                                                                               FILED
                                                                   United States Court of Appeals
                                      PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      March 6, 2018

                                                                       Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-6041

RICHARD ANTHONY TRENT,

      Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                        for the Western District of Oklahoma
                 (Nos. 5:12-CR-00053-HE-1 and 5:16-CV-00142-HE)
                        _________________________________

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

Timothy W. Ogilvie, Assistant United States Attorney (Mark A. Yancey, United States
Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.
                        _________________________________

Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________

      Richard Trent was convicted for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under the Armed Career

Criminal Act (“ACCA”) to 196 months in prison. On direct appeal, Mr. Trent argued

that the ACCA enhancement should not have applied to him because his past conviction
under Oklahoma’s general conspiracy statute was not a serious drug offense under the

ACCA. We rejected this argument and affirmed. United States v. Trent, 767 F.3d 1046,

1063 (10th Cir. 2014) (“Trent I”).1

       Mr. Trent then filed a 28 U.S.C. § 2255 motion to challenge his sentence. While

that motion was pending, the Supreme Court decided Mathis v. United States, 136 S. Ct.

2243 (2016). In Mathis, the Court abrogated one of the two rationales we used to affirm

Mr. Trent’s sentence. Id. at 2251 n.1. Mr. Trent argued that Mathis entitled him to relief.

The district court denied his motion on several grounds. United States v. Trent, No. CIV-

16-0142-HE, 2016 WL 7471346 (W.D. Okla. Dec. 28, 2016) (“Trent II”).2 The court

also granted a certificate of appealability (“COA”).

       Exercising jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253, we affirm

the denial of Mr. Trent’s § 2255 motion under the law of the case doctrine. Although

Mathis undercut one of this court’s rationales to affirm Mr. Trent’s sentence, it did not

affect our alternative rationale to affirm.

                                     I. BACKGROUND

                                   A. Factual Background

       When Mr. Trent, Lloyd Robinson, and Angela Keller visited Michael Kimberly’s

home in Geronimo, Oklahoma in the summer of 2012, a neighbor called 911 to report

that someone holding a gun outside Mr. Kimberly’s house got into a green Volvo and

       1
           We refer to this court’s 2014 decision on Mr. Trent’s direct appeal as “Trent I.”
       2
        We refer to the district court’s 2016 decision denying his § 2255 motion as
“Trent II.”

                                               2
drove away. Trent I, 767 F.3d at 1048. After an officer stopped the car, he encountered

the three individuals, and Mr. Trent was sitting in the back seat. The officer searched the

car and found a handgun wedged behind an armrest in the back seat. Id. Mr. Robinson

was released, but Mr. Trent and Ms. Keller were arrested on account of their prior felony

convictions. Id.

                              B. District Court Proceedings

       A jury convicted Mr. Trent on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing the district court considered

whether Mr. Trent’s sentence should be enhanced under the ACCA. A § 922(g)(1)

conviction generally carries a 10-year maximum sentence, 18 U.S.C. § 924(a)(2), but the

ACCA provides for a minimum 15-year sentence if the defendant has three qualifying

prior convictions for either a “violent felony” or a “serious drug offense.” 18 U.S.C.

§ 924(e)(1). Mr. Trent admitted that he had two previous convictions that would qualify

as serious drug offenses under the ACCA. He argued, however, that his 2007 conviction

under Oklahoma’s general conspiracy statute did not qualify as a serious drug offense.

The district court disagreed and sentenced him to 196 months in prison and five years of

supervised release.

                                   C. Direct Appeal

       On appeal, Mr. Trent argued that his sentence should not have been enhanced

under the ACCA. Trent I, 767 F.3d at 1051. This court affirmed.

       The panel explained the analytical framework to determine whether Mr. Trent’s

Oklahoma conspiracy conviction should qualify under the ACCA as a serious drug

                                             3
offense. It said that under the “categorical approach,” a sentencing court “looks only at

the elements of the statute under which the defendant was convicted” and compares them

to the elements in the ACCA statutory definition of “serious drug offense.” Id. at 1051-

52.3 If those elements “satisfy the definition of serious drug offense in the ACCA,” then

the conviction qualifies. Id. at 1058 (emphasis omitted). A “conviction [under a state

statute] qualifies [as an ACCA predicate offense] only if all violations of the statute

would qualify, regardless of ‘how [the specific] offender might have committed it on a

particular occasion.’” Id. at 1052 (quoting Begay v. United States, 553 U.S. 137, 141

(2008)).

