Case: 18-30712 Document: 00515651099 Page: 1 Date Filed: 11/24/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 24, 2020
No. 18-30712 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuel David Hernandez, also known as Emanuel David, also
known as David Manuel, also known as Chino,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:16-CV-1160
USDC No. 6:97-CR-60039-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Manuel David Hernandez, federal prisoner # 09766-035, was
convicted by a jury of three counts of bank robbery under 18 U.S.C. § 2113(a)
and (d), three counts of using a firearm during a crime of violence under 18
*
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opinion should not be published and is not precedent except under the limited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.
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No. 18-30712
U.S.C. § 924(c), and three counts of being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1), all arising out of three bank robberies committed
between April and August of 1997 in Louisiana. United States v. Hernandez,
No. 98-30925, 2000 WL 122444, at *1 (5th Cir. 2000) (unpublished). The
Government sought an enhanced sentence under the Armed Career Criminal
Act (ACCA), § 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 identified Hernandez’s 1990 Illinois
convictions of 21 counts of residential burglary as requisite predicate
convictions. In August of 1998, Hernandez was sentenced to a total of 867
months of imprisonment. His convictions and sentences were affirmed on
direct appeal. Hernandez, 2000 WL 122444, at *2.
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 Hernandez tentative
authorization to file a second or successive 28 U.S.C. § 2255 motion to argue
that the burglary convictions used to support his ACCA enhancement did
not qualify as violent felonies. In re Hernandez, No. 16-30789, at 1-2 (5th Cir.
Aug. 12, 2016) (unpublished); see also § 2255(h)(2); Welch v. United States,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 Hernandez’s successive
§ 2255 motion pursuant to 28 U.S.C. § 2244(b)(4) after determining that
Hernandez’s claim did not rely on Johnson and did not meet the filing
requirements in § 2255(h)(2). We granted Hernandez a COA. United States
v. Hernandez, No. 18-30712, at 2-3 (5th Cir. July 15, 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
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No. 18-30712
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 violent
felony based on the residual clause, we will consider the sentencing record
for direct evidence of a sentence, the presentence report, 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 Hernandez’s
burglary conviction was for a violent felony. See United States v. King, 62 F.3d
891, 896 (7th Cir. 1995) (concluding that Illinois residential burglary offense
1
Hernandez contends that a showing that the sentencing court may have invoked
the residual clause should be sufficient to prove that a successive motion relies on Johnson
under this court’s decision in United States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017).
That argument is foreclosed by this court’s decision in Clay, 921 F.3d at 559.
3
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No. 18-30712
qualified as generic and constituted an enumerated offense). Thus,
Hernandez has failed to carry his burden of showing that his successive
§ 2255 petition relies on Johnson. See Clay, 921 F.3d at 558.
The district court’s judgment dismissing Hernandez’s successive
§ 2255 motion for lack of jurisdiction is AFFIRMED. Hernandez’s motion
to relieve the Federal Public Defender and for appointment of substitute
counsel is DENIED.
4
United States v. Manuel Hernandez
Combined Opinion