DAVIDSON v. UNITED STATES (2018)

MEMORANDUM ***

Matthew Davidson appeals the district court's denial of his second petition for habeas relief under 28 U.S.C. § 2255. Because the parties are familiar with the facts, we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

As a threshold matter, we must decide whether Davidson's petition is timely. That is, we must decide whether it relies on the new rule of constitutional law announced in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which was made retroactive to cases on collateral review by Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). See 28 U.S.C. § 2255(h)(2). In this endeavor we are guided by the framework set forth in United States v. Geozos, 870 F.3d 890, 894-897 (9th Cir. 2017), which was decided after the district court issued the order giving rise to this appeal. Under Geozos, we look to the sentencing record; if the record makes clear that the district court did not rely on the residual clause in determining that a prior offense qualified as a predicate offense under the Armed Career Criminal Act, then the petition does not rely on Johnson. 870 F.3d at 895.

Here, the record is clear that the district court relied on the enumerated offense clause of 18 U.S.C. § 924(e)(2)(B)(ii) to find that Davidson's prior Washington state convictions for second-degree burglary qualified as predicate “violent felonies” for purposes of the Armed Career Criminal Act. At sentencing, the district court specifically referenced our decision in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), which was an enumerated offenses clause case, and neither Davidson nor the Government advanced residual clause arguments before or during sentencing.

Because the district court did not rely on the residual clause, Davidson's claim does not rely on the rule announced in Johnson. Geozos, 870 F.3d at 896. The § 2255 petition does not, therefore, meet the requirements for a second or successive motion under that section. See 28 U.S.C. § 2255(h). Moreover, it is time-barred as it does not otherwise meet the one-year statute of limitations set forth in that section. See 28 U.S.C. § 2255(f).

AFFIRMED.