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                        REVISED April 25, 2019

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


                                   No. 17-60538
                                                                         FILED
                                                                     April 18, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

            Plaintiff – Appellee

v.

GLEN B. CLAY, also known as Glenn B. Clay,

            Defendant – Appellant


                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before JONES, HO, and OLDHAM, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      The district court denied Petitioner’s successive § 2255 habeas petition
because he failed to establish that the sentencing court relied on the residual
clause to impose his ACCA-enhanced sentence. Because this court concludes
that a prisoner bringing a successive § 2255 petition must show that it is “more
likely than not” that the sentencing court relied on the residual clause to prove
that his claim “relies on” Johnson, the district court’s judgment is AFFIRMED.
                               BACKGROUND
      Following a jury trial in 2008, Petitioner Glen B. Clay, federal prisoner
#09299-043, was convicted of violating 18 U.S.C. § 922(g)(1) for being a felon
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                                 No. 17-60538
in possession of a firearm. That conviction ordinarily carries a maximum
sentence of ten years.      See 18 U.S.C. § 924(a)(2).     However, both the
superseding indictment and the presentence report (“PSR”) indicated that Clay
was punishable under the Armed Career Criminal Act (“ACCA”), which
imposes a 15-year minimum sentence on defendants who have at least three
prior convictions for “violent felonies” or for “serious drug offenses” when the
underlying crimes were committed on different occasions.         See 18 U.S.C.
§ 924(e). During sentencing, Clay’s counsel conceded that the ACCA applied.
Thereafter, the sentencing court adopted the PSR’s recommendations and
applied the ACCA sentencing enhancement, sentencing Clay to 235 months’
imprisonment.
      Clay timely appealed both his conviction and sentence, but he did not
challenge the ACCA sentencing enhancement on direct appeal or in his initial
habeas petition. Clay’s acceptance of the ACCA’s applicability evaporated,
however, after the Supreme Court issued its decision in Johnson v. United
States and held that “imposing an increased sentence under the residual clause
of the Armed Career Criminal Act violates the Constitution’s guarantee of due
process.” 135 S. Ct. 2551, 2563 (2015). Claiming that the sentencing court
relied on the residual clause to impose his ACCA-enhanced sentence, Clay
sought permission to file a successive § 2255 habeas petition in light of
Johnson. This court granted him permission in 2016, reasoning that because
“[t]he record before us contains no documentation of Clay’s predicate offenses,”
there is a “possibility that he was sentenced under the residual clause.” In so
doing, this court cautioned 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 Clay has failed to make the showing required to
file such a motion.”


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                                  No. 17-60538
       Clay filed his successive § 2255 habeas petition in district court. At
bottom, Clay alleged that the sentencing court “only relied on the now invalid
‘residual clause’ to establish that [his] prior state court convictions supported
an enhanced sentence” under the ACCA. Clay’s petition acknowledged that
the record did not include any documents relating to his underlying state-court
convictions which proved that the sentencing court relied on the residual
clause.   Accordingly, Clay asked the district court to obtain “appropriate
adjudicative records” during the process of evaluating his petition to determine
“whether any of Clay’s convictions qualify as violent felonies under the ACCA.”
Id.
       The district court denied Clay’s successive petition without obtaining the
requisite documents. First, the district court held that it lacked jurisdiction
over Clay’s successive petition because Clay “has not demonstrated that the
court relied on the residual clause in sentencing him” and therefore “has not
shown that his case falls within the rule announced in Johnson.” Second, in
the alternative, the district court held that Clay “failed to show that he is
entitled to relief on the merits” because his prior convictions qualify as “violent
felonies” under the enumerated offenses clause of the ACCA, which means that
any error from the sentencing court’s reliance on the residual clause is
harmless. In its order denying Clay’s successive petition, the district court also
denied a certificate of appealability (“COA”). Clay then sought a COA before
this court.
       This court granted Clay a COA to challenge the district court’s denial of
his successive § 2255 petition. The COA was granted on two issues, which
parallel the district court’s alternate holdings: (1) “whether a prisoner seeking
the district court’s authorization to file a successive § 2255 motion raising a
Johnson claim must establish that he was sentenced under the residual clause
to show that the claim relies on Johnson”; and (2) “whether any Johnson error
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                                  No. 17-60538
at sentencing was harmless because Clay’s 1982 house burglaries constituted
enumerated burglary under the ACCA.”
                          STANDARD OF REVIEW
      “In challenges to district court decisions under 28 U.S.C. § 2255, we
measure findings of fact against the clearly erroneous standard and questions
of law de novo.” United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). “If
the district court lacked jurisdiction, our jurisdiction extends not to the merits
but merely for the purpose of correcting the error of the lower court in
entertaining the suit.” United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)
(per curiam) (internal quotation marks, citation, and alteration omitted).
                                 DISCUSSION
      Under 28 U.S.C. §§ 2244(b) and 2255(h), “[a] second or successive habeas
application must meet strict procedural requirements before a district court
can properly reach the merits of the application.” United States v. Wiese,
896 F.3d 720, 723 (5th Cir. 2018). “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.” Id. (internal citation omitted). First, the prisoner
must make a “prima facie showing” to the circuit court “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.” Id. (quoting 28 U.S.C. §§ 2244(b), 2255(h)). Second, after receiving
permission from the circuit court to file a successive petition, “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.” Id.
(citing 28 U.S.C. § 2244(b)).   Where a prisoner fails to make the requisite


