Opposition Brief — Everett B. Robinson, Petitioner v. United States

Supreme Court briefJun 11, 2018

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No. 17-8457

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

EVERETT B. ROBINSON, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

JENNY C. ELLICKSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTION PRESENTED

Whether petitioner was entitled to postconviction relief

based on Johnson v. United States, 135 S. Ct. 2551 (2015), which

invalidated the residual clause of the definition of a “violent

felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e),

where the court of appeals found that the law at the time of

petitioner’s sentencing supported his sentence under a different

clause of the definition of a “violent felony” and the record

contained no indication that the sentencing court instead relied

on the residual clause.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-8457

EVERETT B. ROBINSON, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A16) is not

published in the Federal Reporter but is reprinted at 720 Fed.

Appx. 946.

The order of the district court (Pet. App. B1-B9) is

not published in the Federal Supplement but is available at 2017

WL 437417.

JURISDICTION

The judgment of the court of appeals was entered on January

9, 2018.

The petition for a writ of certiorari was filed on April

9, 2018. The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Oklahoma, petitioner was convicted of

possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1).

Judgment 1.

The district court sentenced petitioner

to 180 months of imprisonment, to be followed by three years of

supervised release.

Id. at 2-3.

The court of appeals affirmed,

304 Fed. Appx. 746, and this Court denied a petition for a writ of

certiorari, 556 U.S. 1250.

In 2010, petitioner filed a motion to

vacate his sentence under 28 U.S.C. 2255.

2010).

D. Ct. Doc. 64 (May 6,

The district court denied that motion, D. Ct. Doc. 67, at

1-2 (May 12, 2010), and the court of appeals denied a certificate

of appealability (COA), 401 Fed. Appx. 334.

authorization

file

two

Petitioner sought

second-or-successive

Section 2255, which the court of appeals denied.

motions

under

See 15-6153 C.A.

Order, at 1-3 (Sept. 24, 2015); 544 Fed. Appx. 798.

In 2016,

petitioner filed an authorized second-or-successive motion under

Section 2255.

D. Ct. Doc. 94 (May 20, 2016).

The district court

denied petitioner’s motion and denied a COA.

Pet. App. B1-B9.

The court of appeals granted a COA and affirmed.

Id. at A1-A16.

In 2006, police officers responded to a report of a

domestic dispute at an apartment building involving a man waving

a gun and threatening a woman.

Presentence Investigation Report

(PSR) ¶ 4.

As the officers approached the scene, they saw

petitioner ducking behind the building and then walking away.

¶¶ 4-5.

PSR

The officers stopped petitioner and discovered a loaded

.38-caliber revolver in his coat pocket.

PSR ¶ 4.

A jury

subsequently found petitioner guilty of possession of a firearm by

a felon, in violation of 18 U.S.C. 922(g)(1).

Judgment 1.

The default sentencing range for a violation of Section

922(g)(1)

zero

ten

years

imprisonment.

U.S.C.

924(a)(2). The Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.

924(e), prescribes a sentence of 15 years to life in prison if the

defendant has at least three prior convictions for a “serious drug

offense” or a “violent felony.”

18 U.S.C. 924(e)(1).

The ACCA

defines a “violent felony” as an offense punishable by more than

a year in prison that

(i)

has as an element the use, attempted use, or

threatened use of physical force against the person

of another; or

(ii)

is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury

to another.

18 U.S.C. 924(e)(2)(B).

Clause (i) is known as the “elements

clause”; the first part of clause (ii) is known as the “enumerated

offenses clause”; and the latter part of clause (ii) (beginning

with “otherwise”) is known as the “residual clause.”

United States, 136 S. Ct. 1257, 1261 (2016).

See Welch v.

In its presentence report, the Probation Office determined

that petitioner was subject to an enhanced sentence under the ACCA.

