     Case: 17-50445   Document: 00514599963        Page: 1   Date Filed: 08/14/2018




                       REVISED August 14, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                    No. 17-50445
                                                                         FILED
                                                                     July 23, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

EDDIE RAY WIESE, JR., also known as Eddie Ray Weise, Jr.,

             Defendant - Appellant


                Appeal from the United States District Court
                     for the Western District of Texas


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
HAYNES, Circuit Judge:
      We granted Eddie Ray Wiese, Jr. a certificate of appealability on his
successive habeas corpus motion. He argues that his sentence should not have
been enhanced under the Armed Career Criminal Act (“ACCA”). Because
Wiese had not established a jurisdictional predicate for his successive habeas
motion at the district court level, we VACATE the district court’s judgment
and DISMISS Wiese’s motion for lack of jurisdiction.
                                    I. Background
      In 2003, Wiese was charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
with being a felon in possession of a firearm following a 1988 Texas burglary
of a habitation conviction. Wiese pleaded guilty pursuant to a written plea
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agreement. 1 At his rearraignment, Wiese pleaded true to the fact that he had
four prior violent felony or serious drug offense convictions, subjecting him to
a statutory mandatory minimum sentence of fifteen years in prison and up to
five years of supervised release. His guidelines range was 188 to 235 months
in prison. The district court sentenced Wiese to 235 months in prison and a
five-year term of supervised release.
      Wiese filed his initial habeas application in 2004, arguing that his
sentence was unconstitutional under Blakely v. Washington, 542 U.S. 296
(2004). The district court denied relief. He filed the current, second motion in
June 2016, following the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015). In Johnson, the Court determined that ACCA’s residual
clause defining a “violent felony” was unconstitutionally vague. 135 S. Ct. at
2555–57. In Welch v. United States, 136 S. Ct. 1257, 1268 (2016), the Court
held that Johnson retroactively applied to cases on collateral review. Wiese
sought and received authorization from this court to file his second 28 U.S.C.
§ 2255 motion. See § 2255(h). In the authorization, we cautioned that it was
“tentative in that the district court must dismiss the § 2255 motion without
reaching the merits if it determines that Wiese has failed to make the showing
required to file such a motion.” See 28 U.S.C. § 2244(b)(4).
       The district court denied Wiese’s motion. It first determined that it had
jurisdiction to reach the merits. The argument forming the basis for Wiese’s
motion—that the Texas burglary statute was not divisible—was based on
statutory interpretation following Mathis v. United States, 136 S. Ct. 2243
(2016), a case which we had held did not apply retroactively. See In re Lott,



      1 In his plea agreement, Wiese voluntarily and knowingly waived his right to contest
his sentence in a post-conviction proceeding, including under 28 U.S.C. § 2255. However,
because the Government must invoke an appeal waiver to enforce it and has not done so here,
Wiese’s action is proper. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
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838 F.3d 522, 523 (5th Cir. 2016) (per curiam). Nonetheless, the district court
held that because Johnson applied retroactively, it was inconsequential that
Mathis did not. It reasoned that Wiese could have been convicted under a non-
generic form of Texas burglary, Texas Penal Code § 30.02(a)(3), which only
qualified for ACCA purposes under the residual clause. See United States v.
Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam).
      After finding jurisdiction, the district court denied relief based upon our
decision in United States v. Uribe to hold that any argument that the Texas
burglary statute was indivisible was foreclosed, because we held in Uribe that
the Texas burglary statute was divisible. 838 F.3d 667 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1359 (2017), overruled by United States v. Herrold, 883 F.3d
517, 529 (5th Cir. 2018) (en banc), pets. for cert. filed (U.S. April 18, 2018) (No.
17-1445), and (U.S. May 21, 2018) (No. 17-9127). The district court looked to
the Shepard 2 documents provided by the Government to determine under
which subsection of the Texas burglary statute Wiese had been convicted. The
documents indicated that all of the ten burglaries submitted to the court had
been committed with the intent required for generic burglary.                   Thus, the
district court denied Wiese’s § 2255 motion and further denied him a certificate
of appealability, because “Wiese ha[d] failed to make a substantial showing of
the denial of a constitutional right.”
      Wiese appealed the district court’s decision and requested a certificate of
appealability from this court. While his request was pending, we decided
Herrold and held that the Texas burglary statute is indivisible, overruling
Uribe.     Herrold, 883 F.3d at 529, 541. We subsequently granted Wiese’s
certificate of appealability “as to the issue [of] whether he should receive relief
on his claim that he no longer qualifies for sentencing under [] ACCA.”


