                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MATTHEW C. DAVIDSON,                            No.    17-35264

                Petitioner-Appellant,           D.C. No. 3:16-cv-05500-BHS

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                       Benjamin H. Settle, District Judge

                          Submitted November 9, 2018**
                              Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and COLLINS,*** District
Judge.

      Matthew Davidson appeals the district court’s denial of his second petition

for habeas relief under 28 U.S.C. § 2255. Because the parties are familiar with the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
facts, we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C.

§§1291 and 2253, and we affirm.

      As a threshold matter, we must decide whether Davidson’s petition is timely.

That is, we must decide whether it relies on the new rule of constitutional law

announced in Johnson v. United States, 135 S. Ct. 2551 (2015), which was made

retroactive to cases on collateral review by Welch v. United States, 136 S. Ct. 1257

(2016). See 28 U.S.C. § 2255(h)(2). In this endeavor we are guided by the

framework set forth in United States v. Geozos, 870 F.3d 890, 894-897 (9th Cir.

2017), which was decided after the district court issued the order giving rise to this

appeal. Under Geozos, we look to the sentencing record; if the record makes clear

that the district court did not rely on the residual clause in determining that a prior

offense qualified as a predicate offense under the Armed Career Criminal Act, then

the petition does not rely on Johnson. 870 F.3d at 895.

      Here, the record is clear that the district court relied on the enumerated

offense clause of 18 U.S.C. § 924(e)(2)(B)(ii) to find that Davidson’s prior

Washington state convictions for second-degree burglary qualified as predicate

“violent felonies” for purposes of the Armed Career Criminal Act. At sentencing,

the district court specifically referenced our decision in United States v. Wenner,

351 F.3d 969 (9th Cir. 2003), which was an enumerated offenses clause case, and

neither Davidson nor the Government advanced residual clause arguments before


                                           2
or during sentencing.

      Because the district court did not rely on the residual clause, Davidson’s

claim does not rely on the rule announced in Johnson. Geozos, 870 F.3d at 896.

The § 2255 petition does not, therefore, meet the requirements for a second or

successive motion under that section. See 28 U.S.C. § 2255(h). Moreover, it is

time-barred as it does not otherwise meet the one-year statute of limitations set

forth in that section. See 28 U.S.C. § 2255(f).

      AFFIRMED.




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