WILLIE JONES, SR. V. USA, No. 20-71862 (9th Cir. 2022)
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In Petitioner’s first Section 2255 motion, which the district court denied, Petitioner, argued that his Section 924(c)(1)(A) conviction and sentence were invalid under United States v. Davis, 139 S. Ct. 2319 (2019). In the second or successive Section 2255 motion he later sought to file, he again raised a claim that his Section 924(c)(1) conviction and sentence are unlawful under Davis; and he added a claim that under Borden v. United States, 141 S. Ct. 1817 (2021), his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. Sections 113(a)(6) and 1153, cannot serve as a predicate crime of violence for his Section 924(c) conviction, because a violation of Section 113(a)(6) can be committed recklessly.
The court held that Section 2244(b)(1) does not apply to applications for leave to file second or successive motions under Section 2255. Instead, when faced with an application such as that presented by Jones, the court must ask whether it makes a prima facie showing that the second or successive motion relies on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. Section 2255(h)(2). The court explained here, that Petitioner does not make a prima facie showing that either his Davis claim or his Borden claim satisfies this test. Davis was not “previously unavailable,” and Borden did not state a constitutional rule, but rather a statutory one.
Court Description: 28 U.S.C. § 2255 The panel withdrew an opinion filed May 11, 2022, and filed a superseding opinion denying federal prisoner Willie Byron Jones, Sr.’s application for leave to file a second or successive 28 U.S.C. § 2255 motion challenging his conviction and sentence for use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In his first § 2255 motion, which the district court denied, Jones argued that his § 924(c)(1)(A) conviction and sentence were invalid under United States v. Davis, 139 S. Ct. 2319 (2019). In the second or successive § 2255 motion he later sought to file, he again raised a claim that his § 924(c)(1) conviction and sentence are unlawful under Davis; and he added a claim that under Borden v. United States, 141 S. Ct. 1817 (2021), his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, cannot serve as a predicate crime of violence for his § 924(c) conviction, because a violation of § 113(a)(6) can be committed recklessly. In the superseding opinion, the panel wrote that if Jones were seeking relief from a state sentence pursuant to 28 U.S.C. § 2254, there could be a question whether jurisdiction was lacking over the Davis claim because under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section 2254 that JONES V. UNITED STATES 3 was presented in a prior application shall be dismissed.” The panel wrote, however, that whether § 2244(b)(1) is jurisdictional or not, it presents no jurisdictional problem here because Jones moves for relief from a federal sentence pursuant to § 2255. On a question not yet decided in this circuit, and as to which other circuits are divided, the panel held that § 2244(b)(1) does not apply to second or successive § 2255 motions. In so holding, the panel explained that the plain text of § 2244(b)(1) by its terms applies only to state prisoners’ applications “under section 2254”—not federal prisoners’ motions under § 2255; that statutory structure further supports this reasoning; and that policy interests under Antiterrorism and Effective Death Penalty Act do not counsel in favor of applying § 2244(b)(1) to § 2255 motions. The panel wrote that both of Jones’s claims must therefore be analyzed instead under the gateway provisions of § 2255(h). Because Jones did not rest his second or successive motion on new evidence, 28 U.S.C. § 2255(h)(1), the panel could authorize his motion only if it makes a prima facie showing that the claims contain “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C. § 2255(h)(2). The panel held that Jones did not make the necessary prima facie showing under § 2255(h)(2) with respect to his Davis claim because that claim is not “previously unavailable,” where Jones presented that claim to the district court in his first § 2255 motion, and the district court— though it erroneously characterized the predicate offense— held on the merits that Jones was not entitled to relief, and he did not appeal that decision. 4 JONES V. UNITED STATES The panel held that Jones also failed to make a prima facie showing under § 2255(h)(2) with respect to his Borden claim. Borden held that the Armed Career Criminal Act’s definition of “violent felony” in its elements clause, 18 U.S.C. § 924(e)(2)(B)(i), did not include offenses committed recklessly. The ACCA’s elements clause is nearly identical to the elements clause for a “crime of violence” under 18 U.S.C. § 924(c)(2)(A). The government conceded that an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, and after Borden cannot qualify as a predicate offense under § 924(c)(3)(A). The panel concluded, however, that Borden does not provide a basis under § 2255(h)(2) for granting Jones’s application for leave to file a second or successive § 2255 motion because, as a case of statutory interpretation, Borden did not announce a new rule of constitutional law. Dissenting, Judge Wallace disagreed with the majority’s conclusion that § 2244(b)(1) does not apply to second or successive motions by federal prisoners under § 2255. He wrote that Ninth Circuit caselaw, the text and structure of § 2244 and § 2255, as well as the purpose of the Antiterrorism and Effective Death Penalty Act and policy concerns, all support applying § 2244(b)(1) to § 2255 motions. Moreover, the Sixth Circuit is the lone circuit that has held § 2244(b)(1) does not apply to § 2255 motions. Instead of creating a further circuit split, he would follow the approach adopted by the vast majority of all other circuits that have decided the issue and join the Second, Third, Fifth, Seventh, Eighth, and Eleventh Circuits in holding that § 2244(b)(1) applies to § 2255 motions. JONES V. UNITED STATES 5
This opinion or order relates to an opinion or order originally issued on May 11, 2022.
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