      2   Shepard v. United States, 544 U.S. 13 (2005).
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                                       II. Discussion
       We must initially determine whether the district court properly reached
the merits of Wiese’s motion. 3 The Government argues that the district court
improperly ruled on the merits of Wiese’s § 2255 motion, because it lacked
jurisdiction to do so. If the district court did not have jurisdiction to reach the
merits, naturally, we cannot reach the merits on appeal. See United States v.
Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curiam) (“If the district court lacked
jurisdiction, ‘[o]ur jurisdiction extends not to the merits but merely for the
purpose of correcting the error of the lower court in entertaining the
suit.’” (alteration in original) (quoting N.Y. Life Ins. Co. v. Deshotel, 142 F.3d
873, 882 (5th Cir. 1998))).
       A second or successive habeas application must meet strict procedural
requirements before a district court can properly reach the merits of the
application. See §§ 2244(b), 2255(h); Reyes-Requena v. United States, 243 F.3d
893, 896–900 (5th Cir. 2001). There are two requirements, or “gates,” which a
prisoner making a second or successive habeas motion must pass to have it
heard on the merits. Reyes-Requena, 243 F.3d at 899. First, we must grant
the prisoner permission to file a second or successive motion, which requires
the prisoner to make a “prima facie showing” that the motion relies on a new
claim resulting from either (1) “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,” or (2) newly discovered, clear and convincing evidence
that but for the error no reasonable fact finder would have found the defendant
guilty. See §§ 2244(b)(2), (3)(A), (3)(C), 2255(h). We granted such permission


       3 We have appellate jurisdiction over the case under 28 U.S.C. § 2253, as a final order
in a § 2255 proceeding on which Wiese was granted a certificate of appealability. We review
a district court’s ultimate decision whether to grant a second or successive habeas motion de
novo as a question of law and factual findings for clear error. See Hardemon v. Quarterman,
516 F.3d 272, 274 (5th Cir. 2008).
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here, and the Government does not contest that Wiese made a prima facie
showing as to a new, retroactive rule of constitutional law based on Johnson. 4
       Second, the prisoner must actually prove at the district court level that
the relief he seeks relies either on a new, retroactive rule of constitutional law
or on new evidence. See § 2244(b)(2), (4). If the motion does not, the district
court must dismiss without reaching the merits. See id. We noted as much
when we granted Wiese permission to file his second habeas motion, stating
that the grant was “tentative in that the district court must dismiss the § 2255
motion without reaching the merits if it determines that Wiese has failed to
make the showing required to file such a motion,” citing § 2244(b)(4) and Reyes-
Requena, 243 F.3d at 899. The Government argues that Wiese did not meet
this requirement because his claim does not rely on a new, retroactive rule of
constitutional law.
      The dispositive question for jurisdictional purposes here is whether the
sentencing court relied on the residual clause in making its sentencing
determination—if it did, then Johnson creates a jurisdictional predicate for the
district court, and for our court on appeal, to reach the merits of Wiese’s
motion. We join the majority of our sister circuits in concluding that we must
look to the law at the time of sentencing to determine whether a sentence was
imposed under the enumerated offenses clause or the residual clause. See
United States v. Washington, 890 F.3d 891, 897–98 (10th Cir. 2018); Potter v.
United States, 887 F.3d 785, 788 (6th Cir. 2018); Dimott v. United States, 881
F.3d 232, 243 (1st Cir. 2018), cert. denied sub nom. Casey v. United States, 2018
WL 1243146 (U.S. June 25, 2018) (No. 17-1251); Beeman v. United States, 871
F.3d 1215, 1221–22 (11th Cir. 2017).