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                                  No. 17-60538
showing before the district court, the district court lacks jurisdiction and must
dismiss his successive petition without reaching the merits. Id.
      At issue here is the degree to which a prisoner “must actually prove” that
the relief he seeks “relies on” Johnson to confer jurisdiction on a district court.
Id. The circuits are split on this issue. To prove that a successive petition
relies on Johnson in the First, Third, Sixth, Eighth, Tenth, and Eleventh
Circuits, a prisoner must show that it is “more likely than not” that the
sentencing court invoked the residual clause. See, e.g., Dimott v. United States,
881 F.3d 232, 243 (1st Cir. 2018) (“[T]o successfully advance a [Johnson] claim
on collateral review, a habeas petitioner bears the burden of establishing that
it is more likely than not that he was sentenced solely pursuant to ACCA’s
residual clause.”); see also United States v. Peppers, 899 F.3d 211, 235 n. 21 (3d
Cir. 2018); Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018); Walker v.
United States, 900 F.3d 1012, 1015 (8th Cir. 2018); United States
v. Washington, 890 F.3d 891, 896 (10th Cir. 2018); Beeman v. United States,
871 F.3d 1215, 1221–22 (11th Cir. 2017). In contrast, to prove that a successive
petition relies on Johnson in the Fourth and Ninth Circuits, a prisoner need
only show that the sentencing court “may have” invoked the residual clause.
See United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017); United States
v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017).
      Although this court has previously observed in passing that “the ‘more
likely than not’ standard appears to be the more appropriate standard,” we
have yet to “conclusively decide” which standard of proof applies.          Wiese,
896 F.3d at 724–25 (noting that the successive petition failed under either
standard); see also United States v. Taylor, 873 F.3d 476, 479–81 (5th Cir.
2017) (describing the circuit split before concluding that “[w]e need not decide
today which, if any, of these standards we will adopt because we conclude that
Taylor’s § 2255 claim merits relief under all of them”). For reasons described
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                                    No. 17-60538
below, resolving Clay’s appeal will require this court to select a standard of
proof. However, before resolving that issue, a little background is in order.
      To receive a sentencing enhancement under the ACCA, a defendant must
have previously been convicted of at least three “violent felonies” that occurred
on different occasions from one another. 1 18 U.S.C. § 924(e)(1). At the time
Clay was sentenced for violating 18 U.S.C. § 922(g)(1), the ACCA defined
“violent felony” as a “crime punishable by imprisonment for a term exceeding
one year” that (1) “has as an element the use, attempted use, or threatened use
of physical force against the person of another” (“the force clause”); (2) “is
burglary, arson, or extortion, [or] involves [the] use of explosives” (“the
enumerated offenses clause”); or (3) “otherwise involves conduct that presents
a serious potential risk of physical injury to another” (“the residual clause”).
Id. § 924(e)(2)(B). In Johnson, the Supreme Court held that the residual clause
was unconstitutionally vague, such that an ACCA-enhanced sentence could
not be constitutionally imposed in reliance on that clause’s definition of a
“violent felony.” 135 S. Ct. at 2557. In Welch v. United States, the Court held
Johnson retroactively applicable to cases on collateral review, thus enabling
the basis for Clay’s successive petition. 136 S. Ct. 1257, 1265 (2016).
      In this case, both the superseding indictment and PSR indicate that—at
the time of his sentencing—Clay had nine prior Mississippi convictions for
which he was sentenced to “imprisonment for a term exceeding one year”: two
for business burglary, two for armed robbery, one for aggravated assault, and
four for house burglary.       Although both documents report that Clay was
eligible for an ACCA sentencing enhancement, neither document identifies
which of Clay’s prior convictions were used to make that determination or


