and Submitted April 19, 2019 San Francisco, California
Application to File Second or Successive Petition Under 28
U.S.C. § 2255
Elizabeth Richardson-Rover (argued), San Francisco,
California, for Petitioner.
J. Montoya (argued), Assistant United States Attorney; Camil
A. Skipper, Appellate Chief; McGregor Scott, United States
Attorney; United States Attorney's Office, Fresno,
California; for Respondent.
Before: MICHAEL DALY HAWKINS and MILAN D. SMITH, JR., Circuit
Judges, and BARBARA M. G. LYNN, [*] District Judge.
U.S.C. § 2255
panel denied Fernando Ponce Garcia's application for
authorization to file a second or successive 28 U.S.C. §
2255 petition collaterally attacking his 2008 sentence for
conspiracy to distribute and possess with intent to
distribute methamphetamine (21 U.S.C. §§ 846,
841(1)(a)(1), and 841(b)(1)(A)) and possession of a firearm
during a drug trafficking offense (18 U.S.C. §
application relied on the rule announced in Dean v.
United States, 137 S.Ct. 1170 (2017), which held that
when a defendant is facing two consecutive sentences- one for
a predicate offense, which does not carry a mandatory minimum
sentence, and one for an offense committed under §
924(c), which does carry a mandatory minimum-the sentencing
judge has the discretion to consider the defendant's
mandatory sentence when deciding the proper time to be served
for the predicate offense.
panel held that Garcia did not satisfy the requirements set
forth in 28 U.S.C. § 2255(h)(2) for authorization to
file a second or successive § 2255 petition because
Dean's rule was statutory, not constitutional,
and even if it were constitutional, the Supreme Court has not
made the rule retroactive to cases on collateral review.
SMITH, CIRCUIT JUDGE
case of first impression for our circuit, we decide whether
the Supreme Court's decision in Dean v. United
States, 137 S.Ct. 1170 (2017), announced a new rule of
constitutional law that the Court has made retroactively
applicable to cases on collateral review. We find that it did
not, so we deny Fernando Garcia's application for
authorization to file a second or successive petition under
28 U.S.C. § 2255.
AND PROCEDURAL BACKGROUND
pleaded guilty to conspiracy to distribute and possess with
the intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and
possession of a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § ...