REVISED April 25, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60538

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

GLEN B. CLAY, also known as Glenn B. Clay, 

Defendant – Appellant 

Appeal from the United States District Court

for the Southern District of Mississippi

Before JONES, HO, and OLDHAM, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The district court denied Petitioner’s successive § 2255 habeas petition

because he failed to establish that the sentencing court relied on the residual 

clause to impose his ACCA-enhanced sentence. Because this court concludes

that a prisoner bringing a successive § 2255 petition must show that it is “more 

likely than not” that the sentencing court relied on the residual clause to prove 

that his claim “relies on” Johnson, the district court’s judgment is AFFIRMED.

BACKGROUND

Following a jury trial in 2008, Petitioner Glen B. Clay, federal prisoner 

#09299-043, was convicted of violating 18 U.S.C. § 922(g)(1) for being a felon 

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2019

Lyle W. Cayce

Clerk

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in possession of a firearm. That conviction ordinarily carries a maximum 

sentence of ten years. See 18 U.S.C. § 924(a)(2). However, both the 

superseding indictment and the presentence report (“PSR”) indicated that Clay 

was punishable under the Armed Career Criminal Act (“ACCA”), which 

imposes a 15-year minimum sentence on defendants who have at least three 

prior convictions for “violent felonies” or for “serious drug offenses” when the 

underlying crimes were committed on different occasions. See 18 U.S.C. 

§ 924(e). During sentencing, Clay’s counsel conceded that the ACCA applied. 

Thereafter, the sentencing court adopted the PSR’s recommendations and

applied the ACCA sentencing enhancement, sentencing Clay to 235 months’

imprisonment.

Clay timely appealed both his conviction and sentence, but he did not 

challenge the ACCA sentencing enhancement on direct appeal or in his initial

habeas petition. Clay’s acceptance of the ACCA’s applicability evaporated, 

however, after the Supreme Court issued its decision in Johnson v. United 

States and held that “imposing an increased sentence under the residual clause 

of the Armed Career Criminal Act violates the Constitution’s guarantee of due 

process.” 135 S. Ct. 2551, 2563 (2015). Claiming that the sentencing court 

relied on the residual clause to impose his ACCA-enhanced sentence, Clay 

sought permission to file a successive § 2255 habeas petition in light of 

Johnson. This court granted him permission in 2016, reasoning that because 

“[t]he record before us contains no documentation of Clay’s predicate offenses,” 

there is a “possibility that he was sentenced under the residual clause.” In so 

doing, this court cautioned that its “grant of authorization [was] tentative in 

that the district court must dismiss the § 2255 motion without reaching the 

merits if it determines that Clay has failed to make the showing required to 

file such a motion.”

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Clay filed his successive § 2255 habeas petition in district court. At 

bottom, Clay alleged that the sentencing court “only relied on the now invalid 

‘residual clause’ to establish that [his] prior state court convictions supported 

an enhanced sentence” under the ACCA. Clay’s petition acknowledged that 

the record did not include any documents relating to his underlying state-court 

convictions which proved that the sentencing court relied on the residual 

clause. Accordingly, Clay asked the district court to obtain “appropriate 

adjudicative records” during the process of evaluating his petition to determine 

“whether any of Clay’s convictions qualify as violent felonies under the ACCA.” 

Id.

The district court denied Clay’s successive petition without obtaining the 

requisite documents. First, the district court held that it lacked jurisdiction 

over Clay’s successive petition because Clay “has not demonstrated that the 

court relied on the residual clause in sentencing him” and therefore “has not 

shown that his case falls within the rule announced in Johnson.” Second, in 

the alternative, the district court held that Clay “failed to show that he is 

entitled to relief on the merits” because his prior convictions qualify as “violent 

felonies” under the enumerated offenses clause of the ACCA, which means that

any error from the sentencing court’s reliance on the residual clause is 

harmless. In its order denying Clay’s successive petition, the district court also 

denied a certificate of appealability (“COA”). Clay then sought a COA before 

this court.

This court granted Clay a COA to challenge the district court’s denial of 

his successive § 2255 petition. The COA was granted on two issues, which 

parallel the district court’s alternate holdings: (1) “whether a prisoner seeking 

the district court’s authorization to file a successive § 2255 motion raising a 

Johnson claim must establish that he was sentenced under the residual clause 

to show that the claim relies on Johnson”; and (2) “whether any Johnson error 

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at sentencing was harmless because Clay’s 1982 house burglaries constituted 

enumerated burglary under the ACCA.” 

STANDARD OF REVIEW

“In challenges to district court decisions under 28 U.S.C. § 2255, we 

measure findings of fact against the clearly erroneous standard and questions 

of law de novo.” United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). “If 

the district court lacked jurisdiction, our jurisdiction extends not to the merits 

but merely for the purpose of correcting the error of the lower court in 

entertaining the suit.” United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) 

(per curiam) (internal quotation marks, citation, and alteration omitted).

