Jones v. United States

• Decision Date: 09 June 2022
• Docket Number: 20-71862
• Citation: 36 F.4th 974
• Parties: Willie Byron JONES, Sr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.4th 974

Willie Byron JONES, Sr., Petitioner,

v.UNITED STATES of America, Respondent.

No. 20-71862

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2022 Pasadena, California

Filed June 9, 2022

Michael J. Bresnehan (argued), Law Offices of Michael J. Bresnehan P.C., Tempe, Arizona, for Petitioner.

Karla Hotis Delord (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Division Chief; Glenn B. McCormick, Acting United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Respondent.

Before: J. Clifford Wallace, Danny J. Boggs,^* and Michelle T. Friedland, Circuit Judges.

Order;

Dissent by Judge Wallace

ORDER

The Opinion filed on May 11, 2022 is WITHDRAWN and replaced with a superseding Opinion filed concurrently with this Order.

IT IS SO ORDERED.

BOGGS, Circuit Judge:

Willie Jones, Sr. pled guilty in 2013 to one count of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, as well as one count of 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 June 2020, he moved for postconviction relief under 28 U.S.C. § 2255, arguing that his § 924(c)(1)(A) conviction and sentence were invalid in light of United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). The district court denied the motion in August of that year. Jones now applies to this court for leave to file a second or successive motion for postconviction relief under 28 U.S.C. § 2255. He again raises a claim that his § 924(c)(1)(A) conviction and sentence are unlawful under Davis , and he adds a claim that under Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), his § 113(a)(6) conviction cannot serve as a predicate crime of violence for his § 924(c)(1)(A) conviction, because a violation of § 113(a)(6) can be committed recklessly.

In other words, Jones asks us to authorize a motion containing a previously presented Davis -based claim and a new Borden -based claim. If he 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 "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). But, 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.

Our sister circuits are divided on the matter whether the bar in § 2244(b)(1) applies to second or successive § 2255 motions, and our court has not yet decided that question. We now hold that § 2244(b)(1) does not apply to second or successive § 2255 motions. Instead, both of Jones's claims must be analyzed under the gateway provisions of § 2255(h) to determine whether they make prima facie showings that they either contain newly discovered evidence satisfying additional requirements, see 28 U.S.C. § 2255(h)(1), or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," id. § 2255(h)(2) ; see id. § 2244(b)(3)(C). Jones fails to make this prima facie showing for either his Davis claim or his Borden claim. We therefore deny his application.

I. Factual and Procedural History

On January 12, 2013, Jones shot and wounded a police officer on the Navajo Nation Indian Reservation who had responded to a call that he was drunk and disorderly. A grand jury indicted him on six counts under 18 U.S.C. § 113(a)(6), which concerns "[a]ssault resulting in serious bodily injury"; 18 U.S.C. § 1153, which treats certain acts committed on reservations as federal offenses; 18 U.S.C. § 924(c)(1)(A), which punishes the use, carrying, or possession of a firearm "during and in relation to any crime of violence or drug trafficking crime"; and other felony-assault charges not at issue here. The term "crime of violence" in § 924(c)(1)(A) is defined in two ways. 18 U.S.C. § 924(c)(3). First, under what is known as the elements clause, a felony qualifies as a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 924(c)(3)(A). Second, under the so-called residual clause, a felony qualifies as a crime of violence if it is an offense "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Id. § 924(c)(3)(B).

Jones ultimately pled guilty on October 30, 2013 to one count of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, as well as one count of use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). His plea agreement stated that he waived his right to move for postconviction relief under 28 U.S.C. § 2255, among other appeal waivers. On July 2, 2014, the district court sentenced him to consecutive terms of imprisonment of 63 months on the assault count and 120 months on the firearm count, followed by concurrent three-year terms of supervised release on each count.

Jones timely filed an appeal to our court challenging his sentence. While that appeal was pending, in 2015, he filed a pro se motion under § 2255. The district court dismissed the motion without prejudice because his direct appeal was still pending. We then affirmed his sentence in a memorandum disposition. United States v. Jones , 633 F. App'x 440 (9th Cir. 2016) (mem.).

Jones filed another pro se § 2255 motion on June 18, 2020, arguing that Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), established a new, retroactive rule that was not previously available to him.¹ On the same day, he moved for appointment of counsel, citing Davis . That decision held that the residual clause, 18 U.S.C. § 924(c)(3)(B), was void for vagueness. Davis , 139 S. Ct. at 2323–24. Although Jones discussed the decisions in separate filings, the district court construed both the Alleyne and Davis claims as part of the same motion for postconviction relief (the "First § 2255 Motion").

On June 22, 2020, while the First § 2255 Motion was pending, Jones filed a pro se application to the Ninth Circuit for leave to file a second or successive § 2255 motion. Construed liberally, see Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), it asserted several grounds for relief. First, it pointed to our grant of the petition for rehearing en banc following our decision in United States v. Orona , 923 F.3d 1197 (9th Cir.), reh'g en banc granted , 942 F.3d 1159 (9th Cir. 2019) (mem.), which we stayed pending the outcome of Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021).² Second, it referenced a series of Supreme Court decisions striking down various criminal statutes as unconstitutionally vague: Davis , 139 S. Ct. 2319 (concerning 18 U.S.C. § 924(c)(3)(B) ); Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018) (concerning 18 U.S.C. § 16(b) ); and Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II ") (concerning 18 U.S.C. § 924(e)(2)(B) ). Finally, it argued that at least some of these decisions were retroactively applicable to his collateral attack, relying on Welch v. United States , 578 U.S. 120, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), and Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

The district court summarily dismissed the First § 2255 Motion on August 18, 2020. The court rejected the Alleyne claim because the Supreme Court had already issued that decision by the time of Jones's guilty plea, Jones had waived his appeal rights, and the Alleyne issue did not go to the voluntariness of his waiver. It then held that Davis did not support Jones's motion, either, because that decision concerned the residual clause, while it said that Jones "was convicted of discharging a weapon in relation to Hobbs Act robbery," a crime of violence under the elements clause. See United States v. Dominguez , 954 F.3d 1251, 1261 (9th Cir. 2020). Notably, the court incorrectly characterized Jones's predicate "crime of violence" as Hobbs Act robbery when he actually was convicted under § 113(a)(6), which penalizes "[a]ssault resulting in serious bodily injury." The court also declined to issue a certificate of appealability ("COA"). Jones did not appeal.

Nevertheless, on November 16, 2020, a panel of this court issued an order stating that Jones's present application for leave to file a second or successive motion merited further briefing and directing the appointment of counsel.³ The panel specified that the briefing must address two issues: (1) whether 28 U.S.C. § 2244(b)(1) divests this court of jurisdiction to authorize Jones's claim, and (2) if not, whether, pursuant to Davis , assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is not a qualifying predicate crime of violence under 18 U.S.C. § 924(c), meaning that Jones's § 924(c) conviction and sentence must be vacated.

After that order was issued, but before the government filed its brief in opposition to Jones's application, the Supreme Court issued its decision in Borden , holding that "[o]ffenses with a mens rea of recklessness do not qualify as violent felonies" under the elements clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(i). 141 S. Ct. at 1834 (plurality op.). That provision is nearly identical to the firearms charge under which Jones was convicted. Compare 18 U.S.C. § 924(e)(2)(B)(i) (defining "violent felony" as felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another"), with id. § 924(c)(3)(A) (d...