                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LINZEY SMITH,                                    No.   15-73591

              Petitioner,                        D.C. No. 2:04-CR-00096-JLQ
                                                 Eastern District of Washington,
 v.                                              Spokane

UNITED STATES OF AMERICA,
                                                 ORDER*
              Respondent.


                    Appeal from the United States District Court
                      for the Eastern District of Washington

                     Argued and Submitted December 5, 2016
                              Seattle, Washington

Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.

      Smith once again requests authorization to file a second or successive

motion under 28 U.S.C. § 2255 to vacate his sentence as an armed career criminal

pursuant to 18 U.S.C. § 924(e)(2)(B)(ii). Although Smith claims eligibility for

relief under Johnson v. United States, 135 S. Ct. 2551 (2015), we are not persuaded

that Smith’s motion relies on Johnson. We already decided that “[b]ecause the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
record shows that petitioner’s sentence was not enhanced by the residual clause of

the Armed Career Criminal Act, Johnson does not apply.” Order, Smith v. United

States, No. 15-72688 (9th Cir. filed Oct. 16, 2015) (denying application to file

second or successive § 2255 motion).

      Instead, Smith is again attacking the application of the modified categorical

approach to his predicate Washington second-degree burglary convictions under

Descamps v. United States, 133 S. Ct. 2276 (2013). To timely attack the

application of the modified categorical approach, Smith must have done so no

more than one year after his conviction as an armed career criminal became final.

28 U.S.C. § 2255(f)(1). He did not. See Memorandum in Support of Motion to

Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, Smith v.

United States, No. 2:04-CR-00096-JLQ (E.D. Wash. Mar. 26, 2007), ECF No. 71.

Now, nearly a decade later, Smith may file a second or successive § 2255 motion

by demonstrating that he may benefit from “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C.

§ 2255(h)(2). Because Descamps did not announce a new rule of constitutional

law, United States v. Ezell, 778 F.3d 762, 766 (9th Cir. 2015), Smith fails to satisfy

the prerequisites for filing a second or successive § 2255 motion.




                                          2
      The motion requesting authorization to file a second or successive

application for habeas corpus is DENIED.




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