United States District Court, W.D. Oklahoma
HEATON CHIEF U.S. DISTRICT JUDGE
Cory Devon Washington has filed this second application for
writ of habeas corpus, challenging his criminal sentence. In
2011, petitioner pled guilty to two criminal charges: (1)
being a felon in possession of a firearm and (2) knowingly
possessing a destructive device not registered to him. The
presentence report detailed his lengthy criminal history,
which included a juvenile adjudication for pointing a weapon
and adult convictions for assault and battery with a
dangerous weapon and second degree burglary. The report
recommended sentence enhancement under the Armed Career
Criminal Acts (“ACCA”) 18 U.S.C. § 924, as
those incidents qualified as violent felonies. The court
adopted the presentence report and sentenced petitioner to
concurrent terms of 180 months and 120 months in prison. His
sentence was affirmed on appeal in 2012.
sought relief under 28 U.S.C. § 2255 in 2014, arguing
that his counsel was ineffective for not raising issues
related to his juvenile adjudication and burglary
convictions. The court denied relief.
to 28 U.S.C. § 2254, petitioner has now sought
authorization from the Tenth Circuit to file a second
application for a writ of habeas corpus in order to raise
claims under Johnson v. United States, 135 S.Ct.
2574 (2015). The Tenth Circuit granted petitioner's
request and petitioner filed his second application for a
writ of habeas corpus. For the reasons stated below,
petitioner's application is denied.
or successive habeas applications can only be presented to a
federal district court if the petitioner has fulfilled the
requirements of 28 U.S.C. § 2244(b). First, a petitioner
can only bring a claim that is based on a new rule of
constitutional law or asserts new factual evidence of
innocence. Id. § 2244(b)(2). A petitioner must
then obtain authorization from the appropriate court of
appeals to present the claims in district court. Id.
§ 2244(b)(3)(A). However, the court of appeals panel
only determines whether the application makes a prima
facie showing that it fulfills the applicable
requirements. Id. § 2244(b)(3)(C). The district
court must still examine the application, and shall dismiss
“any claim presented . . . unless the applicant shows
that the claim satisfies” the requirements of Section
2244. In short, as relevant in this case, Section 2244
requires the petitioner to identify a claim based on a new
rule of constitutional law, obtain approval to present that
claim to the district court, and show the district court that
the application meets those two requirements. Otherwise, the
district court must dismiss the application. Petitioner's
application fails to satisfy these requirements.
petitioner's claim does not rely on a new rule of
constitutional law, at least not the new rule that Tenth
Circuit cited when it authorized his successive application.
The Tenth Circuit specifically gave petitioner permission to
raise a claim under Johnson v. United States, 135
S.Ct. 2551 (2015). [Doc. #74] at 2. Johnson involved
a vagueness challenge to the ACCA's “residual
clause.” The ACCA allows for sentence enhancement when
a person convicted of being a felon in possession of a
firearm has three previous convictions for violent felonies
or serious drug offenses. 18 U.S.C. § 924(e)(1). The
ACCA defines violent felonies to include offenses that
include the threat or use of physical force against another
person. The definition also includes burglary, arson, or
extortion, and crimes that involve the use of explosives.
Finally, the ACCA says that any offense which
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” qualifies
as a violent felony. Id. § 924(e)(2)(B)(ii).
This catch-all phrase is called the residual clause. In
Johnson, the Supreme Court determined that the
residual clause was unconstitutionally vague. 135 S.Ct. at
2557. The Supreme Court noted, however, that Johnson
did not affect the ACCA's treatment of the enumerated
offenses of burglary, arson, extortion, use of explosives as
violent felonies, or offenses that included a threat or use
of physical force against another person. Id. at
fails to raise any Johnson claims, as he does not
allege than any of his predicate convictions rested on the
now invalid residual clause of the ACCA. His claims regarding
his burglary and assault and battery with a dangerous weapon
convictions are that those convictions are not proper
predicates under Mathis v. United States, 136 S.Ct.
2243 (2016). Those Mathis-based claims are barred
for two reasons. First, the Tenth Circuit recently held, in
an unpublished case, that Mathis did not announce a
new substantive rule. United States v. Taylor, F.
App'x, 2016 WL 7093905 at *4 (10th Cir. Dec. 6, 2016).
Therefore, petitioner “cannot rely on [Mathis]
in a [second or successive habeas] petition filed [over
three] years after the judgment in his criminal case became
final.” Id. Second, even if Mathis
did introduce a new substantive rule, petitioner still failed
to satisfy the requirements of Section 2244 because he did
not obtain authorization from the circuit to raise a
Mathis claim. The Tenth Circuit specifically limited
the successive application to claims under Johnson.
[Doc. #74] at 2. Petitioner presents no argument or evidence
showing that the court relied on the residual clause in
finding that those convictions were violent felonies.
Therefore petitioner fails to raise a Johnson
claim regarding his juvenile adjudication is also not
authorized under the Tenth Circuit's order. Petitioner
does not claim that the court relied on the residual clause
to determine that the incident was a violent felony, but
instead focuses on whether that incident was a conviction.
That is not a claim arising under Johnson, and is
therefore not authorized by the Tenth Circuit's order.
has failed to show that his successive application for a writ
of habeas corpus meets the requirements of 28 U.S.C. §
2244. As such, the application is DISMISSED.