was a law “fixing sentences.” Beckles, 137 S. Ct. at 892. Its residual clause denied defendants “fair notice” and “invite[d] arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557. Thus, Johnson held that “[i]ncreasing a defendant's sentence under the clause denies due process of law.” Id.

The Supreme Court quickly resolved the issue of Johnson's retroactivity in Welch v. United States, 136 S. Ct. 1257 (2016). Welch held that Johnson is retroactive to cases on collateral review. Id. at 1264.

In Welch, the Supreme Court applied the retroactivity test set forth in Teague v. Lane, 489 U.S. 288 (1989). Teague provides that “new constitutional rules of criminal procedure” are generally not retroactive to cases on collateral review. Welch, 136 S. Ct. at 1264 (quoting Teague, 489 U.S. at 310). However, “two categories of decisions ․ fall outside this general” retroactivity bar: “new substantive rules” and “watershed rules of criminal procedure.” Id. (emphasis and citations omitted). A procedural rule “regulate[s] only the manner of determining the defendant's culpability.” Id. at 1265 (emphasis and citation omitted). A substantive rule “alters the range of conduct or the class of persons that the law punishes.” Id. at 1264-65 (citation omitted). 4

Welch held that Johnson is a new “substantive” rule because it alters “the substantive reach of the [ACCA]” such that a defendant can no longer be sentenced as an armed career criminal “based on” the residual clause. Id. at 1265 see also Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Conversely, Johnson is not “procedural” because it “had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCA].” Welch, 136 S. Ct. at 1265.

C. Johnson Challenges to the Career Offender Guideline

From Johnson grew challenges to another residual clause, the one contained in the career offender guideline. The career offender guideline is a severe sentencing enhancement for certain recidivist offenders. It “specif[ies] a sentence to a term of imprisonment at or near the maximum term.” 28 U.S.C. § 994(h).

The career offender guideline applies to a defendant where, inter alia, “the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense” and “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Until recently, the career offender guideline defined a “crime of violence” as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Beckles v. United States, 137 S. Ct. 886, 890-91 (2017) (emphasis in original) (quoting U.S.S.G. § 4B1.2(a)). 5

In this definition, the final clause is the residual clause. It is identical to the ACCA residual clause struck in Johnson. Compare 18 U.S.C. § 924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”), with U.S.S.G. § 4B1.2(a)(2) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”). For this reason, the residual clause was struck from the career offender guideline prospectively, effective August 1, 2016. U.S.S.G. Supp. App. C, Amend. 798.

Before its elimination, the residual clause of the career offender guideline had been effective since November 1, 1989. U.S.S.G. Supp. App. C, Amend. 268. 6 Significantly, its use spanned two eras in sentencing under the Federal Sentencing Guidelines—the pre- and post-United States v. Booker, 543 U.S. 220 (2005), eras. We pause briefly to review this distinction, as it is necessary to our analysis.

In the earlier, pre-Booker era, the Sentencing Guidelines had “the force and effect of laws” and were “mandatory and binding on all judges.” Id. at 233-34. A sentencing court was required to “impose a sentence of the kind, and within the range,” set by the Guidelines. Id. at 234 (quoting 18 U.S.C. § 3553(b)). Although the sentencing court could depart from the range, departures were based on “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). “In most cases, as a matter of law, the Commission ․ adequately t[ook] all relevant factors into account, and no departure [was] legally permissible.” Booker, 543 U.S. at 234.

In Booker, the Supreme Court held that the Sentencing Guidelines violated the Sixth Amendment. Id. at 226-27. In a separate, remedial opinion, the Court rendered the Guidelines “advisory.” Id. at 245. In the current, post-Booker era, a sentencing court must “consider Guidelines ranges” but may “tailor the sentence in light of other statutory concerns as well.” Id. at 245 (citing 18 U.S.C. § 3553(a)). In addition to the Guidelines, a sentencing court considers the parties' arguments and the Section 3553(a) factors the appropriate sentence may vary from the range. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

In Beckles, the Supreme Court rejected a Johnson challenge to the career offender guideline's residual clause, as applied under the advisory, post-Booker Guidelines. Beckles, 137 S. Ct. at 890. Beckles held that that “the advisory Guidelines are not subject to vagueness challenges.” Id.