       The panel further explained that when the prior conviction statute is “divisible,”

the court uses the “modified categorical approach” to determine which part of the statute

was violated. Id. at 1052. A statute is divisible “when it ‘sets out one or more elements

of the offense in the alternative—for example, stating that burglary involves entry into a

building or an automobile.’” Id. (quoting Descamps v. United States, 570 U.S. 254, 257

(2013) (emphasis in original)). A court may then “examine[] certain definitive

underlying documents to determine which alternative the defendant’s conviction

satisfied.” Id. It next applies the categorical approach to the applicable alternative to

determine whether the offense is an ACCA predicate.

       The Trent I panel then began its analysis as follows:

       3
         Under the ACCA, a state law conviction counts as a “serious drug offense” if it
“involv[es] manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

                                              4
              Oklahoma’s general conspiracy statute states: ‘If two or more
              persons conspire . . . [t]o commit any crime[,] . . . they are
              guilty of a conspiracy.’ Okla. Stat. Ann. tit. 21, § 421(A)
              (1999). Obviously, the statute could be violated in many
              ways that have nothing to do with drugs.

Id. (alterations in original). The “difficult” question was whether the statute is divisible

and, if so, whether the “modified categorical approach” could identify the nature of the

underlying offense. Id. For two separate reasons, we decided the statute is divisible and

then employed the modified categorical approach.

       Under our first rationale, we determined the Oklahoma conspiracy statute is

divisible based on a broad understanding of how to apply Descamps to the Oklahoma

conspiracy statute. As previously noted, the statute makes it a crime for “two or more

persons to conspire to commit a crime.” The word “crime” refers to the criminal offenses

in the Oklahoma criminal code. Id. at 1057. The statute therefore can be violated by

engaging in numerous types of criminal activity. In Trent I, we said that “[b]y cross-

referencing the state’s criminal code, the general conspiracy statute lays out ‘multiple,

alternative versions of the crime’ of conspiracy, according to what crime provides the

conspiracy’s object.” Id. (quoting Descamps, 570 U.S. at 262). This cross-referencing

produces “alternative statutory phrases,” which would be “alternative elements” under

Descamps, rendering the statute divisible even if the “alternative statutory phrases” are

different means to violate the statute rather than elements in the “full” or “traditional

sense.” Id. at 1060-61.4 Put another way, the Trent I court said the conspiracy statute is


       4
        Trent I cited the Supreme Court’s decision in Richardson v. United States as
providing a definition for “traditional element”: “[c]alling a particular kind of fact an
                                              5
divisible whether the “alternative statutory phrases” are traditional elements or merely

means.

       Under our second rationale in Trent I, we found “Oklahoma’s conspiracy statute is

divisible and the modified categorical approach is appropriate” “even if the Supreme

Court [in Descamps] was using the term elements in its traditional sense.” Id. at 1063.

Based on our analysis of Oklahoma case law, the state’s uniform jury instructions, and a

case about the federal continuing-criminal-enterprise statute, we concluded that a jury

must agree unanimously on the object of the conspiracy to convict under the statute. Id.

at 1061-62. Accordingly, we held the conspiracy statute contained alternative traditional

elements and is therefore divisible. Id. at 1063.

       Under either the first or second rationale, once the Trent I court determined the

Oklahoma conspiracy statute is divisible, it then could employ the modified categorical

approach and examine the record to ascertain the crime underlying Mr. Trent’s Oklahoma

conspiracy conviction. Because Mr. Trent had pled guilty to “conspiracy to manufacture

methamphetamine,” the crime categorically fit the ACCA’s serious drug offense

definition. Id. at 1057. We therefore held that Mr. Trent’s conspiracy conviction was an

ACCA predicate offense. Id.




‘element’ carries certain legal consequences . . . [For example,] a jury . . . cannot convict
unless it unanimously finds that the Government has proved each element.” 526 U.S.
813, 817 (1999).

                                              6
       Because Mr. Trent had three ACCA-eligible convictions under either the first or

the second rationale, we found that his ACCA sentence enhancement was proper and

affirmed. Id. at 1063.

