NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LAMELL EZELL,

Petitioner

- Appellant,

v. UNITED STATES OF AMERICA,

Respondent

- Appellee. No. 17

- 35685
D.C. No. 2:17

- cv - 00255

- RSM

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief Judge, Presiding Argued and Submitted July 11, 2018 Seattle, Washington Before: FERNANDEZ, CLIFTON, and NGUYEN, Circuit Judges. Terry Ezell appeals the district court’s denial of his second petition for habeas relief pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253(a), and we affirm.
1. Ezell failed to contest the constitutionality of his enhanced sentence at sentencing and on direct appeal but his procedural default is excused by “cause”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUL 30 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

and “prejudice.” See Bousley v. United States , 523 U.S. 614, 621

– 22 (1998)

. Ezell had cause not to challenge bec ause a t that time, Supreme Court precedent 1
foreclosed the argument that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague. Reed v. Ross , 468 U.S. 1, 17 ( 1984) . Ezell was prejudiced because any error under Johnson v. United States , 135 S. Ct. 2551 (2015) , subjected him to a heightened mandatory minimum sentence

. See 18 U.S.C. § 924(e)(1).
2. T he “threshold question” here is whether Ezell’s second § 2255 petition
relies on the rule announced in Johnson

. United States v. Geozos , 870 F.3d 890 , 894 (9th Cir. 2017) ; see also 28 U.S.C. § 2255(h)(2). In United States v. Geozos ,

w e set forth the applicable framework for answering that question

. 870 F.3d at
895

– 96

. If the sentencing record makes clear that the district court did not rely on the residual clause to find that a prior offense qualified as a predicate offense under
the Armed Career Criminal Act , the petition does not rely on Johnson as to that
offense. Id. at 895 . If the record is unclear whether the district court relied on the residual or another clause, we look to whether there is any controlling law that
would allow us to infer that the district court relied on something other than the
residual cla use
. Id. at 896 . If we cannot draw such an inference because the

1 See James v. United States , 550 U.S. 192 (2007), overruled by Johnson v. United States , 135 S. Ct. 2551 (2015)

.3

relevant legal background is mixed, the claim relies on Johnson for § 2255(h)(2)
purposes. Id. Here, t he record is clear that the district court relied on the enumerated
offense clause of 18 U.S.C. § 924(e)(2(B)(ii) to find that Ezell’s two convictions
for second

- degree burglary qualified as predicate offenses for purposes of the
Armed Career Criminal Act. The district court specifically referenced the Supreme Court’s decision in Taylor v. United States , 495 U.S. 575 (1990), and ou r decision in United States v. Kilgore , 7 F.3d 854 (9th Cir. 1993) (per curium) , both
of which are enumerated offense cases

. The record is unclear which clause the district court relied on for the two
second

- degre e assault convictions , but the relevant legal background indicates that Ezell’s conviction for intentional assault resulting in substantial bodily harm under Washington Revised Code § 9A.36.021(1)(a) qualified as a predicate offense under
the elements clau se
. See United States v. Hermoso

- Garcia , 413 F.3d 1085, 1088

– 89 (9th Cir. 2005) (holding that such an assault was a crime of violence under
then

- sentencing guideline § 2L1.2(b)(1)(A)(ii) ’s nearly identically worded residual clause)

. Because the district court did not rel y on the residual clause for three predicate offenses , Ezell’s claim does not rely on the rule announced in Johnson

. Id. at 896 (“[A] claim does not ‘rely on’ Johnson [] if it is possible to conclude,4

using both the record bef ore the sentencing court and the relevant background legal environment at the time of sentencing, that the sentencing court’s ACCA determination did not rest on the residual clause.”).
AFFIRMED.