The issue in Beckles was whether the advisory Guidelines “fix the permissible sentences for criminal offenses” such that they can be challenged as vague. Id. at 892 (emphasis in original). Beckles held that they do not. Rather, the advisory Guidelines “merely guide the exercise of a court's discretion.” Id. The Court further explained that the two principles governing the vagueness doctrine—notice and arbitrary enforcement—do not apply to the advisory Guidelines. Id. at 894. As to notice, the “ ‘due process concerns that ․ require notice in a world of mandatory Guidelines no longer’ apply” when the Guidelines are advisory. Id. (ellipses in original) (quoting Irizarry v. United States, 553 U.S. 708, 714 (2008)). As to arbitrary enforcement, the advisory Guidelines are not “enforced” at all, and so cannot be enforced arbitrarily. Id. at 895.

Beckles limited its holding to the advisory Guidelines. Id. at 890. It did not address the pre-Booker era, when the Sentencing Guidelines were “mandatory and binding on all judges,” who were required to sentence within the range. Booker, 543 U.S. at 233. In a concurring opinion in Beckles, Justice Sotomayor noted that the majority left “open the question whether defendants sentenced to terms of imprisonment before [the Supreme Court's] decision in United States v. Booker—that is, during the period in which the Guidelines did ‘fix the permissible range of sentences,’—may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring) (citations omitted). 7

III. Second or Successive Habeas Corpus Petitions

Hoffner was sentenced based upon the career offender guideline's residual clause during the pre-Booker, mandatory Guidelines era. He seeks our authorization to file a successive habeas corpus petition challenging his sentence in light of Johnson. We turn then to the requirements for a second or successive habeas petition, set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

AEDPA created a statutory “gatekeeping mechanism” for second or successive habeas petitions. Felker v. Turpin, 518 U.S. 651, 657 (1996) (quotation marks omitted). For a federal prisoner, like Hoffner, a “second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h) see also In re Turner, 267 F.3d 225, 227 (3d Cir. 2001). Section 2244(b)(3) is the gatekeeping provision. Felker, 518 U.S. at 657. 8 It requires a petitioner to “move in the appropriate court of appeals for an order authorizing the district court to consider” a second or successive habeas petition. 28 U.S.C. § 2244(b)(3)(A). The appellate court “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing” of the pre-filing requirements. 28 U.S.C. § 2244(b)(3)(C).

The pre-filing requirements for a second or successive habeas petition for a federal prisoner are set forth at 28 U.S.C. § 2255(h). A Section 2255(h) motion may be based upon “newly discovered evidence” or a qualifying “new rule of constitutional law.” 28 U.S.C. § 2255(h). For the latter, the pre-filing requirements consist of “three prerequisites.” Tyler v. Cain, 533 U.S. 656, 662 (2001). “First, the rule on which the claim relies must be a ‘new rule’ of constitutional law second, the rule must have been ‘made retroactive to cases on collateral review by the Supreme Court’ and third, the claim must have been ‘previously unavailable.’ ” Id. 9

Although few in number, the pre-filing requirements of Section 2255(h)(2) are difficult to satisfy. The Supreme Court itself must issue the retroactivity decision, either expressly or through a series of decisions. Tyler, 533 U.S. at 663 see also In re Olopade, 403 F.3d at 162 In re Turner, 267 F.3d at 229. Moreover, “because of the interplay between” the pre-filing requirements and the statute of limitations, 28 U.S.C. § 2255(f)(3), “an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year.” Dodd v. United States, 545 U.S. 353, 359 (2005). 10

In our gatekeeping role, we assess whether the petitioner has satisfied the pre-filing requirements of Section 2255(h) at only a “prima facie” level. 28 U.S.C. § 2244(b)(3)(C). Although AEDPA does not define “prima facie,” the context of Section 2244(b) confirms that we hold the petitioner to a light burden. The same subsection directs us to make our prima facie determination “not later than 30 days after the filing of the motion.” 28 U.S.C. § 2244(b)(3)(D). 11 It provides that the “grant or denial of an authorization ․ to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). It also provides that after our authorization, a district court shall consider anew whether the petitioner has “show[n] that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4). This context demonstrates that we “do not have to engage in ․ difficult legal analysis” in our gatekeeping role. Tyler, 533 U.S. at 664.

