UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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

v. ORDER AND 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 June 9, 2022

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

Order; Opinion by Judge Boggs; Dissent by Judge Wallace

* The Honorable Danny J. Boggs, Senior 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 withdrew an opinion filed May 11, 2022, and filed a superseding opinion denying 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.

In the superseding opinion, the panel wrote that if Jones were seeking relief from a state sentence pursuant to 28 U.S.C. § 2254, there could be a question whether jurisdiction was lacking over the Davis claim because under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section 2254 that ** 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 was presented in a prior application shall be dismissed.” The panel wrote, however, that whether § 2244(b)(1) is jurisdictional or not, it presents no jurisdictional problem here because Jones moves for relief from a federal sentence pursuant to § 2255.

On a question not yet decided in this circuit, and as to which other circuits are divided, the panel held that § 2244(b)(1) does not apply to second or successive § 2255 motions. In so holding, the panel explained that the plain text of § 2244(b)(1) by its terms applies only to state prisoners’ applications “under section 2254”—not federal prisoners’ motions under § 2255; that statutory structure further supports this reasoning; and that policy interests under Antiterrorism and Effective Death Penalty Act do not counsel in favor of applying § 2244(b)(1) to § 2255 motions.

The panel wrote that both of Jones’s claims must therefore be analyzed instead under the gateway provisions of § 2255(h). Because Jones did not rest his second or successive motion on new evidence, 28 U.S.C. § 2255(h)(1), the panel could authorize his motion only if it makes a prima facie showing that the claims contain “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C. § 2255(h)(2).