WILLIE JONES, SR. V. USA, No. 20-71862 (9th Cir. 2022)Annotate this Case
Petitioner pled guilty one count of assault resulting in serious bodily injury and one count of use of a firearm during and in relation to a crime of violence. He moved for postconviction relief under Section 2255, arguing that his Section 924(c)(1)(A) conviction and sentence were invalid in light of United States v. Davis, 139 S. Ct. 2319 (2019). The district court denied the petition and Petitioner sought leave to file a second or successive motion for postconviction relief under Section 2255. He, again, claimed that his Section 924(c)(1)(A) conviction and sentence are unlawful under Davis, and he added a claim that under Borden v. United States, 141 S. Ct. 1817 (2021), his Section 113(a)(6) conviction cannot serve as a predicate crime of violence for his Section 924(c)(1)(A) conviction.
The Ninth Circuit denied Petitioner’s application for leave to file a second or successive Section 2255 motion. The court held Petitioner did not make the necessary prima facie showing under Section 2255(h)(2) with respect to his Davis claim because that claim is not “previously unavailable,” where Petitioner presented that claim to the district court in his first Section 2255 motion, and the district court erroneously held on the merits that Petitioner was not entitled to relief, and he did not appeal that decision. Additionally, Borden does not provide a basis under Section 2255(h)(2) for granting Petitioner’s application for leave to file a second or successive Section 2255 motion because Borden did not announce a new rule of constitutional law.