Consistent with the text and context, we have defined a “prima facie showing” as a “sufficient showing” that the petitioner has satisfied the pre-filing requirements “to warrant a fuller exploration by the district court.” Goldblum v. Klem, 510 F.3d 204, 219 & n.9 (3d Cir. 2007) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). Put differently, we authorize a second or successive habeas petition where there is some “reasonabl [e] likel[ihood]” that the motion satisfies the pre-filing requirements of Section 2255(h)(2). Id. at 219 (quoting Bennett, 119 F.3d at 469) see also 2-28 Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 28.3(d) & n.122 (2015). We do not consider the merits of the claim. In re Pendleton, 732 F.3d 280, 282 n.1 (3d Cir. 2013) (per curiam) Goldblum, 510 F.3d at 219 n.9.

The parties agree, as they must under Welch, that Johnson is “[1] a new rule of constitutional law, [2] made retroactive to cases on collateral review by the Supreme Court, [3] that was previously unavailable.” 28 U.S.C. § 2255(h)(2). These are generally the “three prerequisites” for a motion under Section 2255(h). Tyler, 533 U.S. at 662. The Government nevertheless opposes Hoffner's motion for authorization to file a successive habeas petition. It argues that Hoffner has not made a prima facie showing of one portion of the first prerequisite, that Johnson is “the rule on which the claim relies.” Id. (emphasis added).

This Court has not previously focused on what is required for a claim to “rel [y]” on a qualifying new rule for the purposes of Section 2255(h)(2). Id. Our precedent dictates that the answer cannot be whether the claim has merit, because we do not address the merits at all in our gatekeeping function. In re Pendleton, 732 F.3d at 282 n.1 Goldblum, 510 F.3d at 219 n.9. We now hold that whether a claim “relies” on a qualifying new rule must be construed permissively and flexibly on a case-by-case basis.

Our interpretation is based first on the text of Section 2255(h)(2), which supports a permissive and flexible approach to whether a petitioner “relies” on a qualifying new rule. See Maslenjak v. United States, 137 S. Ct. 1918, 1924 (2017) (“We begin, as usual, with the statutory text.”). The Supreme Court has enumerated the pre-filing requirements as “three prerequisites.” Tyler, 533 U.S. at 662. Of these, the first is that “the rule on which the claim relies must be a ‘new rule’ of constitutional law.” Id. While this prerequisite does refer to a rule on which the claim “relies,” Tyler does not give any freestanding weight to this term. Id. Similarly, when we described the “relevant portion” of the text, we did not include reliance. Olopade, 403 F.3d at 162 n.3. Even the Government concedes that Section 2255(h)(2) has “no express requirement that the ‘new rule’ must actually pertain to the petitioner's claim.” Br. for Respondent 22 n.6.

The context of Section 2244(b) also supports interpreting “relies” permissibly and flexibly. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (emphasizing that we read statutory text in context). As explained above, Congress has mandated that the “grant or denial of an authorization ․ shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E) see also Felker, 518 U.S. at 654 (upholding this subsection). This creates an asymmetry in the impact of our gatekeeping decision on a particular case. See Evans-Garcia v. United States, 744 F.3d 235, 239 (1st Cir. 2014) Ochoa v. Sirmons, 485 F.3d 538, 542 n.5 (10th Cir. 2007) (per curiam). On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” Evans-Garcia, 744 F.3d at 239. On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” Id. The district court will have the opportunity to determine anew whether the petitioner has “show[n] that the claim satisfies the requirements of this section,” 28 U.S.C. § 2244(b)(4), and whether the habeas petition has merit, In re Pendleton, 732 F.3d at 282 n.1 Goldblum, 510 F.3d at 219 n.9. In turn, we may review the district court's decision. See 28 U.S.C. § 2253.

At a policy level, a flexible, case-by-case approach advances two ends—the need to meet new circumstances as they arise, and the need to prevent injustice. Cf. Holland v. Florida, 560 U.S. 631, 650 (2010) (describing these ends in a different context). Both concerns are at the fore in Section 2255(h)(2) motions. Such motions may involve rules that are “new” (therefore difficult to foresee) and “substantive,” thereby involving a particular type of injustice—a “conviction or sentence that the Constitution deprives the [Government] of power to impose,” Montgomery, 136 S. Ct. at 732 cf. id. (noting that “the retroactive application of substantive rules does not implicate a State's weighty interests in ․ finality”).

