Linzey Smith v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINZEY SMITH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 15-73591
D.C. No. 2:04-CR-00096-JLQ
Eastern District of Washington,
Spokane
ORDER*
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
FILED
DEC 09 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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

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The motion requesting authorization to file a second or successive
application for habeas corpus is DENIED.
3

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