      1  No parties contest that Clay qualified for an ACCA sentencing enhancement based
on the commission of a “serious drug offense,” so that predicate is not analyzed here.

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                                  No. 17-60538
which definitional clauses of the ACCA were used to define those convictions
as “violent felonies.” Moreover, because Clay’s counsel conceded at his hearing
that the ACCA applied, there was no occasion for the sentencing court to clarify
how the requisite “violent felonies” were tabulated.
      For the sentencing court to have lawfully imposed the ACCA sentencing
enhancement, it would have needed to determine that at least three of Clay’s
prior convictions were for “violent felonies” under the ACCA.                  See
18 U.S.C. § 924(e)(1). Because Clay’s armed robbery and aggravated assault
convictions stemmed from the same incident, they would have counted
together as only one ACCA-qualifying offense. Therefore, the sentencing court
must have determined that at least two of Clay’s six burglary convictions were
“violent felonies.” Neither the district court nor the parties allege that Clay’s
convictions for “business burglary” were “violent felonies.”        The question
reduces to whether at least two of Clay’s convictions for “house burglary” were
correctly considered “violent felonies.”
      Clay argues that the only way the sentencing court could have counted
his “house burglary” convictions as “violent felonies” is for the sentencing court
to have relied on the now-unconstitutional residual clause. Alternatively, he
claims that “[w]here no record exists explaining whether [a] petitioner’s
convictions fit the elements clause, the enumerated offenses clause, or the
residual clause,” this court should apply the rule of lenity and give him the
benefit of the doubt. (internal quotation marks and citation omitted). The
government responds that convictions for “house burglary” qualified expressly
as “violent felonies” under ACCA’s enumerated offenses clause. See
18 U.S.C. § 924(e)(2)(B)(ii). Consequently, even if the sentencing court relied
on the residual clause, any error is harmless.
      “[T]o determine whether a sentence was imposed under the enumerated
offenses clause or the residual clause,” this court “look[s] to the law at the time
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                                 No. 17-60538
of sentencing.” Wiese, 896 F.3d at 724. In 2008, when Clay’s ACCA-enhanced
sentence was imposed, the sentencing court would have used the categorical
approach to determine whether his prior “house burglary” convictions qualified
as “violent felonies” under the enumerated offenses clause. Burglary is an
enumerated offense in 18 U.S.C. § 924(e)(2)(B)(ii), but not all offenses labeled
“burglary” constitute the enumerated, generic offense of burglary listed in the
ACCA. See Taylor v. United States, 495 U.S. 575, 580, 598–99, 110 S. Ct. 2143,
2149, 2158 (1990). Under the categorical approach, to determine whether
Clay’s “house burglary” convictions were convictions for “generic burglary,” the
sentencing court would have compared the elements of the statute of
conviction—here, the Mississippi statute criminalizing “house burglary” in
1982—with the elements of “generic burglary.” Id. at 599–600, 110 S. Ct. at
2158–59. For purposes of the ACCA, “generic burglary” is defined by “the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” Id. at 599, 110 S. Ct. at 2158. When
comparing the elements, “[i]f the state statute [of conviction] is narrower than
the generic view . . . the conviction necessarily implies that the defendant has
been found guilty of all the elements of generic burglary” and the conviction
therefore qualifies as an enumerated “violent felony.” Id. However, if the state
statute of conviction “define[s] burglary more broadly, e.g., by eliminating the
requirement that the entry be unlawful, or by including places, such as
automobiles and vending machines, other than buildings,” the conviction
generally will not qualify. Id. at 599–602, 110 S. Ct. at 2158–60.
      In this case, the district court found (and the government argues on
appeal) that Clay’s “house burglary” convictions were for violating Mississippi
Code Annotated § 97-17-19 (1972), which criminalized “breaking and entering
any dwelling house, in the day or night, with intent to commit a crime.” See
Course v. State, 469 So. 2d 80, 80–81 (Miss. 1985) (applying Mississippi Code
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                                        No. 17-60538
Annotated (1972) to a burglary committed in October 1982). Because that
statute includes “the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime,” the
district court concluded under the categorical approach that Clay’s convictions
for “house burglary” were enumerated “violent felonies” under the ACCA.
Taylor, 495 U.S. at 599, 110 S. Ct. at 2158.                 Therefore, the district court
reasoned, “even if the [sentencing] court relied on the residual clause . . . Clay’s
sentence was properly enhanced under the ACCA and thus, he has suffered no
prejudice from any Johnson error.” On these grounds, the district court denied
Clay’s successive § 2255 petition.
       Clay disputes this result on three bases.                 His first two arguments
challenge the district court’s analysis under the categorical approach, insisting
(for various reasons) that § 97-17-19 does not comport with “generic burglary”
under the ACCA. This court finds those arguments unavailing. 2 Clay’s third



