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In re Conzelmann

United States Court of Appeals, Sixth Circuit.
Sep 20, 2017
872 F.3d 375 (6th Cir. 2017)

Summary

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Young v. Quintana

Opinion

No. 17-3270.

09-20-2017

IN RE: Scott A. CONZELMANN, Movant.

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


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

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

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, ––– U.S. ––––, 133 S.Ct. 2875, 186 L.Ed.2d 924 (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 , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 109 S.Ct. 1060. 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 Dawkins v. United States , 829 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, 121 S.Ct. 2478, 150 L.Ed.2d 632 (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, 121 S.Ct. 2478. Mathis has not been declared retroactive by the Supreme Court.

We therefore DENY Conzelmann's application for leave to file a second or successive § 2255 motion.


Summaries of

In re Conzelmann

United States Court of Appeals, Sixth Circuit.
Sep 20, 2017
872 F.3d 375 (6th Cir. 2017)

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Young v. Quintana

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Harrison v. United States

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Burrows v. Quintana

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Blackwell v. Quintana

holding that the Supreme Court's holding in Mathis was not new, as it "was dictated by prior precedent (indeed two decades worth)," nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Fields v. Ormond

finding that Mathis did not announce a new rule, nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from Aubin v. Beasley

finding that Mathis did not announce a new rule, nor has Mathis been declared retroactive by the Supreme Court

Summary of this case from White v. Ormond

denying an application for leave to file a second or successive § 2255 motion because "Mathis has not been declared retroactive by the Supreme Court."

Summary of this case from Gaitor v. United States

denying an application for leave to file a second or successive § 2255 motion because "Mathis has not been declared retroactive by the Supreme Court."

Summary of this case from Manuel v. United States

noting that, under 28 U.S.C. § 2255(h), " second or successive collateral attack is permissible only if the court of appeals certifies that it rests on newly discovered evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

Summary of this case from Hackley v. Ormond

explaining that Mathis did not satisfy § 2255(h) to file a second or successive petition because Mathis "did not announce a new rule of constitutional law made retroactive by the Supreme Court"

Summary of this case from Lopez v. Merlak

explaining that under § 2255(h), " second or successive collateral attack is permissible only if the court of appeals certifies that it rests on newly discovered evidence or 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable'"

Summary of this case from Lopez v. Merlak

explaining that Mathis "did not announce a new rule of constitutional law made retroactive by the Supreme Court"

Summary of this case from Lynch v. Warden
Case details for

In re Conzelmann

Case Details

Full title:IN RE: Scott A. CONZELMANN, Movant.

Court:United States Court of Appeals, Sixth Circuit.

Date published: Sep 20, 2017

Citations

872 F.3d 375 (6th Cir. 2017)

Citing Cases

Lopez v. Merlak

See Lopez, No. 7:04-cr-10 (M.D. Ga.), ECF Nos. 39, 42. SeeIn re Conzelmann, 872 F.3d 375, 376-77 (6th Cir.…

United States v. Dean

The Sixth Circuit has held, however, that the Supreme Court's decision in Mathis does not announce a new rule…