The above considerations of text, context and equity are encapsulated by the scholarly dissenting opinion of Judge Elrod in In re Arnick, 826 F.3d 787, 789 (5th Cir. 2016) (Elrod, J., dissenting). As Judge Elrod observes, a motion “relies” on a qualifying new rule where the rule “substantiates the movant's claim.” Id. This is so even if the rule does not “conclusively decide [ ]” the claim or if the petitioner needs a “non-frivolous extension of a qualifying rule.” Id. at 789-90. Section 2255(h)(2) does not require that qualifying new rule be “the movant's winning rule,” but “only that the movant rely on such a rule.” Id. at 790 (emphasis in original).

It is for the district court to evaluate the merits of the second or successive habeas petition in the first instance. This includes “whether the invoked new rule should ultimately be extended in the way that the movant proposes” or whether his “reliance is misplaced.” Id. at 791. Other Circuits agree. See, e.g., In re Hubbard, 825 F.3d 225, 231 (4th Cir. 2016) (holding that “it is for the district court to determine whether the new rule extends to the movant's case, not for this court in this proceeding”) In re Williams, 759 F.3d 66, 72 (D.C. Cir. 2014) (holding that whether the qualifying new rule “extends” to the petitioner “goes to the merits of the motion and is for the district court, not the court of appeals”).

The above considerations dictate that we should apply a permissive and flexible, case-by-case approach to deciding whether a petitioner “relies” on a qualifying new rule (again, at a prima facie level). Implementing such an approach, we look to precedent as a guide while recognizing that future “new” rules may be difficult to foresee.

First, we turn to identical Johnson challenges to the career offender guideline's residual clause in pre-Booker, mandatory Guideline cases. The Second, Sixth, Fourth and Tenth Circuits have all authorized second or successive habeas petitions challenging this residual clause in light of Johnson. See Vargas, No. 16-2112 (2d Cir. May 8, 2017) (authorizing successive habeas petition, as “Beckles did not clearly foreclose” petitioner's Johnson claim under the mandatory Guidelines) In re Patrick, 833 F.3d 584, 589 (6th Cir. 2016) (holding that petitioner “easily satisf[ied]” the prima facie standard) In re Hubbard, 825 F.3d at 231 (holding that petitioner made a prima facie showing based upon Johnson) In re Encinias, 821 F.3d at 1226 (holding that petitioner sufficiently “rel [ied] on” Johnson to permit authorization). 12 We find these decisions persuasive. 13

We also draw upon decisions authorizing second or successive habeas petitions for juveniles sentenced to mandatory life without parole under Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012). 14 Most important of these is our own decision authorizing second or successive habeas petitions for three juvenile offenders in In re Pendelton, 732 F.3d at 283.

In Pendleton, our Court authorized a successive habeas petition for petitioner Corey Grant, who was sentenced to life imprisonment under the mandatory Guidelines after his downward departure request was denied. See Br. for Respondent, In re Grant, 732 F.3d 280 (3d Cir. 2013) (No. 13-1455), 2013 WL 4505735, *29-31. The Government agreed that Miller was a qualifying new rule. However, it opposed Grant's motion because his life sentence was arguably discretionary, and Miller did not invalidate “a discretionary life-without-parole sentence.” Id. at *36. The Government asserted that Grant could refile “[s]hould the Supreme Court someday foreclose such sentences.” Id. We rejected this argument and authorized the petition based on Miller. In re Pendleton, 732 F.3d at 282 n.1. We explained that “whether Grant actually qualifie[d] for relief under Miller” was a merits question for the district court to answer in the first instance. Id.

Similarly, the Fifth Circuit authorized a successive habeas petition for a juvenile sentenced to life without parole in In re Sparks, 657 F.3d 258 (5th Cir. 2010). The Sparks petitioner was convicted of aiding and abetting a carjacking resulting in death. Id. at 260. Notably, he filed his Section 2255(h) motion based upon Graham and prior to Miller. Because his crime resulted in death, the petitioner was arguably seeking to extend Graham to homicide (as the Supreme Court would later do in Miller). Id. at 260 n.1. The Fifth Circuit authorized the petition based upon Graham. Id.