       2 First, citing to a federal district court opinion, Clay claims that this court must apply
“current law on the enumerated offense clause” to determine if a Johnson error is harmless.
(citing United States v. Scott, No. CV 99-05-JJB-EWD, 2017 WL 3446030, at *2 (M.D. La.
Aug. 10, 2017), superseded on other grounds, 2018 WL 2169965 (M.D. La. May 10, 2018)
(emphasis omitted)). Clay appears to argue that, because this court held in 2017 that the
current Mississippi burglary statute is broader than “generic burglary,” his convictions under
a now-superseded burglary statute cannot be enumerated felonies under the ACCA. (citing
United States v. Johnson, 477 F. App’x 182, 183 (5th Cir. 2012) (per curiam) (“There is no
dispute that [Mississippi Code Annotated § 97-17-33 (1992)] criminalizes conduct not covered
by a generic burglary offense.”));
        The problem with this first argument is that, contra Clay’s assertion, this court does
not rely on current statutory elements when deciding whether a defendant’s prior conviction
constitutes a “violent felony.” Rather, this court examines the statutory elements as they
existed at the time the defendant committed the offense. As a result, it is irrelevant that this
court—in a 2017 unpublished opinion—held that the 1992-version of Mississippi’s burglary
statute is broader than the generic definition. What matters is whether the version of the
statute in effect at the time of Clay’s house burglaries in 1982 matches the generic definition.
        Turning to the statutes in effect at the time of his conviction, Clay next contends that
the “meaning of a dwelling-house” is broader than the “building or structure” contemplated
in Taylor. Clay did not raise this issue until his reply brief. Thus, it is waived. See United
States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (per curiam) (“Arguments raised for
the first time in a reply brief, even by pro se litigants . . . are waived.”).
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                                 No. 17-60538
argument, however, is more compelling and requires this court to resolve the
first issue identified in the COA—namely, the degree to which a prisoner must
prove that he was sentenced under the residual clause before he is entitled to
bring a successive § 2255 petition raising a Johnson claim.
      In his third argument, Clay contends that it is impossible for this court
to determine whether his prior convictions were for enumerated felonies under
the categorical approach because, at the time of his convictions, the Mississippi
Code Annotated had multiple statutes criminalizing the burglary of a house
and neither the superseding indictment, PSR, nor sentencing court indicated
which of those statutes he was convicted of violating. Consequently, although
Mississippi Code Annotated § 97-17-19 (1972) may comport with the definition
of “generic burglary,” it is not clear that Clay was convicted of violating § 97-
17-19. Instead, his “house burglary” convictions could have been for violating
Mississippi   Code   Annotated    § 97-17-21    (1972)     (“Burglary:   Inhabited
Dwelling”); § 97-17-23 (1972) (“Burglary: Inhabited Dwelling—Breaking in at
Night While Armed With Deadly Weapon”); § 97-17-25 (1972) (“Burglary:
Breaking Out of Dwelling”); § 97-17-27 (1972) (“Burglary: Breaking Inner Door
of Dwelling at Night”); or § 97-17-29 (1972) (“Burglary: Breaking Inner Door of
Dwelling by One Lawfully in House”). Not all of these statutes comport with
the definition of “generic burglary” in the enumerated offenses clause. See
§ 97-17-25 (criminalizing unlawful exit of a dwelling house after committing a
crime therein, with no mention of “unlawful or unprivileged entry into, or
remaining in” that house “with intent to commit a crime”).
      Without conviction records, this court cannot conclusively determine
which statute(s) Clay was convicted of violating—and, accordingly, whether
his prior convictions for “house burglary” qualified as “violent felonies” under
the ACCA’s enumerated offenses clause. Therefore, this court cannot rule out
the possibility that the sentencing court relied solely on the residual clause to
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                                  No. 17-60538
impose Clay’s ACCA-enhanced sentence. In the face of this ambiguity, Clay
asks this court to reverse the district court and vacate his enhanced sentence.
      In making this argument, Clay returns this court to our prior discussion
of the appropriate standard of proof. On the record before this court, Clay has
shown that the sentencing court “may have” relied on the residual clause to
enhance his sentence. Therefore, if this court adopts the standard articulated
by the Fourth and Ninth Circuits, Clay will have sustained his burden of proof
and the district court will have had jurisdiction over his successive § 2255
petition. However, Clay has not shown that the sentencing court “more likely
than not” relied on the residual clause. Mississippi Code Annotated § 97-17-
19 (1972) appears to have been the primary statute criminalizing “house
burglary” in 1982—as indicated in part by its title: “Burglary: Breaking and
Entering Dwelling”—which makes it just as likely that the district court
correctly identified § 97-17-19 as the statute of conviction as that it incorrectly
identified it.   Moreover, the PSR’s descriptions of Clay’s “house burglary”
convictions suggest that § 97-17-19 was the likely statute of conviction, and
Clay has pointed to nothing in the record indicating otherwise. See Wiese,
896 F.3d at 725 (declaring that this court may look to the PSR “[i]n
determining potential reliance on the residual clause by the sentencing court”).
Therefore, if this court adopts the standard articulated by the First, Third,
Sixth, Eighth, Tenth, and Eleventh Circuits, Clay will have failed to prove that
his successive § 2255 petition relies on Johnson and the district court will have
lacked jurisdiction. Cf. Beeman, 871 F.3d at 1224–25 (explaining that if “it is
unclear from the record whether the sentencing court had relied on the
residual clause,” the prisoner—who bears the burden of proof—“loses”)
(internal quotation marks and citations omitted).




