In re: Charles Therion Clayton

829 F.3d 1254, 2016 U.S. App. LEXIS 13133, 2016 WL 3878156

Opinions

ORDER:

Charles Clayton seeks permission to file a 28 U.S.C. § 2255 motion based on Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Because Mr. Clayton previously filed a § 2255 motion, his new motion must be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... 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)(2). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C). Mr. Clayton was sentenced in 2010 using United States Sentencing Guidelines § 4B1.1. This court has held that Johnson does not apply to sentences that were based on USSG § 4B1.1. See United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015). Mr. Clayton has therefore not made “a prima facie showing” that his motion will meet § 2255(h)’s requirements for second or successive § 2255 motions. 28 U.S.C. § 2244(b)(3)(D).

APPLICATION DENIED.