from the United States District Court for the Western
District of Oklahoma (D.C. Nos . 5:16-CV-00763-HE and
R. Smith, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
W. Creager, Assistant United States Attorney (Mark A. Yancey,
United States Attorney; Ashley Altshuler, Assistant United
States Attorney, with him on the brief), Oklahoma City,
Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
BALDOCK, CIRCUIT JUDGE.
2011, Defendant Cory Devon Washington pleaded guilty in the
Western District of Oklahoma to two firearm-related offenses.
The district court sentenced him to fifteen years'
imprisonment under the Armed Career Criminal Act (ACCA).
After Johnson v. United States, 135 S.Ct. 2551
(2015), invalidated the ACCA's residual clause, Defendant
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. Notably, this motion was his second § 2255
motion. The district court dismissed the motion because
Defendant did not establish the sentencing court relied on
the residual clause for any of his ACCA predicate offenses.
Exercising jurisdiction under 28 U.S.C. § 2253(a), we
2011, pursuant to a plea agreement, Defendant pleaded guilty
to one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and one count of
possessing an unregistered firearm in violation of 26 U.S.C.
§§ 5861(d) and 5845(f). Under the ACCA, a defendant
convicted of being a felon in possession of a firearm faces a
minimum of fifteen years' imprisonment if the defendant
has three previous convictions for violent felonies or
serious drug offenses. 18 U.S.C. § 924(e)(1). At the
time of Defendant's sentencing, a violent felony was
defined as "any 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 elements
clause); (2) "is burglary, arson, or extortion, involves
use of explosives" (the enumerated offense clause); or
(3) "otherwise involves conduct that presents a serious
potential risk of physical injury to another" (the
residual clause). § 924(e)(2)(B).
presentence investigation report (PSR) recommended an
enhanced sentence under the ACCA based on three prior felony
convictions: (1) a juvenile adjudication for pointing a
weapon; (2) assault and battery with a dangerous weapon; and
(3) burglary in the second degree. Defendant objected to the
PSR's recommended sentence, arguing only that the
juvenile adjudication for pointing a weapon did not qualify
as a predicate offense under the ACCA. Defendant argued the
adjudication arose from a misdemeanor charge, it was not a
conviction, and it was ultimately dismissed. At a sentencing
hearing in December 2011, the district court rejected all
three arguments and held Defendant's juvenile
adjudication qualified as an ACCA predicate offense. Pursuant
to the ACCA, the district court imposed the mandatory minimum
sentence of 180 months' imprisonment. We affirmed on
direct appeal. United States v. Washington, 706
F.3d 1215 (10th Cir. 2012). In 2014, Defendant filed a §
2255 motion to vacate, set aside, or correct his sentence,
alleging ineffective assistance of counsel. The district
court denied this motion, and Defendant did not appeal.
2015, the Supreme Court's decision in Johnson
struck the ACCA's residual clause as unconstitutionally
vague but left the elements clause and enumerated offense
clause intact. 135 S.Ct. at 2563. The Supreme Court later
held Johnson is retroactive in cases on collateral
review, allowing defendants previously sentenced under the
ACCA's residual clause to challenge their sentences.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
After the Supreme Court decided Johnson and
Welch, Defendant obtained authorization from us to
file a second or successive § 2255 motion. In his
motion, Defendant argued Johnson rendered his ACCA
sentencing enhancement unconstitutional as to his three prior
convictions. The district court disagreed and held Defendant
did not raise Johnson-based claims but rather raised
Mathis-based claims, which were
barred. The court then dismissed this second or
successive motion pursuant to § 2244. Defendant filed a
motion for a certificate of appealability, which the district
court denied. Defendant then filed a timely notice of appeal.
We granted a certificate of appealability on two issues: (1)
whether Defendant's motion satisfied the requirements of
§ 2244(b); and if so, (2) whether, on the merits, the
district court unconstitutionally enhanced Defendant's
sentence under the ACCA.
who file a second or successive § 2255 motion must pass
through two gates before a court may consider the merits of
the motion. See 28 U.S.C. § 2255(h); United
States v. Murphy, 887 F.3d 1064, 1067-68 (10th Cir.
2018); see also Case v. Hatch, 731 F.3d
1015, 1026-29 (10th Cir. 2013) (adopting the same gatekeeping
process but in the context of second or successive §
2254 motions). At the first gate, a defendant initially must
obtain authorization from the court of appeals to file the
second or successive § 2255 motion in the district
court. Case, 731 F.3d at 1026; § 2244(b)(3). To
obtain this authorization, a defendant must make a prima
facie showing that his motion relies on:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was