     Case: 15-30420   Document: 00513833759         Page: 1   Date Filed: 01/12/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-30420                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
UNITED STATES OF AMERICA,                                           January 12, 2017
                                                                     Lyle W. Cayce
             Plaintiff - Appellee                                         Clerk

v.

DWAYNE D. MORGAN,

             Defendant - Appellant




                Appeals from the United States District Court
                    for the Middle District of Louisiana


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Defendant Dwayne D. Morgan (“Morgan”) challenged his sentence by
filing a motion under 28 U.S.C. § 2255. The district court denied the challenge.
Because the motion was not timely filed, we AFFIRM.
                                    I. Background
      Morgan pleaded guilty, pursuant to a written plea agreement, to felony
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Morgan was
sentenced in 2010 pursuant to the Armed Career Criminal Act (“ACCA”) to
fifteen years in prison because at least three of his four prior convictions for
purse snatching, aggravated battery, second degree battery, and second degree
robbery qualified as “violent felonies.” 18 U.S.C. § 924(e). Judgment was
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entered on April 22, 2010. Morgan did not appeal his conviction or sentence.
Therefore, his conviction became final on May 6, 2010. 1
      On June 20, 2013, the Supreme Court decided Descamps v. United
States, 133 S. Ct. 2276 (2013). Less than a year later, on April 28, 2014,
Morgan filed the instant § 2255 motion, arguing that the Supreme Court’s
recent decisions, including Descamps, rendered one or more of his underlying
predicate felony offenses ineligible for consideration as a violent felony under
the ACCA. The district court dismissed Morgan’s § 2255 motion as time barred
because Descamps was not retroactively applicable to cases on collateral
review. The district court granted a Certificate of Appealability (“COA”) on the
issue of whether Descamps applies retroactively to cases on collateral review.
Morgan filed a timely appeal from the district court’s order.
                               II. Standard of Review
      “We review the district court’s factual findings relating to a § 2255
motion for clear error and its conclusions of law de novo.” United States v.
Olvera, 775 F.3d 726, 728–29 (5th Cir. 2015) (quoting United States v. Redd,
562 F.3d 309, 311 (5th Cir. 2009)).
                                    III. Discussion
      Prisoners generally must file a § 2255 motion within one year of the date
the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Morgan
effectively admits that he did not do so but argues that his motion is
nonetheless timely because it was filed within one year of the Supreme Court’s
decision in Descamps.        He contends that the date Descamps was issued


      1  A judgment of conviction becomes final when the conviction is affirmed on direct
review or when the time for perfecting an appeal expires. Clay v. United States, 537 U.S.
522, 527 (2003). Since no appeal was taken, Morgan’s conviction became final fourteen days
after judgment was entered. FED. R. APP. P. 4(b).

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restarted his filing clock as “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review.” § 2255(f)(3). We hold that Descamps did not restart the clock because,
even though Morgan filed his motion within a year of Descamps, the right
Morgan asserts was not newly recognized by Descamps.
      In Descamps, the Supreme Court held that “sentencing courts may not
apply the modified categorical approach when the crime of which the defendant
was convicted has a single, indivisible set of elements.” 133 S. Ct. at 2282. In
other words, a district court at sentencing may only review certain materials
when determining whether a prior conviction qualifies as an ACCA predicate
if the predicate statute is divisible, i.e., if it lists potential offense elements in
the alternative. Id. at 2282–86. Importantly, in explaining its holding, the
Court stated that prior “caselaw explaining the categorical approach and its
‘modified’ counterpart all but resolve[d] th[e] case.”         Id. at 2283.     After
explaining four of its precedents, the Court observed that limiting application
of the modified categorical approach to divisible statutes was “the only way” it
had “ever allowed” courts to use the categorical approach. Id. at 2283–85
(citing Johnson v. United States, 559 U.S. 133 (2010); Nijhawan v. Holder, 557
U.S. 29 (2009); Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United
States, 495 U.S. 575 (1990)).
      Neither this court nor the Supreme Court has addressed whether the
Supreme Court recognized a new right in Descamps under § 2255(f)(3).
Examining a different subsection of the same section, § 2255(h)(2), we
concluded that “[n]othing in Descamps indicates that its holding announced a