PSR ¶¶ 19, 80.

three

prior

The Probation Office found that petitioner had

convictions

that

qualified

violent

felonies,

including a 1973 Oklahoma conviction for robbery with a firearm,

a 1989 Arkansas burglary conviction, and a 2005 Oklahoma conviction

for assault and battery with a dangerous weapon.

31, 35.

PSR ¶¶ 19, 23,

Relying on court records, the Probation Office determined

that petitioner’s Arkansas burglary offense involved burglary of

a house.

PSR ¶ 31.

The Probation Office did not, however,

expressly determine whether that offense qualified as an ACCA

predicate under the enumerated offenses clause (which includes

“burglary”) or the residual clause.

Petitioner objected to the Probation Office’s reliance on his

Oklahoma robbery and Arkansas burglary convictions on the ground

that the offenses were too old to justify an enhanced sentence

under the ACCA.

D. Ct. Doc. 48, at 2-5 (Aug. 27, 2007); see PSR

Addendum 23-24.

He did not, however, object to the classification

of those offenses as violent felonies.

The

district

court

accepted

the

Probation

Office’s

determination that petitioner was an armed career criminal and

overruled his objection based on the age of his prior convictions.

Sent. Tr. 3-4.

imprisonment.

The court sentenced petitioner to 180 months of

Id. at 10; see Judgment 2.

The court of appeals

affirmed.

304 Fed. Appx. 746.

a writ of certiorari.

This Court denied a petition for

556 U.S. 1250.

In 2010, petitioner filed a motion to vacate his sentence

under Section 2255 in which he alleged several errors related to

the conduct of his trial.

See D. Ct. Doc. 64, at 4-11.

The

district court denied that motion, D. Ct. Doc. 67, at 1-2, and the

court of appeals denied a COA, 401 Fed. Appx. 334.

135

In 2015, this Court held in Johnson v. United States,

Ct.

2551,

that

unconstitutionally vague.

the

ACCA’s

Id. at 2557.

residual

clause

The Court explained,

however, that its decision invalidating the residual clause “d[id]

not call into question application of the [ACCA] to the four

enumerated offenses, or the remainder of the [ACCA’s] definition

of a violent felony.”

Id. at 2563.

The Court later held in Welch,

supra, that Johnson announced a substantive rule that applies

retroactively on collateral review.

136 S. Ct. at 1265.

In 2016, petitioner obtained authorization to file a secondor-successive motion for postconviction relief under Section 2255.

Pet. App. B1.

Petitioner argued (as relevant here) that his

conviction for Arkansas burglary could not qualify as a violent

felony under the ACCA’s residual clause following Johnson.

Doc. 94, at 11.

D. Ct.

He further argued that Arkansas burglary did not

qualify as a violent felony under the enumerated offenses clause.

Id. at 4.

Although petitioner’s pro se motion did not describe

the bases for the latter argument, it presumably rested on the

contention that the version of Arkansas’s burglary statute under

which petitioner was convicted (which included burglary of certain

vehicles used for habitation or commercial purposes, see Ark. Code

Ann. §§ 5-39-101(1) and 5-39-201(a) (West 1987)) was broader than

generic “burglary” under the enumerated offenses clause (which is

defined to include burglary of a “building or other structure,”

Taylor v. United States, 495 U.S. 575, 598 (1990)).

The

untimely.

district

court

denied

petitioner’s

motion

for

Pet. App. B4-B5.

federal

prisoner

generally

must

file

postconviction relief within one year of the date on which his

“judgment of conviction becomes final.”

28 U.S.C. 2255(f)(1).

Petitioner’s conviction became final when this Court denied his

petition for a writ of certiorari in 2009, and thus the district

court concluded that the deadline for filing a Section 2255 motion

had “clearly passed.”

The

district

Pet. App. A5.

court

further

determined

that

petitioner’s

motion did not satisfy the statute-of-limitations exception for

motions filed within one year of the date on which a “new[],”

retroactively applicable right to relief “was initially recognized

by the Supreme Court.”

