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In Re: Kenneth Johnson , 590 F. App'x 424 ( 2015 )


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  •      Case: 14-10730      Document: 00512902449         Page: 1    Date Filed: 01/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10730
United States Court of Appeals
Fifth Circuit
FILED
In re: KENNETH RAY JOHNSON,                                              January 14, 2015
Lyle W. Cayce
Movant                         Clerk
Motion for an order authorizing
the United States District Court for the
Northern District of Texas, Lubbock to consider
a successive 28 U.S.C. § 2255 motion
Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Kenneth Ray Johnson, federal prisoner # 38827-177, moves for
authorization to file a successive 28 U.S.C. § 2255 motion to challenge his 160-
month sentence for his conviction of aiding and abetting the distribution of
methamphetamine. He seeks to raise a claim challenging his career offender
enhancement in light of the Supreme Court’s decision in Descamps v. United
States,
    133 S. Ct. 2276 
    (2013).
A prisoner who wishes to file a second or successive § 2255 motion must
obtain authorization to do so from a court of appeals.                            28 U.S.C.
§§ 2244(b)(3)(C), 2255(h). Contrary to Johnson’s arguments, his proposed
§ 2255 motion is successive, and he must obtain authorization to file it. See
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10730    Document: 00512902449     Page: 2   Date Filed: 01/14/2015
No. 14-10730
Leal Garcia v. Quarterman,
    573 F.3d 214
    , 221–22 (5th Cir. 2009); United States
v. Orozco-Ramirez,
    211 F.3d 862
    , 864 n.4 (5th Cir. 2000); cf. United States v.
Rich,
    141 F.3d 550
    , 551–53 (5th Cir. 1998).
To obtain authorization, Johnson must make a prima facie showing that
his proposed § 2255 motion relies on either (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” or (2) “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.”      28 U.S.C. § 2255(h); see also 28 U.S.C.
§ 2244(b)(3)(C). Johnson does not assert that his claim is based on newly
discovered evidence. See § 2255(h)(1). To the extent that he relies on Descamps
for authorization, Descamps “does not provide a basis for [Johnson’s] successive
§ 2255 motion.” In re Jackson, No. 14-30805, ___ F.3d ___,
    2015 WL 127370
    ,
at *1, 3 (5th Cir. Jan. 8, 2015) (per curiam) (holding that “[w]hen a movant
relies on a new rule of constitutional law to make the showing required under
§ 2255(h)(2), he ‘must point to a Supreme Court decision that either expressly
declares the collateral availability of the rule (such as by holding or stating
that the particular rule upon which the petitioner seeks to rely is retroactively
available on collateral review) or applies the rule in a collateral proceeding.’”
(quoting In re Smith,
    142 F.3d 832
    , 835 (5th Cir. 1998), and citing In re Tatum,
    233 F.3d 857
    , 859 (5th Cir. 2000) (per curiam))).
Accordingly, IT IS ORDERED that Johnson’s motion for authorization
to file a successive § 2255 motion is DENIED.
2