DISCUSSION

Under 28 U.S.C. §§ 2244(b) and 2255(h), “[a] second or successive habeas 

application must meet strict procedural requirements before a district court 

can properly reach the merits of the application.” United States v. Wiese, 

896 F.3d 720, 723 (5th Cir. 2018). “There are two requirements, or ‘gates,’ 

which a prisoner making a second or successive habeas motion must pass to 

have it heard on the merits.” Id. (internal citation omitted). First, the prisoner 

must make a “prima facie showing” to the circuit court “that the motion relies 

on a new claim resulting from either (1) ‘a new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable,’ or (2) newly discovered, clear and convincing evidence 

that but for the error no reasonable fact finder would have found the defendant 

guilty.” Id. (quoting 28 U.S.C. §§ 2244(b), 2255(h)). Second, after receiving 

permission from the circuit court to file a successive petition, “the prisoner 

must actually prove at the district court level that the relief he seeks relies 

either on a new, retroactive rule of constitutional law or on new evidence.” Id. 

(citing 28 U.S.C. § 2244(b)). Where a prisoner fails to make the requisite 

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showing before the district court, the district court lacks jurisdiction and must 

dismiss his successive petition without reaching the merits. Id.

At issue here is the degree to which a prisoner “must actually prove” that 

the relief he seeks “relies on” Johnson to confer jurisdiction on a district court. 

Id. The circuits are split on this issue. To prove that a successive petition 

relies on Johnson in the First, Third, Sixth, Eighth, Tenth, and Eleventh 

Circuits, a prisoner must show that it is “more likely than not” that the 

sentencing court invoked the residual clause. See, e.g., Dimott v. United States, 

881 F.3d 232, 243 (1st Cir. 2018) (“[T]o successfully advance a [Johnson] claim 

on collateral review, a habeas petitioner bears the burden of establishing that 

it is more likely than not that he was sentenced solely pursuant to ACCA’s 

residual clause.”); see also United States v. Peppers, 899 F.3d 211, 235 n. 21 (3d 

Cir. 2018); Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018); Walker v. 

United States, 900 F.3d 1012, 1015 (8th Cir. 2018); United States 

v. Washington, 890 F.3d 891, 896 (10th Cir. 2018); Beeman v. United States, 

871 F.3d 1215, 1221–22 (11th Cir. 2017). In contrast, to prove that a successive 

petition relies on Johnson in the Fourth and Ninth Circuits, a prisoner need

only show that the sentencing court “may have” invoked the residual clause. 

See United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017); United States 

v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017). 

Although this court has previously observed in passing that “the ‘more 

likely than not’ standard appears to be the more appropriate standard,” we 

have yet to “conclusively decide” which standard of proof applies. Wiese, 

896 F.3d at 724–25 (noting that the successive petition failed under either 

standard); see also United States v. Taylor, 873 F.3d 476, 479–81 (5th Cir. 

2017) (describing the circuit split before concluding that “[w]e need not decide 

today which, if any, of these standards we will adopt because we conclude that 

Taylor’s § 2255 claim merits relief under all of them”). For reasons described 

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below, resolving Clay’s appeal will require this court to select a standard of 

proof. However, before resolving that issue, a little background is in order.

To receive a sentencing enhancement under the ACCA, a defendant must 

have previously been convicted of at least three “violent felonies” that occurred 

on different occasions from one another.1 18 U.S.C. § 924(e)(1). At the time 

Clay was sentenced for violating 18 U.S.C. § 922(g)(1), the ACCA defined 

“violent felony” as a “crime punishable by imprisonment for a term exceeding 

one year” that (1) “has as an element the use, attempted use, or threatened use 

of physical force against the person of another” (“the force clause”); (2) “is 

burglary, arson, or extortion, [or] involves [the] use of explosives” (“the 

enumerated offenses clause”); or (3) “otherwise involves conduct that presents 

a serious potential risk of physical injury to another” (“the residual clause”). 

Id. § 924(e)(2)(B). In Johnson, the Supreme Court held that the residual clause 

was unconstitutionally vague, such that an ACCA-enhanced sentence could 

not be constitutionally imposed in reliance on that clause’s definition of a 

“violent felony.” 135 S. Ct. at 2557. In Welch v. United States, the Court held

Johnson retroactively applicable to cases on collateral review, thus enabling 

the basis for Clay’s successive petition. 136 S. Ct. 1257, 1265 (2016).