                      D. Original Section 2255 Motion and Mathis

       Mr. Trent next filed a pro se § 2255 motion challenging his sentence on three

grounds. First, he argued that his sentence was unconstitutional under Johnson v. United

States, 135 S. Ct. 2551 (2015), because that decision’s invalidation of the ACCA’s

residual clause defining violent felony should also apply to the ACCA’s definition of

serious drug offenses. Second, he alleged his sentence was substantively unreasonable

and thus invalid under Alleyne v. United States, 570 U.S. 99 (2013), because the judge,

rather than a jury, found a fact—his past conviction—that increased his sentence. Third,

he argued his appellate counsel was ineffective by failing to amend his direct appeal to

account for new relevant case law. Under “Supporting facts” on his first ground, Mr.

Trent stated that the Oklahoma general conspiracy statute does not qualify as a predicate

for ACCA enhancement. He repeatedly cited Descamps.

       While Mr. Trent’s motion was pending, the Supreme Court decided Mathis. In

Mathis, the Court explicitly abrogated Trent I’s first rationale, 136 S. Ct. at 2251 n.1,

emphasizing that “elements”—for the purpose of determining a statute’s divisibility—

should be understood in the traditional sense: “Elements are the constituent parts of a

crime’s legal definition—the things the prosecution must prove to sustain a conviction.

… At a trial, they are what the jury must find beyond a reasonable doubt to convict the

defendant. . . .” Id. at 2248 (quotation marks omitted). If the alternative statutory phrases

                                              7
are only different “means” of committing the same offense under a statute, that statute is

not divisible. Id. at 2264. If a sentencing court is “faced with an alternatively phrased

statute,” it must determine whether the relevant “listed items” are actually elements. Id.

       Mathis offered guidance on how to make the elements-versus-means

determination. A state court decision can “definitively answer[ ] the question,” or “the

statute on its face may resolve the issue.” Id. When state law does not resolve the

question, courts may “peek at the record documents” for help: indictments, jury

instructions, plea colloquies, plea agreements, and the like. Id. at 2256, 2257 n.7

(quotations and alterations omitted). The Court also noted that “such record materials

will not in every case speak plainly,” and when they do not, a sentencing judge will not

be able to satisfy “Taylor’s demand for certainty”5 when determining whether a

defendant was convicted of a[n ACCA] offense.” Id. at 2257. But, it added, “that kind of

indeterminacy should prove more the exception than the rule.” Id.

                   E. Amended § 2255 Motion and Denial of Motion

       Mr. Trent received appointed counsel, who filed a “Revision to Previously Filed

§ 2255 Application for Relief” (“revised motion”) shortly after Mathis was decided. The

revised § 2255 motion focused on showing the text of the Oklahoma conspiracy statute

did not qualify for ACCA enhancement as a drug offense or a violent felony, and it cited

Descamps and Mathis.


       5
        Taylor v. United States, 495 U.S. 575 (1990), held that a court may apply the
categorical approach only to those components of a state crime that were necessary for
the conviction of that crime (i.e., facts the jury had to find beyond a reasonable doubt).

                                              8
       The district court denied Mr. Trent’s § 2255 motion. Trent II, No. CIV-16-0142-

HE, 2016 WL 7471346 (W.D. Okla. Dec. 28, 2016). It concluded that Mr. Trent’s

original pro se Johnson, Alleyne, and ineffective-assistance-of-counsel arguments lacked

merit. It also rejected what it construed as Mr. Trent’s Mathis “claim” because (1) the

Mathis claim was untimely since it was raised more than a year after his conviction had

become final; and (2) the Mathis issue had been decided on direct appeal, our disposition

of it stood as law of the case, and no exceptions to the law of the case doctrine applied.

       The district court also evaluated the “substantive merits of the motion.” Id. at *3.

It found that Oklahoma’s conspiracy statute is divisible because the object of a given

conspiracy is a traditional element of the crime. The court thus applied the modified

categorical approach, determined the elements of Mr. Trent’s conspiracy offense to

include manufacture of methamphetamine, and compared them with the ACCA’s serious

drug offense definition to find that the ACCA’s definition was satisfied. Id. at *4.

       The district court accordingly denied Mr. Trent’s § 2255 motion to vacate his

sentence. It also granted his request for a COA. Mr. Trent timely appealed.

