                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 30 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TERRY LAMELL EZELL,                             No.    17-35685

                Petitioner-Appellant,           D.C. No. 2:17-cv-00255-RSM

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ricardo S. Martinez, Chief Judge, Presiding

                       Argued and Submitted July 11, 2018
                              Seattle, Washington

Before: FERNANDEZ, CLIFTON, and NGUYEN, Circuit Judges.

      Terry Ezell appeals the district court’s denial of his second petition for

habeas relief pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28

U.S.C. § 2253(a), and we affirm.

      1. Ezell failed to contest the constitutionality of his enhanced sentence at

sentencing and on direct appeal but his procedural default is excused by “cause”



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and “prejudice.” See Bousley v. United States, 523 U.S. 614, 621–22 (1998). Ezell

had cause not to challenge because at that time, Supreme Court precedent1

foreclosed the argument that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii)

was unconstitutionally vague. Reed v. Ross, 468 U.S. 1, 17 (1984). Ezell was

prejudiced because any error under Johnson v. United States, 135 S. Ct. 2551

(2015), subjected him to a heightened mandatory minimum sentence. See 18

U.S.C. § 924(e)(1).

      2. The “threshold question” here is whether Ezell’s second § 2255 petition

relies on the rule announced in Johnson. United States v. Geozos, 870 F.3d 890,

894 (9th Cir. 2017); see also 28 U.S.C. § 2255(h)(2). In United States v. Geozos,

we set forth the applicable framework for answering that question. 870 F.3d at

895–96. If the sentencing record makes clear that the district court did not rely on

the residual clause to find that a prior offense qualified as a predicate offense under

the Armed Career Criminal Act, the petition does not rely on Johnson as to that

offense. Id. at 895. If the record is unclear whether the district court relied on the

residual or another clause, we look to whether there is any controlling law that

would allow us to infer that the district court relied on something other than the

residual clause. Id. at 896. If we cannot draw such an inference because the



1
 See James v. United States, 550 U.S. 192 (2007), overruled by Johnson v. United
States, 135 S. Ct. 2551 (2015).

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relevant legal background is mixed, the claim relies on Johnson for § 2255(h)(2)

purposes. Id.

      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 Ezell’s two convictions

for second-degree burglary qualified as predicate offenses for purposes of the

Armed Career Criminal Act. The district court specifically referenced the

Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and our

decision in United States v. Kilgore, 7 F.3d 854 (9th Cir. 1993) (per curium), both

of which are enumerated offense cases.

      The record is unclear which clause the district court relied on for the two

second-degree assault convictions, but the relevant legal background indicates that

Ezell’s conviction for intentional assault resulting in substantial bodily harm under

Washington Revised Code § 9A.36.021(1)(a) qualified as a predicate offense under

the elements clause. See United States v. Hermoso-Garcia, 413 F.3d 1085, 1088–

89 (9th Cir. 2005) (holding that such an assault was a crime of violence under

then-sentencing guideline § 2L1.2(b)(1)(A)(ii)’s nearly identically worded residual

clause).

      Because the district court did not rely on the residual clause for three

predicate offenses, Ezell’s claim does not rely on the rule announced in Johnson.

Id. at 896 (“[A] claim does not ‘rely on’ Johnson[] if it is possible to conclude,


                                          3
using both the record before the sentencing court and the relevant background legal

environment at the time of sentencing, that the sentencing court’s ACCA

determination did not rest on the residual clause.”).

      AFFIRMED.




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