28 U.S.C. 2255(f)(3); see Pet. App. B5.

The court reasoned that petitioner could not rely on Johnson as

the start of a new one-year limitations period for filing his

motion because “burglary is an enumerated offense under the ACCA”

and Johnson did not “call

* * *

the enumerated offenses clause.

into question” the validity of

Pet. App. B4.

The court further

determined that petitioner’s challenge to the application of the

enumerated offenses clause was untimely because that challenge

relied on Mathis v. United States, 136 S. Ct. 2243 (2016), which

“did not recognize a new rule” for purposes of Section 2255(f)(3).

Pet. App. B5.

The court also denied a COA.

Id. at B9.

The court of appeals granted a COA to review petitioner’s

contention that his Arkansas burglary conviction was not an ACCA

“violent felony,” and affirmed.

Pet. App. A1-A16.

A prisoner may not obtain second-or-successive relief

under Section 2255 unless he establishes (as relevant here) that

his claim relies on a new, retroactively applicable “rule of

constitutional

2244(b)(2)(A).

restriction,

law.”

U.S.C.

2255(h)(2);

see

U.S.C.

The court determined that, in light of that

petitioner

was

required

prove

that

his

ACCA

sentence was the result of constitutional error under Johnson.

Pet. App. A4-A5. The court explained that, to satisfy that burden,

petitioner was required to show in light of “the sentencing record”

and “the relevant background legal environment at the time of

sentencing” that he was sentenced under the ACCA’s residual clause

rather than the enumerated offenses clause.

Id. at A5 (quoting

United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017),

cert. denied, No. 17-7157 (Apr. 30, 2018)).

The court of appeals determined that petitioner had failed to

satisfy his burden of proof. Pet. App. A6-A10. The court observed

that petitioner’s 2007 sentencing “occurred against the backdrop”

of this Court’s decisions in Taylor, supra, and Shepard v. United

States, 544 U.S. 13 (2005), which had been interpreted to permit

courts to consider judicial records of a prior conviction in

determining whether an offense qualified as a “violent felony”

under the ACCA’s enumerated offenses clause.

Pet. App. A6 (citing

Snyder, 871 F.3d at 1129); see Shepard, 544 U.S. at 26; Taylor,

495 U.S. at 602.

The court noted that the Probation Office had

“examined underlying state-court documents, without any objection

[petitioner],

and

determined

that

conviction involved entry into a house.”

his

Arkansas

burglary

Pet. App. A8.

The court of appeals therefore determined that the sentencing

court would have had ample grounds for classifying petitioner’s

offense as generic burglary under the enumerated offenses clause

even if the Arkansas statute under which he was convicted covered

some non-generic forms of burglary.

See Pet. App. A7-A9.

The

court found “no mention whatsoever of the residual clause in the

presentence report or any of the other district court pleadings or

transcripts.”

Id. at A9.

The court also observed that, “given

the

background

legal

relevant

environment”

the

time

petitioner’s sentencing, the sentencing court would have had “no

need for reliance on the residual clause.”

Id. at A9 (quoting

Snyder, 871 F.3d at 1130) (brackets omitted).

The court thus

determined that petitioner’s claim was “not a true Johnson claim,

but is rather a poorly disguised claim” challenging the application

of the enumerated offenses clause under Taylor and Shepard, which

did not warrant postconviction relief. Id. at A10 (quoting Snyder,

871 F.3d at 1130).

The court of appeals denied a COA on petitioner’s claim

that his sentence violated his due process rights, which was

premised on the theory that he had erroneously been classified as

an armed career criminal and thereby received a sentence above the

statutory maximum term of imprisonment that would otherwise have

applied.

See Pet. App. A11-A12.

The court observed, as a

threshold matter, that it was “not clear” whether petitioner had

preserved that claim in the district court.

Id. at A11.

