FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 10, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-5147
v.
(D.C. Nos. 4:16-CV-00276-CVE-TLW
and 4:00-CR-00155-CVE-1)
WAYNE LEE MARSHALL,
(N.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
Wayne Marshall was convicted of possession of a firearm after felony
conviction in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), for having
three previous convictions for a violent felony. Specifically, Mr. Marshall had
four prior convictions for second-degree burglary. After the Supreme Court
invalidated the ACCA’s “residual clause” in Johnson v. United States, 135 S. Ct.
2551 (2015), and made Johnson retroactively applicable to cases on collateral
review in Welch v. United States, 136 S. Ct. 1257 (2016), Mr. Marshall filed a pro
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
se § 2255 petition for habeas relief, arguing that his sentence enhancement is now
unconstitutional under Johnson. The district court denied his request for relief.
Mr. Marshall now seeks a certificate of appealability to contest the district
court’s rejection of his petition. In order to obtain a COA Mr. Marshall must
make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), which requires him to establish “that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further,”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
This he has not done. Before the district court, Mr. Marshall suggested that
his sentence runs afoul of Johnson. But as the district court explained this is not
the case. In Johnson the Supreme Court declared only that the “residual clause”
of the ACCA is unconstitutionally void for vagueness. Mr. Marshall was not
sentenced under the residual clause. Rather, his sentence was enhanced under a
separate provision of the ACCA governing burglaries. We see no grounds on
which reasonable jurists might debate the propriety of the district court’s analysis
on this score. To be sure, in response to the district court’s ruling on this score,
Mr. Marshall filed additional papers seeking to suggest his state law burglary
convictions do not qualify for enhancement under the ACCA’s distinct provision
governing burglaries. But the district court ruled that this amounted to an
unauthorized second § 2255 petition. See United States v. Pedraza, 466 F.3d 932,
-2-
933-34 (10th Cir. 2006). And Mr. Marshall does not offer any argument why this
conclusion might be debatable; nor do we discern any of our own.
The request for a COA is denied and this matter is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-3-