The District of Columbia Circuit also authorized a successive habeas petition in the case of a petitioner serving life without parole in In re Williams, 759 F.3d at 72. In Williams, it was unclear whether the petitioner committed his crimes as a juvenile because he had participated in a conspiracy spanning both his juvenile and adult years. As such, the Government argued that the petitioner was not relying on Graham and Miller but rather an “extension” of those cases. Id. at 70-71. Again, the Court rejected this argument and held that the petitioner “made a prima facie showing that he relie[d] on” Graham and Miller. Id. at 71. Whether those cases “extend[ed]” to the petitioner was a merits question for the district court. Id. at 72 see also id. at 70-71.

At the other end of the spectrum, this Court regularly declines to authorize second or successive habeas petitions that are “foreclosed by our precedent or otherwise frivolous.” In re Arnick, 826 F.3d at 790 (Elrod, J., dissenting). To take the obvious example, we have denied Johnson challenges to the career offender guideline's residual clause in advisory Guidelines cases as foreclosed by Beckles. “Certainly a movant cannot invoke a new rule by reading it so expansively as to contradict binding precedents. The movant's requested extension also cannot be so facially implausible that he is not really ‘relying’ on the new rule at all.” Id. at 791 (citations omitted).

C. The Eighth Circuit's Approach

In contrast to the permissive and flexible, case-by-case approach described and illustrated above, the Government proposes a different test that would strictly define when a petitioner may rely on a qualifying new rule. Specifically, the Government suggests that we take the approach of the Eighth Circuit in Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016). We decline to do so.

In Donnell, the petitioner raised a pre-Beckles challenge to the career offender guideline's residual clause under the advisory Guidelines. Id. at 1015. The Eighth Circuit refused to authorize a second or successive habeas petition on the ground that the petitioner sought to “extend” Johnson. Id. at 1015. More specifically, the Court held that the petitioner impermissibly “urge[d] the creation of a second new rule.” Id. at 1017.

The Eighth Circuit's approach is inconsistent with the text of Section 2255(h)(2), which contains only “three prerequisites,” Tyler, 533 U.S. at 662, and no requirement that we scrutinize a motion to see if it would produce a “second new rule.” Nor does the context of Section 2244(b) support such a position. As stated above, we ordinarily rule on a Section 2255(h)(2) motion within thirty days, 28 U.S.C. § 2244(b)(3)(D), and without the possibility of a “petition for rehearing or for a writ of certiorari,” 28 U.S.C. § 2244(b)(3)(E). As the Supreme Court has observed, we do not “have to engage in ․ difficult legal analysis” under such cramped conditions. Tyler, 533 U.S. at 664.

The Eighth Circuit's approach may be simple to state, but it epitomizes a “difficult” analysis in practice. Although Donnell does not cite Teague, the way to determine whether a Section 2255(h) motion “urges the creation of a second new rule,” Donnell, 826 F.3d at 1017, is to undertake a Teague analysis. The Government agrees. See Br. for Respondent 35 (“The rule that Hoffner seeks to establish ․ is a ‘new’ constitutional rule, because the invalidity of the guideline's residual clause ․ was not ‘dictated by precedent existing at the time [his] conviction became final.’ ”). 15 Whether a rule is “new” under Teague is often uncertain. As a leading treatise puts it, a “review of circuit court decisions applying Teague reveals little to distinguish the rules that have been denominated ‘new’ from those deemed not to be ‘new.’ Indeed, it has become increasingly commonplace to find inter- or intra-circuit conflicts as to whether a particular rule is or is not ‘new.’ Such conflicts may linger for years before the Supreme Court eventually steps in to resolve the matter.” 2-25 Hertz & Liebman, supra, § 25.5 (citations omitted). The search for a “second new rule” is thus ill-suited to the context of Section 2244(b). We decline to adopt the Donnell approach and need not determine whether applying Johnson to Hoffner would create a “second new rule.”

