Jones v. United States
| Decision Date | 11 May 2022 |
| Docket Number | 20-71862 |
| Parties | Willie Byron Jones, Sr., Petitioner, v. United States of America, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted January 10, 2022 Pasadena, California
Application to File Second or Successive Motion Under 28 U.S.C. § 2255
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.
28 U.S.C. § 2255
The panel denied 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.
The panel held that 28 U.S.C. § 2244(b)(1)-which provides that a claim presented in a second or successive § 2254 application that was presented in a prior application shall be dismissed-sets out a jurisdictional rule rather than a claim-processing rule, but does not apply to federal prisoners' motions under § 2255.
The panel therefore turned to whether Jones satisfied the requirements set forth in 28 U.S.C. § 2255(h) to bring a second or successive motion.
The panel held that Jones did not make the necessary prima facie showing under 28 U.S.C. § 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.
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 commit 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.
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.
OPINION
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, 139 S.Ct. 2319 (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, 141 S.Ct. 1817 (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, we would lack jurisdiction over the Davis claim and dismiss it, 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 he moves for relief from a federal sentence pursuant to § 2255. This court has not yet decided whether the bar in § 2244(b)(1) applies to second or successive § 2255 motions, and our sister circuits are divided on the matter.
We 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.
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 Fed.Appx. 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 (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...
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