Summary
holding Mathis did not set forth a new rule of constitutional law that has been made retroactive to cases on collateral review
Summary of this case from United States v. MitchellOpinion
No. 16–10866
09-26-2016
In re: Andreco Lott, Movant.
Andreco Lott, Forrest City, AR, Pro Se.
Andreco Lott, Forrest City, AR, Pro Se.
Before SMITH, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
A jury convicted Andreco Lott, federal prisoner # 27068–177, of one count of conspiring to commit bank robbery, two counts of bank robbery and aiding and abetting, two counts of conspiring to obstruct interstate commerce by robbery and aiding and abetting, and four counts of using and carrying a firearm during a crime of violence and aiding and abetting. He now moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his convictions under 18 U.S.C. § 924(c) for using and carrying a firearm during a crime of violence and aiding and abetting as well as his convictions for bank robbery and conspiring to obstruct interstate commerce by robbery and aiding and abetting. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h) ; Reyes–Requena v. United States , 243 F.3d 893, 897–99 (5th Cir. 2001). Invoking Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Lott argues that these convictions are invalid. He also argues that his firearms and bank robbery convictions are invalid in light of the Supreme Court's recent decisions in Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), and McDonnell v. United States , ––– U.S. ––––, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016).
Lott has not made the requisite showing. We have held that Johnson does not provide a basis for authorizing a successive § 2255 motion challenging a conviction under § 924(c). See In re Fields , 826 F.3d 785, 786–87 (5th Cir. 2016). Moreover, the bank robbery and conspiracy to obstruct interstate commerce by robbery statutes that Lott was convicted under do not contain language similar to the provision that the Supreme Court found unconstitutionally vague in Johnson, compare Johnson , 135 S.Ct. at 2555–57, with 18 U.S.C. § 2113(a) (bank robbery), and 18 U.S.C. § 1951 (conspiracy to obstruct interstate commerce by robbery), and so Johnson has no bearing on them. Finally, Lott has failed to make a prima facie showing that Mathis and McDonnell set forth new rules of constitutional law that have been made retroactive to cases on collateral review. See § 2255(h)(2) ; § 2244(b)(3)(C) ; Reyes – Requena , 243 F.3d at 897–99.
Accordingly, IT IS ORDERED that Lott's motion for authorization is DENIED. IT IS FURTHER ORDERED that Lott's motion to hold his case in abeyance in light of the Supreme Court's grant of certiorari in Beckles v. United States , –––U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016), is DENIED.