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                                      No. 17-60538
       Faced with a situation where the standard of proof makes a difference to
the outcome, 3 this court sides with the majority of circuits and holds that a
prisoner seeking the district court’s authorization to file a successive § 2255
petition raising a Johnson claim must show that it was more likely than not
that he was sentenced under the residual clause. This standard best “comports
with the general civil standard for review and with the stringent and limited
approach of [the Antiterrorism and Effective Death Penalty Act] to successive
habeas applications.” Wiese, 896 F.3d at 724; cf. Wright v. United States,
624 F.2d 557, 558 (5th Cir. 1980) (“In a section 2255 motion, a petitioner has
the burden of sustaining his contentions by a preponderance of the evidence.”).
       Applying that standard to the facts in this case, Clay has failed to show
by a preponderance of the evidence that he was sentenced under the residual
clause and, thus, that his claim relies on Johnson. As a result, the district
court lacked jurisdiction over his successive § 2255 petition. Moreover, because
the district court lacked jurisdiction, there is no occasion for this court to
address the district court’s alternate holding on the merits or the second issue
identified in the COA. See Key, 205 F.3d at 774.
                                    CONCLUSION
       For the foregoing reasons, the district court’s order dismissing Clay’s
successive § 2255 petition for lack of jurisdiction is AFFIRMED.




       3 The ambiguity in the record distinguishes this case from Wiese and Taylor, where
this court was able to resolve the appeal without deciding on a standard of proof. See Wiese,
896 F.3d at 725 (holding that the defendant failed to show that his claim relied on Johnson
under either standard); Taylor, 873 F.3d at 482 (holding that the defendant successfully
showed that his claim relied on Johnson under both standards).
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