In re: Scott A. Conzelmann, Movant.
Motion to Authorize the Filing of a Second or Successive
Application for Habeas Corpus Relief. Nos. 1:11-cr-00035-1;
1:14-cv-01281-Christopher A. Boyko, District Judge. United
States District Court for the Northern District of Ohio at
A. Conzelmann, FEDERAL PRISON CAMP, Florence, Colorado, pro
Before: GIBBONS, SUTTON, and THAPAR, Circuit Judges.
A. Conzelmann, a federal prisoner proceeding pro se, moves
this court for an order authorizing the district court to
consider a second or successive § 2255 motion to vacate
his sentence. See 28 U.S.C. §§ 2244(a), 2255(h).
2011, Conzelmann was charged with two counts of distributing
cocaine. See 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He pleaded guilty to both counts. The
district court sentenced him as a career offender to 188
months of prison followed by three years of supervised
release. We affirmed, 514 Fed.Appx. 598, 599 (6th Cir. 2013),
and the Supreme Court denied his petition for a writ of
certiorari, 133 S.Ct. 2875 (2013).
filed his first § 2255 motion in 2014. He asserted two
grounds for relief: that his trial counsel was ineffective
for failing to properly investigate and challenge the career
offender enhancement, and that his conduct was not
"federally prosecutable" because government agents
"compelled" him to sell drugs. The district court
denied Conzelmann's § 2255 motion, and we refused to
issue a certificate of appealability. No. 14-3818 (6th Cir.
Feb. 4, 2015) (order).
filed a motion under Rule 60(b) of the Federal Rules of Civil
Procedure for relief from judgment, arguing that his
presentence report contained a factual error. The district
court transferred the motion to this court for consideration
as a second or successive § 2255 motion. We denied him
leave to file. No. 15-4212 (6th Cir. June 15, 2016) (order).
Conzelmann's third § 2255 motion. Invoking
Mathis v. United States, 136 S.Ct. 2243 (2016), and
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), he claims he should not have been classified as a
career offender because his prior conviction for possessing
chemicals to manufacture drugs no longer qualifies as a
predicate conviction for career offender purposes.
second or successive collateral attack is permissible only if
the court of appeals certifies that it rests on (1) newly
discovered evidence 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). Conzelmann seeks relief only under the
does not satisfy § 2255(h)(2). It is a court of appeals
decision and one from another circuit at that.
Mathis does not work either. It did not announce a
new rule of constitutional law made retroactive by the
decide whether a rule is "new" for purposes of
§ 2255(h)(2), we look to Teague v. Lane, 489
U.S. 288 (1989). See In re Embry, 831 F.3d 377, 379
(6th Cir. 2016). Under Teague, a rule is not new if
it is "dictated by precedent." 489 U.S. at
301. The Court's holding in Mathis was dictated
by prior precedent (indeed two decades worth). "For more
than 25 years, " Mathis reasoned, "we have
repeatedly made clear that application of ACCA involves, and
involves only, comparing elements. . . . And that rule does
not change when a statute happens to list possible
alternative means of commission." 136 S.Ct. at 2257.
Other courts of appeal have also concluded that
Mathis did not announce a new rule. See Daw kins v.
United States, 289 F.3d 549, 551 (7th Cir. 2016);
United States v. Taylor, 672 Fed.Appx. 860, 862
(10th Cir. 2016). We join them.
that were not the case, Conzelmann's claim would face two
more hurdles. One: Mathis does not announce a rule
of constitutional law. It merely interprets the
statutory word "burglary" in the Armed Career
Criminal Act. 136 S.Ct. at 2250; see also Holt v. United
States, 843 F.3d 720, 722 (7th Cir. 2016). Two: under
Tyler v. Cain, 533 U.S. 656 (2001), "a new rule
is not 'made retroactive to cases on collateral
review' unless the Supreme Court holds it to be
retroactive." Id. at 663. Mathis has
not been declared retroactive by the Supreme Court.
therefore DENY Conzelmann's application for leave to file
a second ...