The court

further determined that, in any event, petitioner’s claim was not

based on a new, retroactively applicable rule of constitutional

law

announced

this

Court,

and

thus

did

not

satisfy

the

requirements for second-or-successive relief under Section 2255.

Ibid. (citing 28 U.S.C. 2255(h)(2)). The court therefore concluded

that “no reasonable jurist could debate whether [petitioner] is

entitled to proceed with an independent due process claim.”

at A11-A12.

Id.

Judge Holmes filed a concurring opinion in which he

expressed his view that United States v. Spring, 80 F.3d 1450 (10th

Cir. 1996) -- a decision cited in the government’s brief as support

for

its

contention

that

Arkansas

burglary

would

have

been

classified as a violent felony under the ACCA’s enumerated offenses

clause at the time of petitioner’s sentencing -- had been abrogated

this

Court’s

decision

Shepard.

Pet.

App.

A13-A16.

Nonetheless, Judge Holmes “join[ed] in full” the panel’s opinion,

which did not cite Spring.

Id. at A16.

ARGUMENT

Petitioner contends (Pet. 7-20) that the court of appeals

erred by requiring him to show that he was sentenced under the

ACCA’s residual clause, as opposed to the enumerated offenses

clause, in order to obtain relief under Johnson v. United States,

135 S. Ct. 2551 (2015).

The decision below is correct and does

not conflict with decisions of any other court of appeals.

This

Court has recently denied review of similar claims in other cases.

See Westover v. United States, No. 17-7607 (Apr. 30, 2018); Snyder

v. United States, No. 17-7157 (Apr. 30, 2018).

The same result is

appropriate here.

federal

prisoner

generally

may

not

obtain

postconviction relief unless he establishes that his sentence was

“imposed in violation of the Constitution or laws of the United

States.”

U.S.C.

2255(a);

see

U.S.C.

2244(b)(2)(A),

2255(h)(2) (providing that second-or-successive relief is limited

to claims based on a new, retroactively applicable “rule of

constitutional

law”).

That

stringent

standard

reflects

the

principle that collateral review “is an extraordinary remedy” that

“will not be allowed to do service for an appeal.”

Bousley v.

United States, 523 U.S. 614, 621 (1998) (citation omitted).

After

the completion of direct review in a criminal case, “a presumption

of finality and legality attaches to the conviction and sentence,”

Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (citation omitted),

and courts are “entitled to presume” that the defendant’s sentence

is lawful, United States v. Frady, 456 U.S. 152, 164 (1982).

“presumption of regularity

* * *

That

makes it appropriate to assign

a proof burden to the defendant” on collateral review.

Parke v.

Raley, 506 U.S. 20, 31 (1992); see Hawk v. Olson, 326 U.S. 271,

279 (1945) (explaining that a prisoner necessarily “carries the

burden in a collateral attack on a judgment”).

The limitations on postconviction relief, and the prisoner’s

burden of proof in that context, preclude an approach that would

grant relief from an ACCA sentence based on Johnson without

requiring the prisoner to show that his sentence was actually the

result of Johnson error.

Johnson invalidated the ACCA’s residual

clause, but it “d[id] not call into question application of the

[ACCA] to the four enumerated offenses, or the remainder of the

[ACCA’s] definition of a violent felony.”

135 S. Ct. at 2563.

Whether viewed as a question of timeliness, as the district court

did (Pet. App. B3-B5), or as a matter that affects the underlying

merits of the claim, as the court of appeals did (id. at A5-A10),

a prisoner who fails to prove that his ACCA sentence actually

depended on application of the residual clause fails to carry his

burden of demonstrating a constitutional violation that would

entitle him to collateral relief.

Because petitioner failed to

make that showing -- indeed, the court of appeals’ examination of

the

record

and

relevant

legal

background

the

time

petitioner’s sentencing indicated that his sentence was based on

the enumerated offenses clause and not the residual clause, ibid.

-- relief was properly denied.