       4 Wiese did not argue that his motion arises from new evidence, and thus, we did not
grant permission to file a second or successive habeas motion on that basis and do not look
to evidentiary considerations here.
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       That said, the circuits are not in accord on how we decide whether the
original sentencing court relied on the residual clause, and we previously have
not established a standard to determine whether the sentencing court relied
on the residual clause for Johnson purposes. See United States v. Taylor, 873
F.3d 476, 481 (5th Cir. 2017); compare Washington, 890 F.3d at 896 (applying
a “more likely than not” standard and collecting cases that have determined
the burden of proof), Potter, 887 F.3d at 788, Dimott, 881 F.3d at 240, and
Beeman, 871 F.3d at 1221–22, 5 with United States v. Geozos, 870 F.3d 890,
896 (9th Cir. 2017) (“We therefore hold that, when it is unclear whether a
sentencing court relied on the residual clause in finding that a defendant
qualified as an armed career criminal, but it may have, the defendant’s § 2255
claim ‘relies on’ the constitutional rule announced in [Johnson].”), and United
States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (articulating that the same
“may have” standard applies “regardless of any non-essential conclusions a
court may or may not have articulated on the record in determining the
defendant’s sentence”). We note that the “more likely than not” standard
appears to be the more appropriate standard since it comports with the general
civil standard for review and with the stringent and limited approach of
AEDPA to successive habeas applications.
       But we need not conclusively decide that here because even under the
standard Wiese argues is most favorable to him—the Fourth Circuit’s standard
requiring a defendant to show that the sentencing court “may have” relied on


       5  As Wiese notes in his reply brief, Dimott and Beeman both were original habeas
claims under § 2255, as opposed to second or successive applications under § 2244. See
Dimott, 881 F.3d at 233–34; Beeman, 871 F.3d at 1218–19. Other courts have used some of
the analysis from those cases to illuminate the successive issue. See Washington, 890 F.3d
at 896. Moreover, as the standard to grant relief under a second or successive habeas
application is even more limited than that of an original habeas application, this distinction
does not aid Wiese. Cf. Gonzalez v. Crosby, 545 U.S. 524, 529–30 (2005) (noting the
restrictions placed on second or successive habeas petitions due to AEDPA).
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the residual clause for a court to consider a collateral challenge based on
Johnson, as articulated in Winston, 850 F.3d at 682—Wiese has not shown that
the sentencing court “may have” relied on the residual clause.
       In determining potential reliance on the residual clause by the
sentencing court, we may look to (1) the sentencing record for direct evidence
of a sentence, Beeman, 871 F.3d at 1224 n.4, see also Massey v. United States,
--- F.3d ----, No. 17-1676, 2018 WL 3370584, at *3 (2d Cir. July 11, 2018), and
(2) “‘the relevant background legal environment that existed at the time of [the
defendant’s] sentencing’ and the [presentence report (“PSR”)] and other
relevant materials before the district court,” Washington, 890 F.3d at 896
(citing United States v. Snyder, 871 F.3d 1122, 1128–30 (10th Cir. 2017), cert.
denied, 138 S. Ct. 1696 (2018)). Here, although the sentencing judge did not
make any statement as to which clause was used for the sentencing
enhancement, it is not “more likely than not” that the residual clause came
into play. As well, there is nothing to indicate that the sentencing judge “may
have” relied on the residual clause.
       In 2003, when Wiese was convicted of being a felon in possession, all of
§ 30.02(a) was considered generic burglary under the enumerated offenses
clause of ACCA. See United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992);
see also United States v. Stone, 72 F. App’x 149, 150 (5th Cir. 2003) (per curiam)
(citing Silva, 957 F.2d at 161–62). 6 That we held five years later that §
30.02(a)(3) is not generic burglary, United States v. Constante, 544 F.3d 584,
587 (5th Cir. 2008) (per curiam), or that we held earlier this year that § 30.02(a)
is indivisible, Herrold, 883 F.3d at 529, are of no consequence to determining
the mindset of a sentencing judge in 2003. Indeed, Herrold’s state law analysis