                                    II. DISCUSSION

       After describing our standard of review, we address the timeliness of Mr. Trent’s

Mathis claim and conclude, contrary to the district court, that the claim was timely. We

then turn to the law of the case and determine that Trent I’s second rationale on direct

appeal holding that the Oklahoma conspiracy statute is divisible and that Mr. Trent’s

prior conviction is a serious drug offense under the ACCA is controlling in this § 2255

proceeding. No law of the case exception applies because Mathis was not an

                                             9
“intervening change” in controlling law with respect to the second rationale in Trent I.

We therefore affirm on this ground and do not review the district court’s merits analysis

of the Mathis claim.

                                   A. Standard of Review

       On an appeal arising from “the denial of a § 2255 motion for post-conviction

relief, we review the district court’s findings of fact for clear error and its conclusions of

law de novo.” United States v. Cruz, 774 F.3d 1278, 1284 (10th Cir. 2014) (quoting

United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)). Whether a prior

conviction constitutes a “serious drug offense” under the ACCA presents a question of

statutory interpretation, and we review the district court’s conclusion de novo. United

States v. Johnson, 630 F.3d 970, 975 (10th Cir. 2010).

                                  B. Timeliness of Mathis Claim

       The district court held that Mr. Trent’s Mathis claim was untimely because he

attempted to add it after the one-year statute of limitations had expired. Trent II, 2016

WL 7471346, at *3; see 28 U.S.C. § 2255(f). The court also said that “assertion of an

additional claim may also implicate the rule against second and successive petitions.” Id.

at *3 n.3. Although we ultimately affirm the district court’s denial of relief, we disagree

with its timeliness analysis.

1. Additional Procedural History

       Shortly after he was appointed, Mr. Trent’s counsel filed a “Revision to Previously

Filed § 2255 Application for Relief” (“revised motion”), calling it “[a] supplement to

[Mr. Trent’s] previously filed petition” and stating its purpose was “to amplify

                                              10
specifically the application of the state conspiracy conviction to enhance the sentence.”

ROA, Vol. 1 at 44. It analyzed the Oklahoma conspiracy statute, described the

categorical approach, drew comparisons with the federal conspiracy statute, and

concluded that Mr. Trent was previously convicted under a “general felony” statute and

not a drug offense statute. Id. at 44-51. Only on page 8 of this 12-page document was

Mathis mentioned: “To attempt to determine the nature of the conspiracy by looking to

its object violates . . . Descamps . . . and more recently . . . Mathis. Id. at 51. Mathis was

not otherwise cited or discussed.

       In its response to the revised motion, the Government argued that Mr. Trent could

not use Mathis to reopen the issue settled in his direct appeal because Mathis did not

contradict one of the rationales this court relied on to hold that his prior conviction was a

serious drug offense. Id. at 61-62. It is not clear whether the government regarded the

revised motion as an attempt to amend the original by adding a Mathis claim or simply to

bring Mathis to the district court’s attention as supplemental authority.

       In its order denying relief, the district court regarded the revised motion as having

raised a Mathis claim: “[Mr.] Trent’s final claim is based on Mathis.” Trent II, WL

7471346, at *2. The court said Mr. Trent’s new counsel “sought leave to file an amended

motion”; that the “motion for leave referenced Johnson, but did not mention Mathis”; and

that the court “specifically directed . . . submission of an amended claim under Johnson,

with no mention of Mathis.” Id. at *3. It said Mathis first appeared in the “amended

motion.” Id. For these reasons, the court concluded that “the Mathis claim was raised

after expiration of the one year limitations period.” Id.

                                              11
2. Legal Background

       A habeas petition “may be amended or supplemented as provided in the rules of

procedure applicable to civil actions.” 28 U.S.C. § 2242. Fed. R. Civ. P. 15(c)(1)(B)

provides that “[a]n amendment to a pleading relates back to the date of the original

pleading when the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in the original pleading.”

We review de novo whether Mr. Trent’s Mathis claim related back to his original § 2255

motion. See Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir. 2004).

       In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court held that “[a]n

amended habeas petition . . . does not relate back . . . when it asserts a new ground for

relief supported by facts that differ in both time and type from those the original pleading

set forth.” Id. at 650. Although this court said that relation back is proper “only if . . . the

proposed amendment does not seek to add a new claim or to insert a new theory into the

case,” United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (quoting

United States v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000)),6 Mayle clarified that, “So

long as the original and amended petitions state claims that are tied to a common core of

operative facts, relation back will be in order.” 545 U.S. at 664.7

       6
       The Thomas decision excluded from relation back only “an entirely new claim or
new theory of relief.” 221 F.3d at 436 (emphasis added).
       7
         The Court cited and quoted 3 James Wm. Moore, et al., Moore’s Federal
Practice ¶ 15.19[2] (3d ed. 2004), for the proposition that “relation back [is]
ordinarily allowed ‘when the new claim is based on the same facts as the original
pleading and only changes the legal theory.’” 545 U.S. at 664 n.7.


