Terry Ezell v. United States ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LAMELL EZELL, No. 17-35685
Petitioner-Appellant, D.C. No. 2:17-cv-00255-RSM
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Argued and Submitted July 11, 2018
Seattle, Washington
Before: FERNANDEZ, CLIFTON, and NGUYEN, Circuit Judges.
Terry Ezell appeals the district court’s denial of his second petition for
habeas relief pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28
U.S.C. § 2253(a), and we affirm.
1. Ezell failed to contest the constitutionality of his enhanced sentence at
sentencing and on direct appeal but his procedural default is excused by “cause”
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and “prejudice.” See Bousley v. United States, 523 U.S. 614, 621–22 (1998). Ezell
had cause not to challenge because at that time, Supreme Court precedent1
foreclosed the argument that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii)
was unconstitutionally vague. Reed v. Ross, 468 U.S. 1, 17 (1984). Ezell was
prejudiced because any error under Johnson v. United States, 135 S. Ct. 2551(2015), subjected him to a heightened mandatory minimum sentence. See 18
U.S.C. § 924(e)(1).
2. The “threshold question” here is whether Ezell’s second § 2255 petition
relies on the rule announced in Johnson. United States v. Geozos, 870 F.3d 890,
894 (9th Cir. 2017); see also 28 U.S.C. § 2255(h)(2). In United States v. Geozos,
we set forth the applicable framework for answering that question. 870 F.3d at
895–96. If the sentencing record makes clear that the district court did not rely on
the residual clause to find that a prior offense qualified as a predicate offense under
the Armed Career Criminal Act, the petition does not rely on Johnson as to that
offense. Id. at 895. If the record is unclear whether the district court relied on the
residual or another clause, we look to whether there is any controlling law that
would allow us to infer that the district court relied on something other than the
residual clause. Id. at 896. If we cannot draw such an inference because the
1
See James v. United States, 550 U.S. 192 (2007), overruled by Johnson v. United
States, 135 S. Ct. 2551 (2015).
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relevant legal background is mixed, the claim relies on Johnson for § 2255(h)(2)
purposes. Id.
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 Ezell’s two convictions
for second-degree burglary qualified as predicate offenses for purposes of the
Armed Career Criminal Act. The district court specifically referenced the
Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and our
decision in United States v. Kilgore, 7 F.3d 854 (9th Cir. 1993) (per curium), both
of which are enumerated offense cases.
The record is unclear which clause the district court relied on for the two
second-degree assault convictions, but the relevant legal background indicates that
Ezell’s conviction for intentional assault resulting in substantial bodily harm under
Washington Revised Code § 9A.36.021(1)(a) qualified as a predicate offense under
the elements clause. See United States v. Hermoso-Garcia, 413 F.3d 1085, 1088–
89 (9th Cir. 2005) (holding that such an assault was a crime of violence under
then-sentencing guideline § 2L1.2(b)(1)(A)(ii)’s nearly identically worded residual
clause).
Because the district court did not rely on the residual clause for three
predicate offenses, Ezell’s claim does not rely on the rule announced in Johnson.
Id. at 896 (“[A] claim does not ‘rely on’ Johnson[] if it is possible to conclude,
3
using both the record before the sentencing court and the relevant background legal
environment at the time of sentencing, that the sentencing court’s ACCA
determination did not rest on the residual clause.”).
AFFIRMED.
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