                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0574n.06

                                           No. 17-3491

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                  FILED
                                                                                 Nov 15, 2018
    ANTHONY C. BARRETT,                                  )                   DEBORAH S. HUNT, Clerk
                                                         )
          Petitioner-Appellant,                          )
                                                         )       ON APPEAL FROM THE
    v.                                                   )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE
    UNITED STATES OF AMERICA,                            )       SOUTHERN DISTRICT OF
                                                         )       OHIO
          Respondent-Appellee.                           )


         Before: SILER and KETHLEDGE, Circuit Judges; OLIVER, District Judge*

         KETHLEDGE, Circuit Judge. Anthony Barrett appeals the district court’s denial of his

motion under 28 U.S.C. § 2255, arguing that his sentence for bank robbery and being a felon in

possession of a firearm was unconstitutional. Specifically, he argues that his sentence was based

on the Armed Career Criminal Act’s residual clause, which the Supreme Court declared

unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). But Barrett has not shown

that the sentencing court, in fact, used the residual clause to sentence him; and § 2255 itself bars

him from raising his other arguments.

         In 2011, Barrett pleaded guilty to armed bank robbery and to being a felon in possession

of a firearm. By that time, Barrett already had two robbery convictions in Florida and one in Ohio.

At sentencing, the district court determined that these convictions qualified as “violent felonies”

under the ACCA, meaning that Barrett faced a 15-year mandatory minimum. The district court



 The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 17-3491, Barrett v. United States


sentenced him to concurrent 19-year terms. Barrett did not appeal. The next year, Barrett filed

his first motion under § 2255, which the district court denied. This court affirmed.

       Three years later, the Supreme Court held that the ACCA’s residual clause was

unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2551 (2015). Later that year,

Barrett asked this court for permission to file his second motion under § 2255, arguing that Johnson

invalidated his sentence because, Barrett said, the district court had relied on the residual clause to

sentence him. This court granted Barrett permission to file his motion.

       After Barrett did so, the district court found that when sentencing Barrett it had used the

elements clause rather than the residual clause. Hence the court denied him relief. This appeal

followed.

       We review the district court’s findings of fact for clear error and its legal conclusions de

novo. Valentine v. United States, 488 F.3d 325, 331 (6th Cir. 2007). This court’s decision in

Potter v. United States, 887 F.3d 785 (6th Cir. 2018), governs the analysis here. Under Potter,

Barrett must demonstrate (at a minimum) that the district court in fact relied only upon the residual

clause when it sentenced him in 2011. See id. at 787-88.

       Barrett has not made that showing. The district judge who denied Barrett’s motion was the

same judge who sentenced him. And the judge found that he had relied on the elements clause.

Under Potter, that finding is nearly conclusive. See id. at 788. Moreover, as Barrett largely admits,

under the caselaw at the time his three prior convictions qualified as violent felonies under both

the elements clause and the residual clause. Thus there would have been no legal reason for the

district court to rely only on the residual clause. And Barrett points to nothing in his plea

agreement, his sentencing transcript, or otherwise in the record that could support a finding that

the sentencing court relied only upon the residual clause. His claim therefore fails.



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No. 17-3491, Barrett v. United States


       That leaves Barrett’s argument that his prior convictions would no longer qualify as violent

felonies under the law today. See United States v. Stokeling, 684 F. App’x 870 (11th Cir. 2017),

cert. granted, 138 S. Ct. 1438 (2018); United States v. Yates, 866 F.3d 723 (6th Cir. 2017). But

that argument is based on grounds other than the Supreme Court’s decision in Johnson—which is

to say, it does not rest on “a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court[.]” See 28 U.S.C. § 2255(h). Instead, the argument is an attempt to

relitigate issues that the district court decided at Barrett’s sentencing in 2011. Section 2255 by its

terms bars that attempt.

       In response, Barrett says this court’s order—which authorized his second § 2255 motion—

was “broad enough” to allow him to challenge anew the status of his prior convictions as violent

felonies. But that order does not amend the requirements of § 2255(h). See Paulino v. United

States, 352 F.3d 1056, 1059-61 (6th Cir. 2003). We therefore affirm the district court’s denial of

Barrett’s motion to vacate his sentence.




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