                                              12
       Moreover, in Espinoza-Saenz, we said the proposed amendment there attempted to

add a claim that was “totally separate and distinct, in both time and type from those

raised in [the] original motion.” 235 F.3d at 505 (quotation marks omitted); see also

Milton v. Miller, 812 F.3d 1252, 1264 (10th Cir. 2016) (holding habeas petitioner’s

ineffective assistance of trial counsel claim “ha[d] a dramatically different factual

predicate” than his original ineffective assistance of appellate counsel claim and therefore

could not relate back).

3. Analysis

       The district court thought Mr. Trent attempted to raise a new claim under Mathis

that was untimely. We conclude otherwise—the Mathis claim related back to his original

§ 2255 motion and therefore was timely.

       The revised motion focused on the text of the statute and argued that Mr. Trent’s

prior conviction did not qualify as an ACCA predicate drug offense. To hold otherwise,

it contended, would violate Descamps and Mathis, mentioning the latter only in passing

as newly decided. The revised motion provided additional analysis to support the pro se

original motion, including citation of Mathis to bolster Descamps, which Mr. Trent had

repeatedly cited in his original motion. See ROA, Vol. 1 at 31, 34, 41, and 42. Although

the pro se original motion and the revised motion may not completely overlap, “[a]

document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations and citations

omitted).

                                             13
       The reference to Mathis in the revised motion was “tied to a common core of

operative facts” underlying the original motion—Mr. Trent’s prior conviction under the

Oklahoma conspiracy statute and its fit with the ACCA’s definition of serious drug

offense. Mayle, 545 U.S. at 664.8 The facts supporting the Mathis claim did not “differ

in both time and type from those the original pleading set forth.” Id. at 650. The mention

of Mathis in the revised motion was not “totally separate and distinct, in both time and

type from [the claims] raised in [the] original motion.” Espinoza-Saenz, 235 F.3d at 505

(quotation omitted). The Mathis reference in the revised motion related back to the

original § 2255 motion, and the Mathis claim was thus timely.

       As to the district court’s observation about “second or successive § 2255

petitions,” Trent II, WL 7471346 at *3 n.3, if the court thought the revised motion should

be construed as a second or successive motion, we would disagree and instead concur

with our sibling circuits that a pre-judgment request to add a claim to a § 2255 motion is

not a second or successive motion; it is a motion to amend and should be considered

under Federal Rule of Civil Procedure 15. See Clark v. United States, 764 F.3d 653, 658-

60 (6th Cir. 2014); United States v. Sellner, 773 F.3d 927, 931 (8th Cir. 2014); Littlejohn

v. Artuz, 271 F.3d 360, 362-63 (2d Cir. 2001); Johnson v. United States, 196 F.3d 802,

804-05 (7th Cir. 1999); see also Brian R. Means, Federal Habeas Manual § 11:69 (2017)

(“Before judgment, the petitioner may amend his petition to include additional claims

       8
         In addition to the references to Descamps, Mr. Trent’s pro se § 2255 motion
stated under the “Supporting facts” section of “Ground One”: “Oklahomas[sic] ‘General
Conspiracy Statue[sic]’ does not qualify as predicate for ACCA enhancement.” ROA,
Vol. 1 at 13.

                                            14
(subject to the restrictions imposed by Federal Rule of Civil Procedure 15). The

amended petition does not count as an application for purposes of the ‘second or

successive’ petition rule.”).

       The district court more likely meant that if an amendment asserts a claim that is

deemed untimely, it would need to be pursued in a second or successive petition, and the

district court would lack jurisdiction to consider it absent this court’s authorization. See

28 U.S.C. § 2255(h) (requiring authorization from the circuit court to invoke federal

jurisdiction over a second or successive § 2255 motion); United States v. Wetzel-Sanders,

805 F.3d 1266, 1269 (10th Cir. 2015) (explaining that in the absence of circuit court

authorization, the “district court lacks subject matter jurisdiction to decide the merits of”

a second or successive § 2255 motion). But when, as here, the amendment related back

to the original § 2255 motion, no second or successive issue was implicated.

