     Case: 17-11210      Document: 00514920532         Page: 1    Date Filed: 04/17/2019




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

                                                                              FILED
                                    No. 17-11210                          April 17, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LEONARD WILSON BULLARD, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:16-CV-124


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       In 2005, Leonard Wilson Bullard, Jr., federal prisoner # 31815-177, was
convicted of unlawfully possessing a firearm after a felony conviction. He
received an enhanced sentence under 18 U.S.C. § 924(e) of the Armed Career
Criminal Act (ACCA) based in part on two prior Texas burglary convictions
that were deemed “violent felonies” under § 924(e)(2)(B)(ii). Bullard did not
directly appeal, and his first 28 U.S.C. § 2255 motion was dismissed.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-11210

      In 2016, this court granted Bullard’s motion for authorization to file a
successive § 2255 motion in light of Johnson v. United States, 135 S. Ct. 2551
(2015), which determined that the residual clause of the ACCA’s
§ 924(e)(2)(B)(ii) “violent felony” definition was unconstitutionally vague, and
Welch v. United States, 136 S. Ct. 1257, 1265 (2016), which held that Johnson
was retroactively applicable on collateral review. This court explained that its
grant of authorization was “tentative in that the district court must dismiss
the § 2255 motion without reaching the merits if it determines that Bullard
has failed to make the showing required to file such a motion.”
      The district court denied Bullard’s authorized successive § 2255 motion
on the merits and, alternatively, as time barred. The court reasoned that
Bullard failed to show that he had been sentenced under the residual clause
that was declared unconstitutional in Johnson. This court granted Bullard a
COA on the following issues: (1) whether his § 2255 motion was timely filed,
and (2) if so, whether he should receive relief on his claim that he no longer
qualifies for sentencing under the ACCA.
      A prisoner making a successive § 2255 motion must pass through two
jurisdictional “gates” in order to have his motion heard on the merits. United
States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018) (internal quotation marks
and citation omitted), cert. denied, 2019 WL 1231818 (Mar. 18, 2019) (No. 18-
7252). Bullard successfully passed through the first gate by obtaining this
court’s permission to file a successive § 2255 motion based on his prima facie
showing that his motion relies on the new and retroactive constitutional rule
set forth in Johnson. See Wiese, 896 F.3d at 723; 28 U.S.C. § 2244(b)(2)(A),
(3)(A), (3)(C); § 2255(h)(2). To pass through the second gate, Bullard was
obligated to establish jurisdiction in the district court by actually proving that




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                                  No. 17-11210

he is seeking relief based on Johnson’s new and retroactive constitutional rule.
See Wiese, 896 F.3d at 723; § 2244(b)(2)(A), (4).
      The dispositive question for jurisdictional purposes is whether the
sentencing court more likely than not, or at least may have, relied on the
residual clause in making its sentencing determination. Wiese, 896 F.3d at
724-25. In conducting this evaluation, courts “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.” Id. at 724. Courts may
consider the sentencing record, the presentence report and other relevant
materials before the sentencing court, and the legal landscape at the time of
sentencing. Id. at 725.
      Here, neither party references any statements by the sentencing court
clarifying whether it categorized Bullard’s prior Texas burglary convictions as
violent felonies under the enumerated offenses clause or the residual clause of
§ 924(e)(2)(B)(ii). See Wiese, 896 F.3d at 725. However, the legal landscape at
the time of Bullard’s 2005 sentencing indicates that his Texas burglary
convictions would have qualified as generic burglary offenses under the
enumerated offenses clause and, thus, the residual clause would not have been
on the sentencing court’s radar. See Wiese, 896 F.3d at 725. As we explained
in Wiese, 896 F.3d at 725, it was not until 2008 that any category of Texas
burglary offenses was excluded from consideration as generic burglary, see
United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008), and it was not
until 2018 that the Texas burglary statute was deemed to be indivisible, see
United States v. Herrold, 883 F.3d 517, 522-23 (5th Cir. 2018), petitions for cert.
filed (April 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127).
      In light of the foregoing, Bullard has failed to demonstrate that his
sentencing court more likely than not, or even may have, relied on the



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unconstitutional residual clause in enhancing his sentence based in part on his
two prior Texas burglary convictions. See Wiese, 896 F.3d at 724-25. Bullard
has therefore failed to make the required showing that Johnson provides a
jurisdictional predicate for reaching the merits of his authorized successive
§ 2255 motion. See id. at 726. Consequently, we VACATE the district court’s
judgment and DISMISS the § 2255 motion for lack of jurisdiction.




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