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new rule that was constitutionally based.” 2 In re Jackson, 776 F.3d 292, 296
(5th Cir. 2015); see also Ezell v. United States, 778 F.3d 762, 766 (9th Cir.)
(holding that “[t]he Supreme Court did not announce a new rule in Descamps”
while evaluating a motion under § 2255(h)), cert. denied, 136 S. Ct. 256 (2015)).
However, Jackson explicitly declined to address cases involving petitioners
bringing an initial habeas motion under § 2255(f)(3) and, therefore, does not
answer the question presented. 776 F.3d at 296 n.5.
       Other circuits that have reached this issue when evaluating an initial
habeas motion under § 2255 have uniformly held that Descamps did not
announce a new rule. See Mays v. United States, 817 F.3d 728, 734 (11th Cir.
2016) (“Descamps did not announce a new rule.”); Headbird v. United States,
813 F.3d 1092, 1097 (8th Cir. 2016) (“Descamps . . . did not establish a new
rule.”); see also United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014) (noting
on direct appeal that “[t]he Supreme Court in Descamps explained that it was
not announcing a new rule, but was simply reaffirming the Taylor/Shepard
approach, which some courts had misconstrued”). 3
       We agree with our sister courts that Descamps did not establish a new
rule. A new rule is one that “breaks new ground or imposes a new obligation
on the States or the Federal Government.” Teague, 489 U.S. at 301. Stated


       2  The subsection addressed in Jackson ((h)(2)) requires a “new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable” whereas the subsection addressed here focuses on “the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.”
       3 Several unpublished cases have come to the same conclusion: King v. United States,

610 F. App’x 825, 828 (11th Cir.) (“As for Descamps, it is not a new rule. It merely applied
prior precedent to reaffirm that courts may not use the modified categorical approach to
determine whether convictions under indivisible statutes are predicate ACCA violent
felonies.”), cert. denied, 136 S. Ct. 349 (2015); United States v. Hopson, 589 F. App’x 417 (10th
Cir. 2015) (“Descamps did not recognize a new right, but rather applied existing doctrine.”).
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differently, “[a] rule is ‘new’ under Teague unless it was so ‘dictated by
precedent existing at the time the defendant’s conviction became final.’”
United States v. Amer, 681 F.3d 211, 213 (5th Cir. 2012) (quoting Teague, 489
U.S. at 301). Dictated by precedent means that “no other interpretation was
reasonable.” Lambrix v. Singletary, 520 U.S. 518, 538 (1997). For example, a
rule that applies a general principle to a new set of facts typically does not
constitute a new rule. Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013).
In determining whether a rule is new, we look to: “(1) whether the decision
announcing the rule at issue purported to rely on ‘controlling precedent’;
(2) whether there was a ‘difference of opinion on the part of . . . lower courts
that had considered the question’; and (3) whether the Justices expressed an
‘array of views.’” Amer, 681 F.3d at 213 (citations omitted).
       At the time of Descamps, there appears to have been a difference of
opinion between four courts of appeals as to whether the modified categorical
approach applied only to divisible statues. Descamps, 133 S. Ct. at 2283 n.1. 4
Additionally, Justice Alito dissented from the Descamps majority, essentially
agreeing with the Ninth Circuit’s interpretation of the law. See id. at 2286 n.3.
However, “the standard for determining when a case establishes a new rule is
‘objective,’ and the mere existence of conflicting authority does not necessarily
mean a rule is new.” Wright v. West, 505 U.S. 277, 304 (1992) (O’Connor, J.,
concurring) (quoting Stringer v. Black, 503 U.S. 222, 237 (1992)).
Furthermore, the “mere existence of a dissent [does not] suffice[] to show that


       4 Compare United States v. Descamps, 466 F. App’x 563, 565 (9th Cir. 2012) (applying
the modified categorical approach to § 459), rev’d, 133 S. Ct. 2276 (2013) and United States
v. Armstead, 467 F.3d 943, 947–50 (6th Cir. 2006) (applying that approach to a similar,
indivisible statute), abrogated by Descamps v. United States, 133 S. Ct. 2276 (2013), with
United States v. Beardsley, 691 F.3d 252, 268–74 (2d Cir. 2012) (holding that the modified
categorical approach applies only to divisible statutes), and United States v. Giggey, 551 F.3d
27, 40 (1st Cir. 2008) (en banc) (same).
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the rule is new.” Beard v. Banks, 542 U.S. 406, 416 (2004); cf. Amer, 681 F.3d
at 213 (holding that the “array of views expressed by the Justices,” along with
the fact that a case “departed markedly from the legal landscape” was
sufficient to show that a case was new within the meaning of Teague (citations
omitted)).
      We agree with the Eighth Circuit that we “must rely principally on the
rationale articulated by the Court in its decision.” Headbird, 813 F.3d at 1097.
As explained above, Descamps clearly relies on existing precedent. The Court
explicitly says so and spends nearly the whole opinion explaining that
viewpoint.   133 S. Ct. at 2283–93.     This clarity outweighs any apparent
disagreement among the circuits and the justices. We conclude, therefore, that
Morgan’s § 2255 motion challenging his sentence is not timely.
      AFFIRMED. Motion to appoint counsel DENIED.




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