FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO KELBIA ARAZOLA-GALEA, No. 16-73574
Petitioner,
v. OPINION
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive Petition
Under 28 U.S.C. § 2255
Submitted November 15, 2017*
San Francisco, California
Filed December 12, 2017
Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
Judges, and William E. Smith,** Chief District Judge.
Opinion by Judge Rawlinson
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable William E. Smith, Chief United States District
Judge for the District of Rhode Island, sitting by designation.
2 ARAZOLA-GALEA V. UNITED STATES
SUMMARY***
28 U.S.C. § 2255
Denying an application for authorization to file a second
or successive motion pursuant to 28 U.S.C. § 2255 to vacate
a sentence, the panel held that Mathis v. United States,
136 S.
Ct. 2243 (2016), which clarified application of the categorical
analysis to the Armed Career Criminal Act, did not establish
a new rule of constitutional law.
COUNSEL
Tara K. Hoveland, South Lake Tahoe, California, for
Petitioner.
Karla Hotis Delord, Assistant United States Attorney; Krissa
M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange,
Acting United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Respondent.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARAZOLA-GALEA V. UNITED STATES 3
OPINION
RAWLINSON, Circuit Judge:
Mario Arazola-Galea is a native and citizen of Honduras
who has been living in the United States since at least 2000.
In 2013, Arazola-Galea was arrested by border patrol agents
in Arizona and ordered detained on a felony complaint.
Arazola-Galea pled guilty to an Information charging him
with re-entry of a previously removed alien in violation of
8 U.S.C. § 1326. Arazola-Galea also admitted a violation of
his supervised release from a prior conviction. Investigation
revealed that Arazola-Galea had previously been deported
after a felony conviction for possession of a controlled
substance in violation of Colorado Revised Statute (C.R.S.)
§ 18-18-405(1). The district court determined that the
Colorado conviction was for a drug trafficking offense as
defined under U.S.S.G. §2L1.2(b)(1)(A), and sentenced
Arazola-Galea to 70 months’ imprisonment.
Arazola-Galea timely filed a direct appeal, which this
Court dismissed based on the valid appellate waiver in
Arazola-Galea’s plea agreement. Arazola-Galea then filed a
motion to vacate the sentence under 28 U.S.C. § 2255,
arguing that his Sixth Amendment right to counsel was
violated and that the district court lacked jurisdiction to
enhance his sentence without conducting a jury trial. The
district court dismissed the motion with prejudice based upon
the plea waiver. Arazola-Galea filed a subsequent motion for
authorization to file a second or successive habeas petition,
arguing that Johnson v. United States,
135 S. Ct. 2551 (2015)
entitled him to retroactive relief from his sentence. We
denied the motion, determining that the holding in Johnson
was not implicated.
4 ARAZOLA-GALEA V. UNITED STATES
Months later, Arazola-Galea filed the present motion for
authorization to file a second or successive habeas petition.
Arazola-Galea argues that, in light of the Supreme Court’s
holding in Mathis v. United States, 136 S. Ct. 2243 (2016),
the sentencing enhancement applied to his Colorado
conviction for possession of a controlled substance was
improper because his conviction was for an offense broader
than the generic offense described in the federal definition of
a drug trafficking offense in U.S.S.G. §2L1.2(a) and (b). We
deny Arazola-Galea’s application.
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a petitioner may file a second or successive
petition for a writ of habeas corpus if we certify that the claim
is based upon “[1] a new rule, [2] of constitutional law,
[3] made retroactive to cases on collateral review by the
Supreme Court, [4] that was previously unavailable.”
28 U.S.C. § 2255(h)(2);
28 U.S.C. § 2244(b)(2)(A).
The sole issue we must decide is whether Arazola-Galea’s
application to file a second or successive habeas petition can
survive “the stringent standard” set forth in AEDPA that
generally prohibits such filings. See Goodrum v. Busby,
824 F.3d 1188, 1193 (9th Cir. 2016). Arazola-Galea argues
that his application satisfies this stringent standard because
Mathis articulated a new constitutional rule that retroactively
invalidates the sentencing enhancement applied on the basis
of his Colorado conviction.
We disagree. Mathis does not establish a new rule of
constitutional law; rather, it clarifies application of the
“categorical” analysis to the Armed Career Criminal Act
(ACCA). See Mathis, 136 S. Ct. at 2251 (resolving the case
on the basis of the Court’s “longstanding principles,” and
ARAZOLA-GALEA V. UNITED STATES 5
explaining that Taylor v. United States, 495 U.S. 575 (1990)
“set out the essential rule governing ACCA cases more than
a quarter century ago”). Our subsequent decisions have
confirmed the notion that Mathis is a clarification of existing
rules rather than a new rule itself. See, e.g., United States v.
Martinez-Lopez,
864 F.3d 1034, 1039 (9th Cir. 2017)
(“Mathis did not change the rule stated in Descamps [v.
United States,
570 U.S. 254 (2013)]; it only reiterated that the
Supreme Court meant what it said when it instructed courts
to compare elements.”); United States v. Robinson,
869 F.3d
933, 936 (9th Cir. 2017) (“To determine whether a
defendant's prior conviction is a crime of violence under the
Guidelines, we apply the categorical approach first outlined
in Taylor v. United States,
495 U.S. 575 (1990), and later
clarified in [Descamps] and [Mathis]. . . .”).
We now join our sister circuits in definitively holding that
Mathis did not establish a new rule of constitutional law. See
Washington v. United States, 868 F.3d 64, 66 (2d Cir. 2017)
(“[A]lthough the Mathis Court noted that its ACCA [Armed
Career Criminal Act] interpretation had been based in part on
constitutional concerns, . . . those concerns did not reflect a
new rule, for Taylor set out the essential rule governing
ACCA cases more than a quarter century ago.”) (citation
and internal quotation marks omitted); In re Lott,
838 F.3d
522, 523 (5th Cir. 2016) (recognizing that Mathis did not “set
forth new rules of constitutional law that have been made
retroactive to cases on collateral review”) (citations omitted);
In re Conzelmann,
872 F.3d 375, 376–77 (6th Cir. 2017)
(same); Dawkins v. United States,
829 F.3d 549, 551
(7th Cir. 2016) (explaining that Mathis “did not announce” a
rule of constitutional law; “it is a case of statutory
interpretation”); In re Hernandez,
857 F.3d 1162, 1164 (11th
Cir. 2017) (same).
6 ARAZOLA-GALEA V. UNITED STATES
Arazola-Galea’s application for authorization to file a
second or successive habeas petition is DENIED.