       In sum, we disagree with the district court that Mr. Trent amended his original

§ 2255 motion to assert an untimely claim based on Mathis. If the district court had been

correct, we would need to stop here because, as explained above, it would have lacked

jurisdiction over an unauthorized second or successive § 2255 motion. Instead, we next

address the parties’ arguments regarding the law of the case doctrine.

                                        C. Law of the Case

       The following discussion presents legal background on the law of the case

doctrine and its exceptions. We then consider Mr. Trent’s arguments and conclude that

Mathis was not an “intervening change in the law.” As a result, this court’s second

rationale on Mr. Trent’s direct appeal—holding that the Oklahoma conspiracy statute is

                                             15
divisible and that his conviction under that statute was a serious drug offense—stands as

law of the case, precluding the § 2255 relief he seeks here.

1. Law of the Case Generally

       Under the “law of the case” doctrine, “when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the same

case.” United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quoting Arizona

v. California, 460 U.S. 605, 618 (1983)); see also Kennedy v. Lubar, 273 F.3d 1293,

1298–99 (10th Cir. 2001) (“‘Law of the case rules have developed to maintain

consistency and avoid reconsideration of matters once decided during the course of a

single continuing lawsuit’ . . . [I]t is not uncommon for [an] ‘appellate court . . . [to]

adhere [ ] to prior rulings as the law of the case, at times despite substantial reservations

as to the correctness of the ruling.’” (quoting 18 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981)).9

       “[U]nder the law-of-the-case doctrine, courts ordinarily would refuse to reconsider

arguments presented in a § 2255 motion that were raised and adjudicated on direct

appeal.” Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013); see also id. (reading

Davis v. United States, 417 U.S. 333, 342 (1974), as “noting that the law-of-the-case




       9
         “[T]he ‘law of the case’ doctrine is not an inexorable command,” White v.
Murtha, 377 F.2d 428, 431 (5th Cir.1967), but “only a rule of practice in the courts and
not a limit on their power.” Monsisvais, 946 F.2d at 116. The doctrine “directs a court’s
discretion, [but] does not limit the tribunal’s power.” Arizona, 460 U.S. at 618.
                                              16
doctrine typically precludes consideration of issues in a § 2255 proceeding that were

previously decided on direct appeal”).10

2. Exceptions to Law of the Case

       Courts have recognized exceptions to the law of the case doctrine in “three

exceptionally narrow circumstances”: “(1) when the evidence in a subsequent trial is

substantially different; (2) when controlling authority has subsequently made a contrary

decision of the law applicable to such issues; or (3) when the decision was clearly

erroneous and would work a manifest injustice.” United States v. Alvarez, 142 F.3d

1243, 1247 (10th Cir. 1998) (paragraph breaks omitted). The second exception, also

       10
          In unpublished § 2255 cases in which the movant sought relief on a claim that
was raised and rejected previously on direct appeal, we have explicitly denied the claim
as “procedurally barred.” See, e.g., United States v. DeClerck, 252 F. App’x 220, 222
(10th Cir. 2007); see also United States v. Temple, 480 F. App’x 478, 480 (10th Cir.
2012) (holding the district court correctly denied relief based on procedural bar). We
have implied the same in published decisions. See, e.g., United States v. Nolan, 571 F.2d
528, 530 (10th Cir. 1978) (stating that issues raised in a § 2255 motion that were already
decided on direct appeal will generally not be reconsidered); Baca v. United States, 383
F.2d 154, 156 (10th Cir. 1967) (same).
       It appears that Mr. Trent’s claim based on Mathis could be resolved on this
ground. Indeed, in its response brief opposing § 2255 relief in district court, the
Government argued the claim was “procedurally barred.” ROA, Vol. 1 at 60, 62. When
the district court denied relief, it described this argument as based on “the general rule,
sometimes referred to as the ‘law of the case’ rule.” Trent II, 2016 WL 7471346 at *2.
On appeal, the Government argues the Mathis issue in terms of law of the case rather
than procedural bar. Aplee. Br. at 10-22. Mr. Trent argues that under Abernathy, which
applied law of the case in a § 2255 proceeding, his Mathis issue should proceed because
of an intervening change in law. Aplt. Br. at 22. Given the way the parties have framed
the Mathis issue on appeal, we follow the approach used in Abernathy, and we apply law
of the case analysis to Mr. Trent’s Mathis claim.
       We note the Eleventh Circuit has decided that using the procedural bar rule is
more appropriate than the law of the case doctrine when a § 2255 motion raises an issue
already decided on direct appeal. See Stoufflet v. United States, 757 F.3d 1236, 1239-40
(11th Cir. 2014). We see no need to make a choice between the two approaches here.

