FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LAMELL EZELL, No. 14-71696
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Submitted December 11, 2014*
Seattle, Washington
Filed January 23, 2015
Before: M. Margaret McKeown, Richard C. Tallman, and
John B. Owens, Circuit Judges.
Opinion by Judge Tallman
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 EZELL V. UNITED STATES
SUMMARY**
Habeas Corpus
The panel denied a motion for certification to file a
second or successive 28 U.S.C. § 2255 motion to set aside a
sentence imposed under the Armed Career Criminal Act.
The panel held that when a motion pursuant to 28 U.S.C.
§ 2255(h) to file a second or successive petition presents a
complex issue, this court may exceed the thirty-day time limit
set forth in 28 U.S.C. § 2244(b)(3)(D) for granting or denying
the authorization.
The panel held that the Supreme Court did not announce
a new rule of constitutional law in Descamps v. United States,
133 S. Ct. 2276 (2013), but rather clarified – as a matter of
statutory interpretation – application of the ACCA in light of
existing precedent.
COUNSEL
Howard Lee Phillips, Esq., Phillips Law LLC, Seattle,
Washington; Jonathan D. Libby, Esq., Deputy Federal Public
Defender, Los Angeles, California, for Petitioner.
Carl Andrew Colasurdo, Assistant United States Attorney,
Seattle, Washington; Michael Symington Morgan, Assistant
United States Attorney, Seattle, Washington, for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EZELL V. UNITED STATES 3
OPINION
TALLMAN, Circuit Judge:
Terry L. Ezell asks us to certify his filing of a second or
successive 28 U.S.C. § 2255 petition in the Western District
of Washington, where he was convicted in 2008 of being a
felon in possession of a firearm. The district court sentenced
Ezell under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). Ezell argues that his second or
successive petition is warranted because in Descamps v.
United States, 133 S. Ct. 2276 (2013), the Supreme Court
announced 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), and under
which the district court could abrogate his ACCA sentence.
We disagree. We hold that the Supreme Court did not
announce a new rule of constitutional law in Descamps.
Rather, it clarified—as a matter of statutory interpretation—
application of the ACCA in light of existing precedent. For
that reason, we deny Ezell’s motion for certification to file
another habeas corpus petition.
I
Terry Ezell was convicted in 2008 of being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1), and for
possession with intent to distribute cocaine, see 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii). Am. Mem. & Decision 11–12,
Case No. CR05-273RSM, ECF No. 113 (W.D. Wash. Mar.
26, 2008). For the felon in possession charge, the district
court sentenced Ezell to 262 months’ imprisonment under the
4 EZELL V. UNITED STATES
ACCA.1 See 18 U.S.C. § 924(e)(1) (“In the case of a person
who violates section 922(g) of this title and has three previous
convictions . . . for a violent felony . . . , such person shall be
fined under this title and imprisoned not less than fifteen
years . . . .”). It based this enhancement, in part, on Ezell’s
two prior Washington state burglary convictions. Because
Washington’s burglary statute is broader than the generic
federal definition, the district court—in keeping with then-
Ninth Circuit precedent—applied the modified categorical
approach. After considering underlying charging documents,
the district court determined that both burglaries qualified as
violent felonies and could therefore serve as predicates to
impose § 924(e)’s mandatory minimum.
Ezell exhausted his direct appeal in 2010. See United
States v. Ezell, 337 F. App’x 623, 624 (9th Cir. 2009)
(affirming district court). He filed an unsuccessful § 2255
petition later that year. See Ezell v. United States, Nos. C10-
467RSM, CR05-273RSM, 2011 WL 1900155 (W.D. Wash.
May 18, 2011). Two years later, he asked us for
authorization to file a second or successive § 2255 petition.
Finding that Ezell’s motion did not satisfy § 2255(h), we
summarily denied it. Ezell v. United States, No. 12-73464
(9th Cir. Jan. 25, 2013) (order denying motion).
The Supreme Court decided Descamps on June 20, 2013.
The Court held that the modified categorical approach applies
only to statutes that are divisible. Descamps, 133 S. Ct. at
2282–83 (abrogating United States v. Aguila-Montes de Oca,
655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam)). Ezell
1
The district court also sentenced Ezell to a concurrent 262-month
sentence for the drug possession charge under the career offender
guideline, U.S.S.G. § 4B1.1.
EZELL V. UNITED STATES 5
filed the § 2255(h)(2) motion currently before us less than
one year later. He argues that we should permit him to file a
second or successive § 2255 petition in the district court
because Descamps is a “new rule of constitutional law” under
which the court could abrogate his 262-month sentence.
Section 2255(h) gives us original jurisdiction over the
motion.
II
Before considering whether Ezell’s petition presents “a
new rule of constitutional law,” we address whether a
statutory time bar prevents us from ruling on Ezell’s motion.