Petitioner’s contrary arguments upend the burden of

proof on collateral review.

He contends (Pet. 10) that because a

sentencing court “may have” relied on the ACCA’s residual clause

to classify Arkansas burglary as a violent felony, he should be

granted resentencing to avoid the possibility of Johnson error.

Cf. Pet. App. A5 (noting petitioner’s argument below “that he

should get the benefit of the doubt as to whether he was sentenced

under the residual clause”).

But that contention ignores the

stringent limitations on postconviction relief.

prove

that

his

sentence

was

“imposed

Constitution or laws of the United States.”

Petitioner must

violation

the

28 U.S.C. 2255(a).

In the context of a Johnson claim, that standard requires a showing

that he was sentenced under the unconstitutional residual clause.

If he was instead sentenced under the enumerated offenses clause,

which

Johnson

explicitly

“d[id]

not

call

135

Ct.

2563,

show

then

can

into

question,”

fundamental

error

warranting collateral relief.

Petitioner

asserts

(Pet.

13)

that,

before

Johnson,

“sentencing judges did not need to rely on” the ACCA’s other

clauses because “relying on the residual clause would have been

the easier and more available route” to impose an ACCA sentence.

That assertion is incorrect.

Petitioner’s prior conviction was

for

enumerated

burglary,

which

924(e)(2)(B)(ii).

the

Tenth

Circuit

offense.

U.S.C.

As the pre-Johnson experience in this Court and

demonstrates,

the

most

natural

basis

for

classifying a burglary conviction as an ACCA violent felony was to

classify it as “burglary” under the enumerated offenses clause.

See, e.g., Taylor v. United States, 495 U.S. 575, 598-599 (1990)

(reviewing classification of convictions for Missouri burglary);

United States v. King, 422 F.3d 1055, 1058 (10th Cir. 2005) (same

for New Mexico commercial burglary), cert. denied 546 U.S. 1120

(2006); United States v. Hill, 53 F.3d 1151, 1155 (10th Cir.) (en

banc) (same for Oklahoma second-degree burglary), cert. denied,

516 U.S. 900 (1995); United States v. Barney, 955 F.2d 635, 640

(10th Cir. 1992) (same for Wyoming burglary).

And as the court of

appeals’ opinion indicates, the sentencing court in this case

likely applied the enumerated offenses clause, not the residual

clause, when it sentenced petitioner in 2007.

Pet. App. A5-A10.

The fact that courts sometimes relied on the residual clause

to conclude that specific burglary offenses qualified as ACCA

predicates does not suggest that the residual clause was “the

analytical path of least resistance” in every case. Pet. 16. Some

courts of appeals considered whether burglary offenses qualified

under the residual clause only after determining that the relevant

offense did not fall within the enumerated offenses clause.

See,

e.g., United States v. Coleman, 655 F.3d 480, 482-483 (6th Cir.

2011), cert. denied, 565 U.S. 1129 (2012); United States v. Mayer,

560 F.3d 948, 959-960 (9th Cir.), cert. denied, 558 U.S. 860

(2009).

Analysis under the residual clause required courts to

consider “whether the conduct encompassed by the elements of the

offense, in the ordinary case, present[ed] a serious potential

risk of injury to another” that was comparable to the risk posed

by the enumerated offenses (including “burglary”), James v. United

States, 550 U.S. 192, 208 (2007), overruled by Johnson, 135 S. Ct.

2563, which were themselves “far from clear in respect to the

degree of risk each poses,” Begay v. United States, 553 U.S. 137,

143 (2008).

See Johnson, 135 S. Ct. at 2557-2558 (describing

problems in comparing burglary offenses to the residual clause).

A determination that a particular crime qualified as “burglary”

under the enumerated offenses clause often presented the more

straightforward path to applying the ACCA.

