United States v. Lindsey ( 2022 )

Case: 20-10072 Document: 00516203429 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10072 February 15, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Timothy Lindsey,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-514
USDC No. 4:09-CR-135-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Timothy Lindsey, federal prisoner # 15723-077, has appealed the
district court’s judgment dismissing his successive motion under 28 U.S.C.
§ 2255 challenging his 180-month sentenced imposed under the Armed
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10072
Career Criminal Act (ACCA). Previously, we granted Lindsey’s motion for
authorization to file a successive § 2255 motion based on the holding of
Johnson v. United States, 576 U.S. 591 (2015). We specified, however, that
the grant was “tentative in that the district court must dismiss the § 2255
motion without reaching the merits if it determines that Lindsey has failed to
make the showing required to file such a motion.”
Thereafter, Lindsey filed a successive § 2255 motion based on Johnson
and Welch v. United States, 578 U.S. 120, 127-30 (2016). The Government
asserted that Lindsey had failed to show that his motion relied on Johnson
because his predicate Texas burglary convictions qualified as violent felonies
under the ACCA’s enumerated-offense clause as, at the time of his
sentencing in 2010, those convictions qualified as generic burglaries. The
district court determined that it lacked jurisdiction because Lindsey had
failed to demonstrate that it was more likely than not that the sentencing
court relied on the ACCA’s residual clause when Lindsey was sentenced. See
United States v. Clay, 921 F.3d 550, 554 (5th Cir. 2019); United States v. Wiese,
896 F.3d 720, 726 (5th Cir. 2018).
Lindsey asserts that a Texas burglary under Texas Penal Code
§ 30.02(a) is indivisible and is categorically broader than the enumerated
offense of burglary. He concedes that this question is foreclosed by United
States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019) (en banc), but he raises the
issue to preserve it for further review. He moves this court to expand the
certificate of appealability to include the merits and to find for him. The
motion is DENIED. See id.; see also United States v. Wallace, 964 F.3d 386,
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389-90 (5th Cir.) (discussing and declining to limit Herrold), cert. denied, 141
S. Ct. 910 (2020)1.
Lindsey asserts that this court’s prefiling authorization satisfies the
only statutory prerequisite for filing a second or successive § 2255 motion.
He contends that the gatekeeping requirements of 28 U.S.C. §§ 2244(b) and
2255(h) are non-jurisdictional. As will be discussed, this court held otherwise
in Clay and Wiese. Under the rule of orderliness, one panel of this court may
not overturn another panel’s decision absent an intervening change in the
law. See Austin v. Davis, 876 F.3d 757, 778 (5th Cir. 2017).
“A second or successive habeas application must meet strict
procedural requirements before a district court can properly reach the merits
of the application.” Wiese, 896 F.3d at 723; see §§ 2244(b), 2255(h). A
prisoner pursuing a successive § 2255 motion must pass through two
jurisdictional “gates” to have his motion heard on the merits. Wiese, 896
F.3d at 723 (internal quotation marks and citation omitted). Lindsey has
passed through the first gate by obtaining this court’s authorization to file a
successive motion. See id. To pass through the second gate, Lindsey must
prove that “it was more likely than not that he was sentenced under the
residual clause.” Clay, 921 F.3d at 559. The district court determined that
Lindsey had failed to meet that burden.
Lindsey invokes United States v. Taylor, 873 F.3d 476, 482 (5th Cir.
2017), which, he contends, was inconsistent with Wiese and Clay, and is
controlling. This contention has been rejected previously. See United States
v. Medina, 800 F. App’x 223, 225 n.2 (5th Cir.), cert. denied, 141 S. Ct. 10481
Unpublished opinions issued in or after 1996 “are not precedent” except in
limited circumstances, 5th Cir. R. 47.5.4, but they “may be persuasive authority,”
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
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(2020); United States v. Hernandez, 779 F. App’x 195, 199 n.3 (5th Cir. 2019).
While Medina and Hernandez are not binding, see 5th Cir. R. 47.5.4, they
are persuasive authority, Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir.
2006), and we choose to adopt them here. See Clay, 921 F.3d at 555 & 558
n.3 (noting that this court declined in Taylor to establish a standard for
determining whether the sentencing court relied improperly on the residual
clause); Wiese, 896 F.3d at 720 (same); Taylor, 873 F.3d at 481.
Lindsey asserts that, under 2010 law, the sentencing court could not
determine that his habitation burglaries were enumerated burglaries without
the state court records, which it did not have, and that the district court could
not rely on the characterization of an offense in the presentence report when
applying the prior conviction enhancement. These contentions are without
merit.
Under United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008),
the sentencing court could have determined that Lindsey’s Texas burglary
convictions qualified as enumerated burglaries under § 30.02(a)(1) or not at
all. In Wiese, this court recognized that, in determining a sentencing court’s
potential reliance on the residual clause, it could look at the sentencing record
for direct evidence of the sentence, the relevant background legal
environment, and the presentence report and other relevant materials before
the district court. 896 F.3d at 725; see also Clay, 921 F.3d at 558. In this case
the presentence report shows that three of Lindsey’s burglaries were generic
burglaries under § 30.02(a)(1). In each prior case, the probation officer
found, based on court disposition records, that Lindsey “intentionally . . . ,
without the effective consent of the owner, entered a habitation with intent
to commit theft.” Thus, contrary to Lindsey’s contention, the record
reflects that the sentencing court did have access to the terms of the pertinent
state documents. We note that Lindsey asserted no objection to the
probation officer’s findings.
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For the foregoing reasons, the district court did not err in holding that
Lindsey failed to meet his burden of showing by a preponderance of the
evidence that the sentencing court relied on the ACCA residual clause. See
Clay, 921 F.3d at 559. The judgment is AFFIRMED.
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