See Lopez, No. 7:04-cr-10 (M.D. Ga.), ECF Nos. 39, 42. SeeIn re Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017) (explaining that under § 2255(h), "[a] second or successive collateral attack is permissible only if the court of appeals certifies that it rests on (1) newly discovered evidence or (2) 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable'"). This leaves the third requirement: Did the Supreme Court make a retroactive change in statutory interpretation that made the previous conviction not a predicate offense for a career-offender enhancement?
It thus does not open the door for a second collateral attack. In re Conzelmann , 872 F.3d 375, 376–77 (6th Cir. 2017).Nor does Johnson open the door for prisoners to file successive collateral attacks any time the sentencing court may have relied on the residual clause.
A second or successive collateral attack under 28 U.S.C. § 2255 may only be pursued if the circuit court authorizes a district court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); see also In re Conzelmann, 872 F.3d 375, 376 (6th Cir. 2017); Carlson v. Pitcher, 137 F.3d 416, 419 (6th Cir. 1997). However, the Court has reopened Mr. Leatherwood's first § 2255 motion herein due to his unresolved, yet timely-filed motion to alter the Court's previous judgment.
Instead, he contends that Anderson's claim for relief under Mathis does not satisfy the second element of the Hill test - that asks whether the rule in Mathis was available when Anderson filed his Section 2255 petition - because Mathis is an "old rule." (See Respondent's Resp. Br., ECF #5 at Pg. ID 28-29, quoting In re Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017).) An "old rule" is one that is one that was "dictated by precedent," In re Conzelmann, 872 F.3d at 376, and Respondent appears to argue that since the rule in Mathis was compelled by precedent, the rule was necessarily available to Anderson - and could have been invoked by Anderson in a Section 2255 petition - before the Supreme Court decided Mathis.
The Sixth Circuit has held, however, that the Supreme Court's decision in Mathis does not announce a new rule of law. In re Conzelman, 872 F.3d 375, 376-77 (6th Cir. 2017); see also Potter v. United States, 887 F.3d 785, 788 (2018) ("Mathis involved an old rule of statutory law, not a new rule of constitutional law. It thus does not open the door for a second collateral attack.").
Under Title 28, Section 2255(f)(3) of the United States Code, however, Petitioner's motion is considered timely only if Mathis created a newly recognized right that the Supreme Court made retroactively applicable to cases on collateral review. In In re Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017), the Sixth Circuit held that Mathis did not announce a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. Accordingly, Petitioner's motion is not timely and is barred by the one-year statute of limitations applicable to petitions for collateral relief under Title 28, Section 2255 of the United States Code.
By the time the Supreme Court invalidated the Sixth Circuit's prior approaches to interpreting ACCA's enumerated offenses clause, Chaney had already exhausted his first § 2255 motion, and his statutory actual innocence claim could not have met the requirements for permission to file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h); In re Conzelmann, 872 F.3d 375, 377 (6th Cir. 2017); Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015); Stephens, 464 F.3d at 898.
See id . at 2257 ("Our precedents make this a straightforward case."); In re Conzelmann , 872 F.3d 375, 376 (6th Cir. 2017) ("The Court's holding in Mathis was dictated by prior precedent (indeed two decades worth)."). Nor did Wright need Mathis to clear a path through erroneous Fourth Circuit precedent.
Other circuits have held that Mathis , which the Supreme Court characterized as dictated by Taylor , does not satisfy this test. See, e.g. , Washington v. United States , 868 F.3d 64, 65–66 (2d Cir. 2017) ; Arazola-Gates v. United States , 876 F.3d 1257, 1259 (9th Cir. 2017) ; In re Conzelmann , 872 F.3d 375, 376–77 (6th Cir. 2017) ; United States v. Taylor , 672 F. App'x 860, 863 (10th Cir. 2016). Thus, if the Davenport test uses "new" in the standard habeas sense that it has in § 2255(h)(2) and § 2255(f)(3), Chazen's claim presumably cannot succeed.
In re Coley , 871 F.3d 455 (6th Cir. 2017) (adversarial briefing) In re Conzelmann , 872 F.3d 375 (6th Cir. 2017) In re Campbell , 874 F.3d 454 (6th Cir. 2017) (adversarial briefing)