Petitioner’s assertion that the court of appeals’ decision

arbitrarily conditions relief on whether the sentencing court

“uttered the magic words ‘residual clause,’” Pet. 16 (citation

omitted), is incorrect.

As the court explained, a prisoner can

meet his burden under Section 2255 to establish Johnson error if

the record and “relevant background legal environment” at the time

of sentencing indicate that he was likely sentenced under the

residual clause.

Pet. App. A5.

A prisoner may show, for example,

that courts had classified his offense as an ACCA predicate under

the residual clause, supporting an inference that the sentencing

court did the same.

He may also show that his offense could only

have been treated as a violent felony under the residual clause

because, under the law at the time, it would not have satisfied

one of the other clauses.

See, e.g., Sykes v. United States, 564

U.S. 1, 8 (2011) (analyzing Indiana felonious vehicle flight),

overruled by Johnson, 135 S. Ct. at 2563.

In any event, it is not arbitrary to require a prisoner to

satisfy the ordinary burden of proof when seeking collateral relief

under Johnson.

See, e.g., Dimott v. United States, 881 F.3d 232,

242 (1st Cir. 2018) (“Requiring habeas petitioners to establish

-- by a preponderance of the evidence –- that they were sentenced

pursuant to the residual clause does not lead to treating similarly

situated defendants differently.

Precisely the opposite:

it is

imposing a uniform rule.”), petition for cert. pending, No. 171251 (filed Mar. 8, 2018).

Johnson

claimants

“What would be arbitrary is to treat

differently

than

all

other

movants claiming a constitutional violation.”

[Section]

2255

Beeman v. United

States, 871 F.3d 1215, 1224 (11th Cir. 2017) (emphasis added).

Contrary to petitioner’s contention (Pet. 8-13), the

court of appeals’ decision does not conflict with decisions of any

other circuit.

would

Petitioner identifies no court of appeals that

necessarily

demonstrates

that

grant

relief

where,

here,

the

classification

the

prior

record

burglary

conviction was likely based on the enumerated offenses clause.

Petitioner’s claim of a circuit conflict relies principally

on the Fourth Circuit’s decision in United States v. Winston, 850

F.3d 677 (2017), which involved a second-or-successive motion

under Section 2255.

As explained, second-or-successive relief is

not available unless (inter alia) a prisoner establishes that his

claim “relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable.”

2255(h)(2).

28 U.S.C. 2244(b)(2)(A); see 28 U.S.C.

In Winston, the court of appeals stated that, in the

context of a Johnson claim, the phrase “relies on” requires only

a showing that the prisoner’s sentence “may have been predicated

on application of the now-void residual clause.”

850 F.3d at 682.

The court determined that the record of the sentencing in Winston

did not indicate “which clause of Section 924(e)(2)(B)” applied

and, thus, the prisoner could make a showing that his claim

“‘relied on,’ at least in part, the new rule of constitutional law

announced in Johnson.”

Petitioner’s

Ibid.

case,

Winston,

successive motion under Section 2255.

involves

second-or-

In petitioner’s case,

however, the court of appeals’ examination of the record and the

legal landscape at the time of petitioner’s sentencing revealed

that his sentence was appropriately classified as a violent felony

under the ACCA’s enumerated offenses clause.

See, e.g., Pet. App.

A9 (finding “no mention whatsoever of the residual clause in the

presentence report or any of the other district court pleadings or

transcripts” and that the record and “relevant background legal

environment” at the time of sentencing indicated “no need for

reliance on the residual clause”) (brackets and citation omitted).

Winston does not address such a situation, much less require that

a motion for postconviction relief under Johnson be granted in those

circumstances.

Moreover, Winston’s reasoning is based on since-

rejected dicta from an Eleventh Circuit case. Compare In re Chance,

831 F.3d 1335 (2016), with Beeman, 871 F.3d at 1221, 1228 n.3

(rejecting dicta in Chance); see also Dimott, 881 F.3d at 240 &

n.6, 242 (same). No reason exists to assume that the Fourth Circuit

would adhere to Winston’s reasoning if presented with a case, like

this one, where the record and applicable law indicate that the

residual clause was not a basis for the prisoner’s ACCA sentence.

