In Re: Joel Rodriguez

18 F.4th 841

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 3, 2021
• Docket: 21-10936
• Status: Published

Opinion

Case: 21-10936 Document: 00516116683 Page: 1 Date Filed: 12/03/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED December 3, 2021 No. 21-10936 Lyle W. Cayce Clerk In re: Joel Rodriguez,

Movant.

Motion for an order authorizing the United States District Court for the Northern District of Texas to consider a successive 28 U.S.C. § 2255 motion

Before Stewart, Haynes and Ho, Circuit Judges. Per Curiam: Joel Rodriguez, federal prisoner # 42309-177, moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his conviction for possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He seeks to raise a claim pursuant to Borden v. United States, 141 S. Ct. 1817 (2021). To obtain authorization to file a second or successive § 2255 motion, Rodriguez must make a prima facie showing that his proffered § 2255 motion relies on either (1) “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,” or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was Case: 21-10936 Document: 00516116683 Page: 2 Date Filed: 12/03/2021

No. 21-10936

previously unavailable.” § 2255(h); see 28 U.S.C. § 2244(b)(3)(C); Reyes- Requena v. United States, 243 F.3d 893, 897-99 (5th Cir. 2001). Borden does not provide a basis on which Rodriguez may obtain authorization under § 2255(h)(2) because it did not announce a new rule of constitutional law but instead addressed a question of statutory construction. See Borden, 141 S. Ct. at 1825; see also In re Cain, No. 21-13241, 2021 U.S. App. LEXIS 30205 *6 (11th Cir. Oct. 7, 2021)(“The Supreme Court’s interpretation of a substantive criminal statute, using established rules of statutory construction, does not announce a new rule of constitutional law . . . .”); In re Salas, 888 F.3d 150, 150-51 (5th Cir. 2018); Reyes-Requena, 243 F.3d at 900. Accordingly, because Rodriguez fails to make the requisite showing under § 2255(h), IT IS ORDERED that his motion for authorization is DENIED.