Instead, we consider Hoffner's motion permissively and flexibly, with precedent as a guide. Like the Second, Sixth, Fourth and Tenth Circuits, we conclude that Hoffner has made a “prima facie showing,” 28 U.S.C. § 2244(b)(3)(C), that he relies on Johnson. See Vargas, No. 16-2112 (2d Cir. May 8, 2017) In re Patrick, 833 F.3d at 589 In re Hubbard, 825 F.3d at 231 In re Encinias, 821 F.3d at 1226. We will therefore authorize Hoffner to file a successive habeas corpus petition. It will be for the District Court to determine in the first instance whether his petition has merit.

For the foregoing reasons, we will grant Hoffner's Section 2255(h) motion and authorize him to file a successive habeas corpus petition in the District Court.

1. For ease of reference, we use “habeas corpus petition” or “habeas petition” to refer to a petition filed under 28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375, 377 (2003) (referring interchangeably to “habeas motion” and “§ 2255 motion”).

2. Hoffner was sentenced on May 29, 2002 under the 2001 edition of the Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4)(A) U.S.S.G. § 1B1.11. Without the career offender guideline, Hoffner's offense level would have been 34 and his criminal history category IV, for a Guideline range of 210 to 262 months. Applying the career offender guideline increased his Guideline range to 360 months to life. Continuing the Guideline calculations, the District Court found that Hoffner's criminal history category substantially overstated the seriousness of his criminal history. U.S.S.G. § 4A1.3. The District Court departed downward, producing a final, mandatory Guideline range of 210 to 262 months.

3. A sentencing court can depart from the mandatory minimum sentence only in limited circumstances. Cf. 18 U.S.C. § 3553(e).

4. We need not address the category “watershed rules of criminal procedure.”

5. Beckles quoted the 2006 edition of the Sentencing Guidelines. Beckles, 137 S. Ct. at 890. This definition is the same as the 2001 edition, under which Hoffner was sentenced. See id. at 890 n.1 (citing 18 U.S.C. § 3553(a)(4)(A)). It is also the same as the 2000 edition, which was used to create Hoffner's Presentence Investigation Report.

6. Previously, the career offender guideline defined a “crime of violence” under 18 U.S.C. § 16. See U.S.S.G. § 4B1.2(1) (U.S. Sentencing Comm'n 1988).

7. Beckles abrogated in part United States v. Calabretta, 831 F.3d 128 (3d Cir. 2016), a direct appeal in which we held that the career offender guideline's residual clause is unconstitutionally vague. Id. at 137 & n.10. In this opinion, we need not parse what portions of Calabretta survive Beckles because, as explained below, we are not evaluating Hoffner's claim on the merits.

8. Section 2244(b)(3) applies directly to a state prisoner, without the cross-reference from Section 2255(h). Felker, 518 U.S. at 657.

9. Tyler quoted 28 U.S.C. § 2254(b)(2)(A) because it involved a state prisoner. These requirements are “identical” to the parallel requirements of 28 U.S.C. § 2255(h)(2). In re Olopade, 403 F.3d 159, 162 n.3 (3d Cir. 2005). “Due to this identity of language, we have applied the Tyler holding to federal prisoners seeking to file second or successive habeas applications.” Id. This is so although there is a slight difference between the two sections. Section 2244(b)(2)(A) asks whether a claim “relies on” a qualifying new rule. 28 U.S.C. § 2244(b)(2)(A). Section 2255(h) asks whether the motion “contain[s]” a qualifying new rule. 28 U.S.C. § 2255(h). In Olopade, we did not deem this to be a “relevant portion” of the text. Olopade, 403 F.3d at 162 n.3 see also In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016) (per curiam) (equating “contain” with “rel[y] on”).

10. Johnson is such a “rare case.” Dodd, 545 U.S. at 359. The Supreme Court decided Johnson on June 26, 2015. On April 18, 2016, the Court held in Welch that Johnson is retroactive.

11. The thirty day time limit is “advisory or hortatory rather than mandatory.” In re Siggers, 132 F.3d 333, 335 (6th Cir. 1997).

12. We acknowledge that only Vargas post-dates Beckles, which was decided on March 6, 2017. However, Beckles does not abrogate the other Circuit decisions because, inter alia, they involve the pre-Booker, mandatory Guidelines.

13. In contrast, we do not follow the Eleventh Circuit, which—contrary to our precedent—resolved a merits question in the context of a motion to authorize a second or successive habeas petition. In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (holding that the mandatory career offender guideline cannot be challenged as vague).


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