Indeed,

another

allegedly

conflicting

decision

which

petitioner relies (Pet. 12) “came to a similar conclusion” as

Winston

the

approach

second-or-successive

motions

but

explicitly recognized that a prisoner cannot establish that his

claim “relies on” Johnson for purposes of filing such a motion if

the circumstances show that he was not in fact sentenced based on

the residual clause.

United States v. Geozos, 870 F.3d 890, 896

n.6 (9th Cir. 2017).

The court explained that “a claim does not

‘rely on’” Johnson if a court finds, using both “the record before

the sentencing court and the relevant background legal environment

at the time of sentencing, that the sentencing court’s ACCA

determination

did

not

rest

the

residual

clause.”

Ibid.

The Tenth Circuit itself had expressly adopted that reasoning in

United States v. Snyder, 871 F.3d 1122, 1128-1129 (2017), cert.

denied, No. 17-7157 (Apr. 30, 2018), on which the court below

relied, see Pet. A5-A6 (citing Snyder, 871 F.3d at 1129). Although

the

Ninth

Circuit

Geozos

determined

that

the

record

and

background legal environment in that case did not foreclose relief,

870 F.3d at 897, that judgment does not conflict with the court

of appeals’ factbound determination that relief was unwarranted

in this case.

Finally, contrary to petitioner’s contention (Pet. 10-12),

the Eleventh Circuit’s decision in Beeman is fully consistent with

the decision below.

The court there held that a prisoner is not

entitled to postconviction relief on a Johnson claim unless he can

“show that –- more likely than not –- it was use of the residual

clause that led to the sentencing court’s enhancement of his

sentence,” a question that the court treated as one of “historical

fact” to be resolved in light of the record and legal background

at the time of sentencing.

Beeman, 871 F.3d at 1222, 1224 n.5.

The court of appeals’ analysis in this case indicates a resolution

of that question of historical fact adverse to petitioner.

See

Pet. App. A5-A10.

Petitioner contends (Pet. 19-20) that, even if his ACCA

sentence depended on application of the enumerated offenses clause

rather than the residual clause, he would still be entitled to

postconviction relief because his Arkansas burglary conviction no

longer qualifies as a violent felony under the enumerated offenses

clause in light of Mathis v. United States, 136 S. Ct. 2243 (2016).

Mathis holds that a statute is divisible, and thus subject to

analysis under the modified categorical approach described in

Shepard v. United States, 544 U.S. 13 (2005), if it defines

multiple

offenses

alternative

means

136 S. Ct. at 2256.

with

different

committing

elements

single

opposed

offense.

Mathis,

Petitioner’s contention does not warrant review.

First, his

Mathis claim is not cognizable on a second-or-successive motion

under Section 2255.

As explained, second-or-successive relief

would only be available in the context of this case for claims

arising under a “new rule of constitutional law, made retroactive

cases

collateral

28 U.S.C. 2244(b)(2)(A).

review.”

U.S.C.

2255(h)(2);

see

Mathis concerns the proper application

of the ACCA’s statutory provisions, not a rule of constitutional

law.

See, e.g., Potter v. United States, 887 F.3d 785, 788 (6th

Cir. 2018) (explaining that Mathis involved only a “rule of

statutory law” and thus “does not open the door for a second

collateral attack”).

Mathis also did not announce a “new” rule;

rather, the Court explained that the distinction between elements

and

means

which

“straightforward”

precedent.

petitioner

application

relies

was

derived

from

“more

than

years”

136 S. Ct. at 2257; see id. at 2247, 2251.

As the

courts of appeals have uniformly held, “Mathis is a clarification

of existing rules rather than a new rule itself,” Arazola-Galea v.

