UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIE BYRON JONES, SR., No. 20-71862 Petitioner,

v. OPINION

UNITED STATES OF AMERICA, Respondent.

Application to File Second or Successive Motion Under 28 U.S.C. § 2255

Argued and Submitted January 10, 2022 Pasadena, California

Filed May 11, 2022

Before: J. Clifford Wallace, Danny J. Boggs, * and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Boggs; Dissent by Judge Wallace

* The Honorable Danny J. Boggs, Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 2 JONES V. UNITED STATES

SUMMARY **

28 U.S.C. § 2255

The panel denied federal prisoner Willie Byron Jones, Sr.’s application for leave to file a second or successive 28 U.S.C. § 2255 motion challenging his conviction and sentence for use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).

In his first § 2255 motion, which the district court denied, Jones argued that his § 924(c)(1)(A) conviction and sentence were invalid under United States v. Davis, 139 S. Ct. 2319 (2019). In the second or successive § 2255 motion he later sought to file, he again raised a claim that his § 924(c)(1) conviction and sentence are unlawful under Davis; and he added a claim that under Borden v. United States, 141 S. Ct. 1817 (2021), his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, cannot serve as a predicate crime of violence for his § 924(c) conviction, because a violation of § 113(a)(6) can be committed recklessly.

The panel held that 28 U.S.C. § 2244(b)(1)—which provides that a claim presented in a second or successive § 2254 application that was presented in a prior application shall be dismissed—sets out a jurisdictional rule rather than a claim-processing rule, but does not apply to federal prisoners’ motions under § 2255.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. JONES V. UNITED STATES 3

The panel therefore turned to whether Jones satisfied the requirements set forth in 28 U.S.C. § 2255(h) to bring a second or successive motion.

The panel held that Jones did not make the necessary prima facie showing under 28 U.S.C. § 2255(h)(2) with respect to his Davis claim because that claim is not “previously unavailable,” where Jones presented that claim to the district court in his first § 2255 motion, and the district court—though it erroneously characterized the predicate offense—held on the merits that Jones was not entitled to relief, and he did not appeal that decision.

The panel held that Jones also failed to make a prima facie showing under § 2255(h)(2) with respect to his Borden claim. Borden held that the Armed Career Criminal Act’s definition of “violent felony” in its elements clause, 18 U.S.C. § 924(e)(2)(B)(i), did not include offenses committed commit recklessly. The ACCA’s elements clause is nearly identical to the elements clause for a “crime of violence” under 18 U.S.C. § 924(c)(2)(A). The government conceded that an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, and after Borden cannot qualify as a predicate offense under § 924(c)(3)(A). The panel concluded, however, that Borden does not provide a basis under § 2255(h)(2) for granting Jones’s application for leave to file a second or successive § 2255 motion because, as a case of statutory interpretation, Borden did not announce a new rule of constitutional law.