                                            17
called an “intervening change in controlling law,” applies in the § 2255 context. Davis,

417 U.S. at 342 (intervening change in law may allow for departure from law of the case

in a § 2255 motion); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (per

curiam) (“Absent an intervening change in the law of a circuit, issues disposed of on

direct appeal generally will not be considered on a collateral attack by a motion pursuant

to § 2255.”).11 An intervening change in the law allows reconsideration of a previous

decision in the same case only to the extent the change affects the previous decision. See

McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 350-51 (D.C. Cir. 1995)

(“Because this portion of our prior opinion is unaffected by [the intervening change in the

law], it remains the law of the case, not subject to reconsideration in this

second . . . appeal.”).

3. Analysis: No “Intervening Change” in the Law as to Trent I’s Second Rationale

       Mr. Trent relies only on the second exception to the law of the case doctrine—

intervening change in the law—and does not argue the other exceptions apply. He

contends that Mathis changed the law not only with respect to the first rationale in

Trent I, but also the second because: (a) Mathis required courts to be “certain” that a

provision in a criminal statute is an element; and (b) Trent I did not reach “certainty” in

finding that the object of a conspiracy is a traditional element in the Oklahoma general

conspiracy statute. See, e.g., Aplt. Br. at 23-24.


       11
         “[T]he law-of-the-case doctrine and binding circuit precedent function similarly
from the perspective of a court addressing an initial § 2255 motion; typically, in both
circumstances, the court is bound by a previous court’s decision unless there has been an
intervening change in the law.” Abernathy, 713 F.3d at 550 n.11.
                                             18
       We affirm because Mathis did not create an intervening change in the law with

respect to our second rationale in Trent I. To do so, it would have needed to announce “a

contrary decision of the law applicable” to the relevant issue. Alvarez, 142 F.3d at 1247.

As we explain further below, (a) Mathis did not create a certainty standard that differed

from Taylor or Shepard, and (b) Trent I was not “contrary” to, but instead was consistent

with, Mathis on certainty.

       a. No new certainty standard in Mathis

       Mathis did not create a new standard for “certainty.” The “certainty” standard to

determine whether an offense qualifies for ACCA enhancement derives from Taylor v.

United States, 495 U.S. 575 (1990), and has been followed in Supreme Court and Tenth

Circuit cases for over 25 years. Although Taylor did not use the word “certainty,” it held

that an offense qualifies for the ACCA “if either its statutory definition substantially

corresponds to [the] ‘generic’ [ACCA definition of the crime], or the charging paper and

jury instructions actually required the jury to find all the elements of [the ACCA

definition] in order to convict the defendant.” 495 U.S. at 602 (emphasis added). In

2005, the Supreme Court described this holding as “Taylor’s demand for certainty when

identifying a[n ACCA-eligible] offense.” Shepard v. United States, 544 U.S. 13, 21

(2005). The Tenth Circuit has followed and applied the Taylor certainty standard in

ACCA cases. See e.g. United States v. Huizar, 688 F.3d 1193, 1195 (10th Cir. 2012)

(“And certain we must be: whether we use a categorical or the modified categorical

approach, our precedent requires the government to show that Mr. Huizar’s conviction

‘necessarily’ qualifies as ‘generic’ burglary before . . . the ACCA[’s] . . . sentencing

                                             19
enhancement may be triggered.” (citing Taylor, 495 U.S. at 602; Shepard, 544 U.S.

at 16, 21, 24)).

       Mathis comports with the Taylor certainty standard. Mathis mentions “certainty”

only briefly. The Court said, in the context of determining “whether the listed items are

elements or means” in “an alternatively phrased statute,” that a court can look at state

court decisions, the statute on its face, or the record of the prior conviction. 136 S. Ct.

at 2256-57. As to the record of the prior conviction, the Court noted: “Of course, such

record materials will not in every case speak plainly, and if they do not, a sentencing

judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining

whether a defendant was convicted of a generic offense.” Id. at 2257 (quoting Shepard,

544 U.S. at 21). The Court then immediately said: “But between those documents and

state law, that kind of indeterminacy should prove more the exception than the rule.” Id.