Second or successive § 2255 motions are subject to the
gatekeeping procedures “provided in section 2244.” 28
U.S.C. § 2255(h). Section 2244 states that “[t]he court of
appeals shall grant or deny the authorization to file a second
or successive application not later than 30 days after the filing
of the motion.” 28 U.S.C. § 2244(b)(3)(D). More than thirty
days have passed since Ezell filed his motion, so whether
§ 2244(b)(3)(D) is mandatory or hortatory is a key threshold
issue. It is also an issue of first impression in the Ninth
Circuit.2
The majority of our sister circuits to have considered
§ 2244(b)(3)(D)’s time limit have held that it is hortatory, not
2
We have cited § 2244(b)(3)(D) only once, and in our discussion we
did not explicitly consider whether the thirty-day time frame is mandatory.
See Nevius v. McDaniel, 104 F.3d 1120, 1121–22 (9th Cir. 1996). And
although we have not given the issue express consideration, we have
repeatedly ruled on § 2244(b)(3) motions well after the expiration of the
thirty-day period. See, e.g., Gulbrandson v. Ryan, 738 F.3d 976, 996 (9th
Cir. 2013) (ruling on the § 2244(b)(3) motion more than three years after
it was filed).
6 EZELL V. UNITED STATES
mandatory. See Word v. Lord, 648 F.3d 129, 129 n.1 (2d Cir.
2011) (per curiam); Ochoa v. Sirmons, 485 F.3d 538, 539 n.1
(10th Cir. 2007) (per curiam); Gray-Bey v. United States, 201
F.3d 866, 867–70 (7th Cir. 2000); Rodriguez v.
Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 272–73
(1st Cir. 1998), abrogated on other grounds as recognized in
Simpson v. Matesanz, 175 F.3d 200 (1st Cir. 1999); In re
Siggers, 132 F.3d 333, 336 (6th Cir. 1997); In re Vial, 115
F.3d 1192, 1194 n.3 (4th Cir. 1997) (en banc); cf. Gray-Bey,
201 F.3d at 871 (Easterbrook, J., dissenting) (arguing that the
thirty-day limit is mandatory and faulting the majority for
ignoring the limit).
But some of our sister circuits have cited this provision as
mandatory. See, e.g., In re Henry, 757 F.3d 1151, 1157 n.9
(11th Cir. 2014) (“[T]his Court necessarily must apply
§ 2244(b)(2) under a tight time limit in all cases, since the
statute expressly requires us to resolve this application within
30 days, no matter the case.”).
We agree with the majority of our sister circuits and hold
that when a § 2255(h) motion presents a complex issue, we
may exceed § 2244(b)(3)(D)’s thirty-day time limit. As the
Sixth Circuit noted in In re Siggers, a statutory time period
providing a directive to an agency or public official is not
ordinarily mandatory “unless it both expressly requires [the]
agency or public official to act within a particular time period
and specifies a consequence for failure to comply with the
provision.” 132 F.3d at 336 (internal quotation marks
omitted); accord 3 Sutherland Statutory Construction § 57:19
(7th ed. 2013) (“[I]f a provision of a statute states a time for
performance of an official duty, without any language
denying performance after a specified time, it is directory.”).
And because Congress “has failed to specify a consequence
EZELL V. UNITED STATES 7
for noncompliance with the thirty-day time limit imposed by
28 U.S.C. § 2244(b)(3)(D),” failure to comply with that time
limit “does not deprive this Court of the power to grant or
deny” a motion to file a second or successive petition. In re
Siggers, 132 F.3d at 336.
Because the thirty-day statutory time limit is hortatory,
we reach the merits of Ezell’s motion.
III
A
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) “imposes significant limitations on the power of
federal courts to award relief to prisoners who file ‘second or
successive’ habeas petitions.” United States v. Lopez, 577
F.3d 1053, 1059 (9th Cir. 2009). Under AEDPA, a federal
prisoner may not file a second or successive § 2255 petition
unless he or she makes a prima facie showing to the
appropriate court of appeals that the petition is based on: (1)
“a new rule,” (2) “of constitutional law,” (3) “made
retroactive to cases on collateral review by the Supreme
Court,” (4) “that was previously unavailable.” 28 U.S.C.
§ 2255(h)(2);3 Tyler v. Cain, 533 U.S. 656, 662, 121 S. Ct.
3
The appeals court may also permit a prisoner to file a second or
successive § 2255 petition if it contains “newly discovered evidence that,
if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense.” 28 U.S.C.
§ 2255(h)(1). We do not consider that section here. Nor do we consider
or foreclose the possibility that someone who was sentenced under an
erroneous interpretation of the ACCA might obtain relief via 28 U.S.C.
§§ 2241 and 2255(e). See Gilbert v. United States, 640 F.3d 1293,
8 EZELL V. UNITED STATES
2478, 2482 (2001). Section 2255(h)(2) creates a
jurisdictional bar to the petitioner’s claims: “If the petitioner
does not first obtain our authorization, the district court lacks
jurisdiction to consider the second or successive application.”
Lopez, 577 F.3d at 1061.
Ezell’s motion fails on the first two prongs of § 2255(h).
The Supreme Court in Descamps did not announce a new
rule, and even if it did, Descamps is not a constitutional case.4
We therefore deny Ezell’s motion.