       6 Although Stone is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).
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that undergirded the divisibility determination was largely based upon a Texas
Court of Appeals case decided five years after the sentencing in this case. See
Herrold, 883 F.3d at 523, 525 (citing Martinez v. State, 269 S.W.3d 777 (Tex.
App.—Austin 2008, no pet.)).      Thus, at the time of sentencing, there was
absolutely nothing to put the residual clause on the sentencing court’s radar
in this case.
      What is more, the PSR and other documents before the sentencing court
clearly indicate that the sentencing judge would have relied on the enumerated
offenses clause in sentencing Wiese.        The PSR identifies “Burglary of a
Habitation” as the offense which led to Wiese’s sentence enhancement, and the
charges against Wiese in all ten instances for which the Government provided
Shepard documents reflect that he was convicted with the requisite intent
under Texas Penal Code § 30.02(a)(1). We have never held that subsection
(a)(1), alone, does not constitute generic burglary; Herrold declined to reach
that issue. Herrold, 883 F.3d at 541. Thus, the actual charges that Wiese was
convicted of did not present a situation where the residual clause would have,
in any way, been considered as a basis for ACCA sentencing enhancement.
      Neither Mathis nor Herrold can save Wiese’s motion. Mathis did not
state a new rule of constitutional law that has been made retroactive to cases
on collateral review by the Supreme Court, In re Lott, 838 F.3d at 523, and
neither did Herrold, a decision of this court. To the extent that Wiese attempts
to use Mathis and Herrold to argue that, in light of Johnson, convictions under
the enumerated offenses clause must also be reconsidered, numerous circuit
courts have expressly rejected that contention. See Perez v. United States, ---
F. App’x ----, No. 16-17751, 2018 WL 1750555, at *5 (11th Cir. Apr. 12, 2018)
(per curiam), pet. for cert. filed (U.S. Jul. 10, 2018) (No. 18-5217); Dimott, 881
F.3d at 237; United States v. Safford, 707 F. App’x 571, 573 (10th Cir. 2017)
(“What Defendant is attempting is to leverage the irrelevant Johnson decision

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                                  No. 17-50445

to enable him to apply Mathis retroactively. We can admire the effort, but we
cannot permit such a circumvention of habeas law.”), pet. for cert. filed (U.S.
May 25, 2018) (No. 17-9170); Holt v. United States, 843 F.3d 720, 723–24 (7th
Cir. 2016); cf. Massey, --- F.3d ----, 2018 WL 3370584, at *4 (analogizing to
Dimott to hold that similarly bootstrapping Curtis Johnson v. United States,
559 U.S. 133 (2010), to Johnson to support a successive habeas motion “cannot
be right” (quoting Dimott, 881 F.3d at 238)). Although we have not addressed
this precise argument before today, we have implicitly rejected the contention
as well. See In re Lott, 838 F.3d at 522–23 (rejecting the contentions that (1)
Johnson applied to a sentencing enhancement based on the enumerated
offenses clause, and (2) Mathis could apply to set forth a new, retroactive rule
of constitutional law). We expressly reject it here. Johnson only applied to the
residual clause and cannot be used to attack sentences under the enumerated
offenses clause. If the district court did not rely on the residual clause, Johnson
cannot be a jurisdictional predicate, regardless of subsequent changes in the
law, if they are not new, retroactive rules of constitutional law by the Supreme
Court.
      In sum, Wiese has not established that the sentencing court “more likely
than not” relied upon the residual clause. Even if we apply the less demanding
“may have relied” standard, there is no evidence that the sentencing court
“may have” relied on the residual clause in sentencing Wiese.            Merely a
theoretical possibility cannot satisfy this standard.       Cf. United States v.
Jeffries, 822 F.3d 192, 193–94 (5th Cir. 2016) (holding that even if Johnson
applied to the residual clause of United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.2, a defendant sentenced as a career offender under U.S.S.G.
§ 4B1.1 would not have an arguable claim for relief because his crime was a
specifically enumerated crime of violence in the Application Note), cert. denied,
137 S. Ct. 1328 (2017). Therefore, the district court erred in reaching the

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merits of Wiese’s motion, and we likewise lack jurisdiction to do so.
                                III.   Conclusion
      Because Johnson is not a jurisdictional predicate for Wiese’s § 2255
motion, the district court did not have jurisdiction to reach the merits of the
motion.   Consequently, we VACATE the district court’s judgment and
DISMISS Wiese’s § 2255 motion for lack of jurisdiction.




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