USA v. Lindsey, No. 20-10072 (5th Cir. 2022)

Annotate this Case

Download PDF

Case: 20-10072 Document: 00516203429 Page: 1 Date Filed: 02/15/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 15, 2022 No. 20-10072 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Timothy Lindsey, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CV-514 USDC No. 4:09-CR-135-1 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Timothy Lindsey, federal prisoner # 15723-077, has appealed the district court’s judgment dismissing his successive motion under 28 U.S.C. § 2255 challenging his 180-month sentenced imposed under the Armed * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-10072 Document: 00516203429 Page: 2 Date Filed: 02/15/2022 No. 20-10072 Career Criminal Act (ACCA). Previously, we granted Lindsey’s motion for authorization to file a successive § 2255 motion based on the holding of Johnson v. United States, 576 U.S. 591 (2015). We specified, however, that the grant was “tentative in that the district court must dismiss the § 2255 motion without reaching the merits if it determines that Lindsey has failed to make the showing required to file such a motion.” Thereafter, Lindsey filed a successive § 2255 motion based on Johnson and Welch v. United States, 578 U.S. 120, 127-30 (2016). The Government asserted that Lindsey had failed to show that his motion relied on Johnson because his predicate Texas burglary convictions qualified as violent felonies under the ACCA’s enumerated-offense clause as, at the time of his sentencing in 2010, those convictions qualified as generic burglaries. The district court determined that it lacked jurisdiction because Lindsey had failed to demonstrate that it was more likely than not that the sentencing court relied on the ACCA’s residual clause when Lindsey was sentenced. See United States v. Clay, 921 F.3d 550, 554 (5th Cir. 2019); United States v. Wiese, 896 F.3d 720, 726 (5th Cir. 2018). Lindsey asserts that a Texas burglary under Texas Penal Code § 30.02(a) is indivisible and is categorically broader than the enumerated offense of burglary. He concedes that this question is foreclosed by United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019) (en banc), but he raises the issue to preserve it for further review. He moves this court to expand the certificate of appealability to include the merits and to find for him. The motion is DENIED. See id.; see also United States v. Wallace, 964 F.3d 386, 2 Case: 20-10072 Document: 00516203429 Page: 3 Date Filed: 02/15/2022 No. 20-10072 389-90 (5th Cir.) (discussing and declining to limit Herrold), cert. denied, 141 S. Ct. 910 (2020)1. Lindsey asserts that this court’s prefiling authorization satisfies the only statutory prerequisite for filing a second or successive § 2255 motion. He contends that the gatekeeping requirements of 28 U.S.C. §§ 2244(b) and 2255(h) are non-jurisdictional. As will be discussed, this court held otherwise in Clay and Wiese. Under the rule of orderliness, one panel of this court may not overturn another panel’s decision absent an intervening change in the law. See Austin v. Davis, 876 F.3d 757, 778 (5th Cir. 2017). “A second or successive habeas application must meet strict procedural requirements before a district court can properly reach the merits of the application.” Wiese, 896 F.3d at 723; see §§ 2244(b), 2255(h). A prisoner pursuing a successive § 2255 motion must pass through two jurisdictional “gates” to have his motion heard on the merits. Wiese, 896 F.3d at 723 (internal quotation marks and citation omitted). Lindsey has passed through the first gate by obtaining this court’s authorization to file a successive motion. See id. To pass through the second gate, Lindsey must prove that “it was more likely than not that he was sentenced under the residual clause.” Clay, 921 F.3d at 559. The district court determined that Lindsey had failed to meet that burden. Lindsey invokes United States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017), which, he contends, was inconsistent with Wiese and Clay, and is controlling. This contention has been rejected previously. See United States v. Medina, 800 F. App’x 223, 225 n.2 (5th Cir.), cert. denied, 141 S. Ct. 1048 1 Unpublished opinions issued in or after 1996 “are not precedent” except in limited circumstances, 5th Cir. R. 47.5.4, but they “may be persuasive authority,” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006). 3 Case: 20-10072 Document: 00516203429 Page: 4 Date Filed: 02/15/2022 No. 20-10072 (2020); United States v. Hernandez, 779 F. App’x 195, 199 n.3 (5th Cir. 2019). While Medina and Hernandez are not binding, see 5th Cir. R. 47.5.4, they are persuasive authority, Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006), and we choose to adopt them here. See Clay, 921 F.3d at 555 & 558 n.3 (noting that this court declined in Taylor to establish a standard for determining whether the sentencing court relied improperly on the residual clause); Wiese, 896 F.3d at 720 (same); Taylor, 873 F.3d at 481. Lindsey asserts that, under 2010 law, the sentencing court could not determine that his habitation burglaries were enumerated burglaries without the state court records, which it did not have, and that the district court could not rely on the characterization of an offense in the presentence report when applying the prior conviction enhancement. These contentions are without merit. Under United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008), the sentencing court could have determined that Lindsey’s Texas burglary convictions qualified as enumerated burglaries under § 30.02(a)(1) or not at all. In Wiese, this court recognized that, in determining a sentencing court’s potential reliance on the residual clause, it could look at the sentencing record for direct evidence of the sentence, the relevant background legal environment, and the presentence report and other relevant materials before the district court. 896 F.3d at 725; see also Clay, 921 F.3d at 558. In this case the presentence report shows that three of Lindsey’s burglaries were generic burglaries under § 30.02(a)(1). In each prior case, the probation officer found, based on court disposition records, that Lindsey “intentionally . . . , without the effective consent of the owner, entered a habitation with intent to commit theft.” Thus, contrary to Lindsey’s contention, the record reflects that the sentencing court did have access to the terms of the pertinent state documents. We note that Lindsey asserted no objection to the probation officer’s findings. 4 Case: 20-10072 Document: 00516203429 Page: 5 Date Filed: 02/15/2022 No. 20-10072 For the foregoing reasons, the district court did not err in holding that Lindsey failed to meet his burden of showing by a preponderance of the evidence that the sentencing court relied on the ACCA residual clause. See Clay, 921 F.3d at 559. The judgment is AFFIRMED. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.