B
A new rule is a rule that “breaks new ground,” “imposes
a new obligation on the States or the Federal Government,”
or is otherwise “not dictated by precedent existing at the time
the defendant’s conviction became final.” Teague v. Lane,
489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989) (plurality
opinion). A case also announces a new rule if it “expressly
overrules a prior decision.” Jones v. Ryan, 733 F.3d 825, 843
(9th Cir. 2013) (internal quotation marks omitted), cert.
denied, 134 S. Ct. 503.
1305–15 (11th Cir. 2011) (en banc) (discussing the potential availability
of such writs); see also Marrero v. Ives, 682 F.3d 1190, 1194–95 (9th Cir.
2012) (declining to address whether a petitioner may obtain relief via
§§ 2241 and 2255(e) if “he received a sentence for which he was
statutorily ineligible”). But any further attempts by Ezell to challenge his
ACCA sentence would be futile, as he was also sentenced to 262 months’
imprisonment for his drug conviction, which is unrelated to the validity of
his ACCA sentence.
4
Because Ezell’s motion fails to meet § 2255(h)’s first two prongs, we
do not consider whether Descamps announced a rule “made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable.” 18 U.S.C. § 2255(h)(2).
EZELL V. UNITED STATES 9
The Supreme Court did not announce a new rule in
Descamps. Descamps did not impose a new obligation nor
did it break new ground. Rather, as both the Supreme Court
and we have recognized, Descamps clarified application of
the modified categorical approach in light of existing
precedent. Descamps, 133 S. Ct. at 2283 (“Our caselaw
explaining the categorical approach and its ‘modified’
counterpart all but resolves this case.”); United States v.
Quintero-Junco, 754 F.3d 746, 751 (9th Cir. 2014) (“As the
Supreme Court recently clarified in Descamps, courts may
employ the modified categorical approach only when the
statute of conviction is ‘divisible . . . .’” (emphasis added));
accord United States v. Davis, 751 F.3d 769, 775 (6th Cir.
2014) (noting that “[t]he Supreme Court in Descamps
explained that it was not announcing a new rule, but was
simply reaffirming” its prior interpretation of the ACCA).
But even if the Supreme Court did announce a new rule
in Descamps, that rule is not constitutional. Descamps is a
statutory interpretation case: It clarifies when certain crimes
qualify as violent felonies under the ACCA, a congressional
enactment. See Descamps, 133 S. Ct. at 2281 (framing the
issue as one arising under the ACCA); Shepard v. United
States, 544 U.S. 13, 16–17, 125 S. Ct. 1254, 1257 (2005)
(clarifying application of the modified categorical approach
under the ACCA and framing the issue as one of statutory
interpretation).
Although Descamps discusses the Sixth Amendment, the
discussion does not make the decision “constitutional” within
the meaning of 28 U.S.C. § 2255(h)(2). Descamps explains
that the modified categorical approach applies only to
divisible statutes in part because a broader application may
raise Sixth Amendment issues under Apprendi v. New Jersey.
10 EZELL V. UNITED STATES
Descamps, 133 S. Ct. at 2288 (citing Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000)). But
this discussion does not make Descamps “constitutional”:
“Under the statute, it is the ‘new rule’ itself that must be one
‘of constitutional law,’ not the effect of failing to apply that
rule to successive petitions.” In re Dorsainvil, 119 F.3d 245,
248 (3d Cir. 1997); see also United States v. Reyes, 358 F.3d
1095, 1097 (9th Cir. 2004) (per curiam) (holding that
Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707
(1999), is a statutory interpretation case even though it
discusses constitutional issues).
The Court’s decision in Shepard confirms that Taylor v.
United States, 495 U.S. 575, 110 S. Ct. 2143 (1990), and its
progeny—including Descamps—are statutory interpretation
cases. A majority of the Justices in Shepard concluded that
a broad application of the modified categorical approach may
implicate the Sixth Amendment. Shepard, 544 U.S. at 24
(plurality opinion) (noting that it would raise Sixth
Amendment concerns to permit sentencing courts to examine
documents outside of charging papers, plea agreements, or
other similar documents); id. at 28 (Thomas, J., concurring)
(“[T]he factfinding procedure the Court rejects gives rise to
constitutional error, not doubt . . . .”). Nevertheless, circuit
courts to consider the issue consistently hold that Shepard is
a statutory interpretation case. See United States v.
Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005) (“Shepard
was not a constitutional decision. Shepard decided an issue
of statutory interpretation.”); see also United States v.
Christensen, 456 F.3d 1205, 1207 (10th Cir. 2006) (same).
Shepard itself confirms this: “We are, after all, dealing with
an issue of statutory interpretation.” 544 U.S. at 23. That
conclusion applies with equal force to Descamps,
notwithstanding the Court’s Sixth Amendment discussion.
EZELL V. UNITED STATES 11
IV
In sum, Descamps did not announce a new rule, and even
if it did, that rule is not constitutional. Ezell has therefore
failed to make a prima facie showing that he meets
§ 2255(h)(2)’s first two prongs. His § 2255(h)(2) motion is
thus
DENIED.