Case: 18-60039 Document: 00515555692 Page: 1 Date Filed: 09/08/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2020
No. 18-60039
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ray Anthony Chaney, also known as Ray Anthony Bradley,
also known as Ray Chaney, also known as Ray A. Chaney, also known
as Ray N. Bradley,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 1:16-CV-224
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
In 2007, Ray Anthony Chaney was convicted of three federal firearms
offenses, including being a felon in possession of a firearm as proscribed by
18 U.S.C. § 922(g)(1). The indictment alleged that he was punishable under
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-60039 Document: 00515555692 Page: 2 Date Filed: 09/08/2020
No. 18-60039
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which
mandates an enhanced imprisonment range of 15 years to life if a § 922(g)
defendant has three prior convictions for a violent felony, a serious drug
offense, or both. It listed several prior offenses, of which Chaney’s
Mississippi convictions in 1999 for one count of “burglary,” in 1995 for one
count of “burglary of a non-dwelling,” and in 1981 for five counts of
“burglary and larceny of a dwelling” potentially qualified as violent felonies
that would support the ACCA enhancement. The sentencing court applied
the ACCA enhancement and imposed a 235-month term of imprisonment for
the § 922(g) offense. We affirmed on direct appeal. United States v. Chaney,
299 F. App’x 390, 391-95 (5th Cir. 2008). Chaney filed an unsuccessful 28
U.S.C. § 2255 motion. We denied a certificate of appealability (COA).
After the Supreme Court held in Johnson v. United States, 576 U.S.
591, 593-97 (2015), that the residual clause in the ACCA’s definition of a
violent felony was unconstitutionally vague, we granted Chaney tentative
authorization to file a second or successive § 2255 motion to argue that the
burglary convictions used to support his ACCA enhancement did not qualify
as violent felonies. In re Chaney, No. 16-60349, 1-2 (5th Cir. July 18, 2016)
(unpublished); see also § 2255(h)(2); Welch v. United States, 136 S. Ct. 1257,
1265 (2016) (making Johnson retroactively applicable to cases on collateral
review). The district court dismissed Chaney’s successive § 2255 motion
pursuant to 28 U.S.C. § 2244(b)(4) after determining that Chaney’s claim
did not rely on Johnson and did not meet the filing requirements in
§ 2255(h)(2). We granted Chaney a COA. United States v. Chaney, No. 18-
60039, 1-3 (5th Cir. January 24, 2019) (unpublished).
A movant who seeks consideration of a successive § 2255 motion by a
district court must obtain authorization from this court to file the motion by
making a “prima facie showing” that his proposed claim relies on (1) “a new
rule of constitutional law, made retroactive to cases on collateral review by
2
Case: 18-60039 Document: 00515555692 Page: 3 Date Filed: 09/08/2020
No. 18-60039
the Supreme Court, that was previously unavailable,” or (2) newly
discovered, clear and convincing evidence that, but for the error, no
reasonable factfinder would have found the defendant guilty. §§ 2244(b)(3),
2255(h). When, as in this case, a movant obtains such authorization, he must
then actually prove at the district court level that his claim satisfies one of
those requirements. United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018);
§ 2244(b)(4). If he cannot make that showing, the district court lacks
jurisdiction and must dismiss the motion. Wiese, 896 F.3d at 723-24. When
considering challenges to district court decisions under § 2255, this court
reviews findings of fact for clear error and questions of law, including
jurisdictional determinations under § 2244(b)(4), de novo. Id. at 723 n.3;
Reyes-Requena v. United States, 243 F.3d 893, 900 (5th Cir. 2001).
A prisoner making a Johnson claim must prove that “it was more likely
than not that he was sentenced under the residual clause.” United States v.
Clay, 921 F.3d 550, 559 (5th Cir. 2019), cert. denied, 140 S. Ct. 866 (2020). 1
To determine whether a sentencing court categorized a conviction as a crime
of violence based on the residual clause, we will consider the sentencing
record for direct evidence of a sentence, the PSR, other relevant materials
before the sentencing court, and the legal landscape at the time of sentencing.
Wiese, 896 F.3d at 724-25.
It is not clear from the legal landscape and sentencing record whether
the district court relied on the residual clause to determine that Chaney’s
convictions were for violent felonies. Thus, Chaney has failed to carry his
1
Chaney contends that a showing that the sentencing court may have invoked the
residual clause should be sufficient to prove that a successive petition relies on Johnson.
However, he acknowledges that his argument is foreclosed by this court’s decision in Clay.
See Clay, 921 F.3d at 559. He raises the issue solely to preserve it for further review.
3
Case: 18-60039 Document: 00515555692 Page: 4 Date Filed: 09/08/2020
No. 18-60039
burden of showing that his successive § 2255 petition relies on Johnson. See
Clay, 921 F.3d at 558.
Because Chaney has not shown that the sentencing court more likely
than not relied on the residual clause in determining that his five convictions
of “burglary and larceny of a dwelling” were for violent felonies for purposes
of the ACCA, we need not consider whether the sentencing court
unconstitutionally relied on the residual clause in determining that his
convictions of “burglary of a non-dwelling” and “burglary” were violent
felonies. 2
The district court’s judgment dismissing Chaney’s successive § 2255
motion for lack of jurisdiction is AFFIRMED.
2
Chaney contends that his five “burglary and larceny of a dwelling” convictions,
even if for violent felonies, should count only as a single ACCA predicate offense.
However, we lack jurisdiction to consider that argument in a successive § 2255 motion.
Johnson has no bearing on whether those convictions constituted a single ACCA predicate
offense and the claim does not otherwise meet the requirements in § 2255(h). See Weise,
896 F.3d at 725-26.
4