Mathis thus referenced an already-established certainty standard and gave additional

commentary on the likelihood of reaching certainty when consulting record documents.

       b. Trent I consistent with Mathis on certainty

       Nothing in Trent I’s second rationale contravenes Mathis regarding certainty.

Trent I did not address certainty directly, but its approach under the second rationale to

determine the divisibility of the Oklahoma general conspiracy statute was consistent with

Mathis. Trent I analyzed, under the Oklahoma law, whether the object of a conspiracy is

an element in the conspiracy statute. It did not find any case exactly on point but found

persuasive evidence in case law and jury instructions. 767 F.3d at 1061-62. Mathis



                                              20
included these types of sources in its blueprint to assess a statute’s divisibility. Mathis,

136 S. Ct. at 2256-57.

       Mr. Trent argues that Trent I ran afoul of Taylor and Mathis because its

determination of the divisibility question did not have requisite “certainty.” See, e.g.,

Aplt. Br. 23-24. But he fails to explain why Trent I’s reading of the Oklahoma cases and

jury instructions is incorrect or insufficient. Instead, Mr. Trent argues that Trent I’s use

of words like “suggestive” and “appears” reflects uncertainty. Id. at 24.

       In that regard, Mr. Trent misunderstands what is necessary to find divisibility.

The divisibility analysis contemplates a collective assessment of case law and other

materials. See United States v. Titties, 852 F.3d 1257, 1271 (2017) (“On their own, none

of these state law sources conclusively resolves the means/elements question, but

together they all but establish that [the statute’s] purpose alternatives are means.”); id.

at 1272 n.19 (“Mathis unambiguously instructs federal courts to settle, if possible, the

means/elements issue when applying the ACCA even if there is no on-point state

decision.”). The Trent I court’s cautious language does not depart from Taylor or Mathis.

It analyzed Mathis-approved materials to arrive at a conclusion.12

       Even if Trent I’s analysis of divisibility fell short of the certainty required under

Taylor and Mathis, it does not follow that Mathis created an intervening change in the

law. This is so because, as discussed above, Mathis did not alter case law precedent

       12
         Mr. Trent correctly points out that Trent I’s discussion of federal continuing-
criminal-enterprise case law, 767 F.3d at 1062, falls outside Mathis’s listing of state
materials to determine the divisibility of a state statute. But it does not follow that the
court was uncertain about its divisibility determination based on the state materials. The
court noted that that federal statutory analysis was not controlling. Id.
                                              21
established in Taylor and its progeny. And even if this panel may have reached a

different conclusion on divisibility than the Trent I panel, the latter’s decision is law of

the case that we must accept.

       As noted above, Mr. Trent argues only the intervening-change-in-law exception to

the law of the case. As Mr. Trent himself asserts, his appeal rises or falls with his

intervening-change argument.13

                                     III. CONCLUSION

       In Trent I, we held the Oklahoma conspiracy statute is divisible, that Mr. Trent’s

previous conspiracy offense under the modified categorical approach is a serious drug

offense, and that he qualified for a sentencing enhancement under the ACCA. This

holding is the law of the case unless an exception to that doctrine applies. As we have

shown, Mathis did not create an intervening change in the law relative to our second

rationale in Trent I. Because Mr. Trent has not argued for any other exception to law of

the case, we affirm the district court’s denial of his § 2255 motion.14




       13
         See, e.g., Aplt. Br. at 22 (“[The Trent I decision on divisibility], right or wrong,
would ordinarily prevent the divisibility conclusion from being revisited in a later action
under 28 U.S.C. 2255. But this restriction does not apply when there is an intervening
change in the law.”); id. at 35-36 (“To be sure, before Mathis issued, Mr. Trent could not
have obtained relief. The district court, and this court too, would have been bound by this
court’s decision in Mr. Trent’s direct appeal. It was only after the intervening decision in
Mathis that the district court and this court could reach a different conclusion.”).
       14
         Because we affirm on this ground, we need not address the district court’s
substantive merits analysis.

                                              22