In this case, both the superseding indictment and PSR indicate that—at 

the time of his sentencing—Clay had nine prior Mississippi convictions for 

which he was sentenced to “imprisonment for a term exceeding one year”: two 

for business burglary, two for armed robbery, one for aggravated assault, and 

four for house burglary. Although both documents report that Clay was 

eligible for an ACCA sentencing enhancement, neither document identifies

which of Clay’s prior convictions were used to make that determination or 

 

1 No parties contest that Clay qualified for an ACCA sentencing enhancement based 

on the commission of a “serious drug offense,” so that predicate is not analyzed here.

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which definitional clauses of the ACCA were used to define those convictions 

as “violent felonies.” Moreover, because Clay’s counsel conceded at his hearing 

that the ACCA applied, there was no occasion for the sentencing court to clarify 

how the requisite “violent felonies” were tabulated.

For the sentencing court to have lawfully imposed the ACCA sentencing 

enhancement, it would have needed to determine that at least three of Clay’s 

prior convictions were for “violent felonies” under the ACCA. See

18 U.S.C. § 924(e)(1). Because Clay’s armed robbery and aggravated assault 

convictions stemmed from the same incident, they would have counted

together as only one ACCA-qualifying offense. Therefore, the sentencing court 

must have determined that at least two of Clay’s six burglary convictions were 

“violent felonies.” Neither the district court nor the parties allege that Clay’s 

convictions for “business burglary” were “violent felonies.” The question 

reduces to whether at least two of Clay’s convictions for “house burglary” were 

correctly considered “violent felonies.”

Clay argues that the only way the sentencing court could have counted 

his “house burglary” convictions as “violent felonies” is for the sentencing court 

to have relied on the now-unconstitutional residual clause. Alternatively, he 

claims that “[w]here no record exists explaining whether [a] petitioner’s 

convictions fit the elements clause, the enumerated offenses clause, or the 

residual clause,” this court should apply the rule of lenity and give him the 

benefit of the doubt. (internal quotation marks and citation omitted). The

government responds that convictions for “house burglary” qualified expressly 

as “violent felonies” under ACCA’s enumerated offenses clause. See

18 U.S.C. § 924(e)(2)(B)(ii). Consequently, even if the sentencing court relied 

on the residual clause, any error is harmless.

“[T]o determine whether a sentence was imposed under the enumerated 

offenses clause or the residual clause,” this court “look[s] to the law at the time 

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of sentencing.” Wiese, 896 F.3d at 724. In 2008, when Clay’s ACCA-enhanced 

sentence was imposed, the sentencing court would have used the categorical 

approach to determine whether his prior “house burglary” convictions qualified

as “violent felonies” under the enumerated offenses clause. Burglary is an 

enumerated offense in 18 U.S.C. § 924(e)(2)(B)(ii), but not all offenses labeled 

“burglary” constitute the enumerated, generic offense of burglary listed in the 

ACCA. See Taylor v. United States, 495 U.S. 575, 580, 598–99, 110 S. Ct. 2143, 

2149, 2158 (1990). Under the categorical approach, to determine whether

Clay’s “house burglary” convictions were convictions for “generic burglary,” the 

sentencing court would have compared the elements of the statute of 

conviction—here, the Mississippi statute criminalizing “house burglary” in 

1982—with the elements of “generic burglary.” Id. at 599–600, 110 S. Ct. at

2158–59. For purposes of the ACCA, “generic burglary” is defined by “the basic 

elements of unlawful or unprivileged entry into, or remaining in, a building or 

structure, with intent to commit a crime.” Id. at 599, 110 S. Ct. at 2158. When 

comparing the elements, “[i]f the state statute [of conviction] is narrower than 

the generic view . . . the conviction necessarily implies that the defendant has 

been found guilty of all the elements of generic burglary” and the conviction 

therefore qualifies as an enumerated “violent felony.” Id. However, if the state 

statute of conviction “define[s] burglary more broadly, e.g., by eliminating the 

requirement that the entry be unlawful, or by including places, such as 

automobiles and vending machines, other than buildings,” the conviction 

generally will not qualify. Id. at 599–602, 110 S. Ct. at 2158–60.

In this case, the district court found (and the government argues on 

appeal) that Clay’s “house burglary” convictions were for violating Mississippi 

Code Annotated § 97-17-19 (1972), which criminalized “breaking and entering 

any dwelling house, in the day or night, with intent to commit a crime.” See 

Course v. State, 469 So. 2d 80, 80–81 (Miss. 1985) (applying Mississippi Code 

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Annotated (1972) to a burglary committed in October 1982). Because that 

statute includes “the basic elements of unlawful or unprivileged entry into, or 

remaining in, a building or structure, with intent to commit a crime,” the 

district court concluded under the categorical approach that Clay’s convictions 

for “house burglary” were enumerated “violent felonies” under the ACCA. 