United States, 876 F.3d 1257, 1259-1260 (9th Cir. 2017) (citing

cases), and thus it does not provide a basis for second-orsuccessive relief under Section 2255.

Second,

application

and

relatedly,

the

enumerated

petitioner’s

offenses

challenge

clause

the

untimely.

Petitioner’s claim would only be timely if it was filed within a

year

the

date

which

this

Court

recognized

retroactively applicable right to relief.

“new[],”

28 U.S.C. 2255(f)(3).

As explained, Mathis did not announce a new rule and thus it did

not start a new limitations period under Section 2255(f)(3).

Third, the version of the Arkansas burglary statute under

which petitioner was convicted may be divisible under Mathis.

Mathis, this Court instructed lower courts to consult three sources

in determining whether a statute lists alternative elements (which

would

make

indivisible):

state

means

(which

would

make

(1) the statutory text, (2) “authoritative sources

law,”

conviction.

divisible)

and

(3)

the

record

136 S. Ct. at 2256-2257.

the

defendant’s

prior

At the time of petitioner’s

offense, Arkansas prohibited burglary of an “occupiable structure

of another person,” Ark. Code Ann. § 5-39-201(a) (West 1987), which

the statute defined, in separate statutory subsections, to include

any “vehicle, building or other structure” (A) where a “person

lives or carries on a business or other calling”; (B) where “people

assemble

for

purposes

business,

government,

education,

religion, entertainment, or public transportation”; or (C) that

“is customarily used for overnight accommodation of a person,” id.

§ 5-39-101(1).1

Arkansas’s current burglary statute distinguishes

burglary of a “commercial occupiable structure,” Ark. Code Ann.

§ 5-39-201(b)(1) (2013), from burglary of a “residential occupiable

structure,” id. § 5-39-201(a)(1).

This Court has granted

certiorari in United States v. Sims, No. 17-766 (Apr. 23, 2018),

As the court of appeals observed, the records of petitioner’s

conviction indicate that he was convicted of the distinct offense

of burglarizing “a house.”

Pet. App. A8; see PSR ¶ 31.

That fact

suggests that the type of structure may have been treated as an

element of a divisible offense under the version of Arkansas’s

burglary statute at issue in this case.

See Mathis, 136 S. Ct. at

2256-2257 & n.7 (explaining that “record[s] of a prior conviction”

that “referenc[e] one alternative term to the exclusion of all

others” could indicate “that the statute contains a list of

elements”).

Regardless, the need for petitioner to prevail on

both the question presented and a separate question about the

divisibility of a since-repealed version of Arkansas’s burglary

statute (which is fundamentally a question of state law) in order

to obtain relief demonstrates that this case is far from an “ideal

vehicle” for addressing the question presented.

Pet. 19.2

to address whether the statute’s definition of a “residential

occupiable structure,” which includes burglary of a “vehicle” in

which “any person lives” or that is “customarily used for overnight

accommodation of a person,” Ark. Code Ann. § 5-39-101(4)(A)

(2013), is broader than generic burglary. Sims does not directly

concern the Arkansas offense of commercial burglary.

The possibility that petitioner’s Arkansas burglary

conviction would qualify as a violent felony under current law

similarly counsels against reviewing petitioner’s claim (Pet. 2123) that the court of appeals’ decision “creates a separate and

independent due process violation” because it causes a prisoner

who does not qualify for the ACCA’s mandatory minimum sentence to

serve “more time than the law allows.” Moreover, the court denied

a COA on that claim, observing that petitioner did not appear to

have preserved it in the district court and, in any event, the

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

JENNY C. ELLICKSON

Attorney

JUNE 2018

claim was not based on a retroactively applicable decision of this

Court announcing a new rule of constitutional law, as would be

necessary to raise the issue in a second-or-successive motion under

Section 2255.

Pet. App. A11-A12.

Review of petitioner’s due

process claim is therefore not warranted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.