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In re Conzelmann

United States Court of Appeals, Sixth Circuit

September 20, 2017

In re: Scott A. Conzelmann, Movant.

         On 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 Cleveland

          Scott A. Conzelmann, FEDERAL PRISON CAMP, Florence, Colorado, pro se.

          Before: GIBBONS, SUTTON, and THAPAR, Circuit Judges.

         LITIGANT

          ORDER

         Scott 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).

         In 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).

         Conzelmann 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).

         Conzelmann 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).

         This is 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.

         A 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 second prong.

         Hinkle 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 Supreme Court.

         To 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.

         Even if 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.

         We therefore DENY Conzelmann's application for leave to file a second ...


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