Taylor, 495 U.S. at 599, 110 S. Ct. at 2158. Therefore, the district court 

reasoned, “even if the [sentencing] court relied on the residual clause . . . Clay’s 

sentence was properly enhanced under the ACCA and thus, he has suffered no 

prejudice from any Johnson error.” On these grounds, the district court denied 

Clay’s successive § 2255 petition.

Clay disputes this result on three bases. His first two arguments 

challenge the district court’s analysis under the categorical approach, insisting 

(for various reasons) that § 97-17-19 does not comport with “generic burglary” 

under the ACCA. This court finds those arguments unavailing.2 Clay’s third 

 

2 First, citing to a federal district court opinion, Clay claims that this court must apply 

“current law on the enumerated offense clause” to determine if a Johnson error is harmless. 

(citing United States v. Scott, No. CV 99-05-JJB-EWD, 2017 WL 3446030, at *2 (M.D. La. 

Aug. 10, 2017), superseded on other grounds, 2018 WL 2169965 (M.D. La. May 10, 2018) 

(emphasis omitted)). Clay appears to argue that, because this court held in 2017 that the 

current Mississippi burglary statute is broader than “generic burglary,” his convictions under 

a now-superseded burglary statute cannot be enumerated felonies under the ACCA. (citing 

United States v. Johnson, 477 F. App’x 182, 183 (5th Cir. 2012) (per curiam) (“There is no 

dispute that [Mississippi Code Annotated § 97-17-33 (1992)] criminalizes conduct not covered 

by a generic burglary offense.”));

The problem with this first argument is that, contra Clay’s assertion, this court does 

not rely on current statutory elements when deciding whether a defendant’s prior conviction 

constitutes a “violent felony.” Rather, this court examines the statutory elements as they 

existed at the time the defendant committed the offense. As a result, it is irrelevant that this 

court—in a 2017 unpublished opinion—held that the 1992-version of Mississippi’s burglary 

statute is broader than the generic definition. What matters is whether the version of the 

statute in effect at the time of Clay’s house burglaries in 1982 matches the generic definition.

Turning to the statutes in effect at the time of his conviction, Clay next contends that 

the “meaning of a dwelling-house” is broader than the “building or structure” contemplated 

in Taylor. Clay did not raise this issue until his reply brief. Thus, it is waived. See United 

States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (per curiam) (“Arguments raised for 

the first time in a reply brief, even by pro se litigants . . . are waived.”).

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argument, however, is more compelling and requires this court to resolve the 

first issue identified in the COA—namely, the degree to which a prisoner must 

prove that he was sentenced under the residual clause before he is entitled to 

bring a successive § 2255 petition raising a Johnson claim. 

In his third argument, Clay contends that it is impossible for this court 

to determine whether his prior convictions were for enumerated felonies under 

the categorical approach because, at the time of his convictions, the Mississippi 

Code Annotated had multiple statutes criminalizing the burglary of a house

and neither the superseding indictment, PSR, nor sentencing court indicated 

which of those statutes he was convicted of violating. Consequently, although 

Mississippi Code Annotated § 97-17-19 (1972) may comport with the definition 

of “generic burglary,” it is not clear that Clay was convicted of violating § 97-

17-19. Instead, his “house burglary” convictions could have been for violating 

Mississippi Code Annotated § 97-17-21 (1972) (“Burglary: Inhabited 

Dwelling”); § 97-17-23 (1972) (“Burglary: Inhabited Dwelling—Breaking in at 

Night While Armed With Deadly Weapon”); § 97-17-25 (1972) (“Burglary: 

Breaking Out of Dwelling”); § 97-17-27 (1972) (“Burglary: Breaking Inner Door 

of Dwelling at Night”); or § 97-17-29 (1972) (“Burglary: Breaking Inner Door of 

Dwelling by One Lawfully in House”). Not all of these statutes comport with 

the definition of “generic burglary” in the enumerated offenses clause. See

§ 97-17-25 (criminalizing unlawful exit of a dwelling house after committing a 

crime therein, with no mention of “unlawful or unprivileged entry into, or 

remaining in” that house “with intent to commit a crime”).

Without conviction records, this court cannot conclusively determine 

which statute(s) Clay was convicted of violating—and, accordingly, whether 

his prior convictions for “house burglary” qualified as “violent felonies” under 

the ACCA’s enumerated offenses clause. Therefore, this court cannot rule out 

the possibility that the sentencing court relied solely on the residual clause to

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impose Clay’s ACCA-enhanced sentence. In the face of this ambiguity, Clay 

asks this court to reverse the district court and vacate his enhanced sentence.

In making this argument, Clay returns this court to our prior discussion 

of the appropriate standard of proof. On the record before this court, Clay has 

shown that the sentencing court “may have” relied on the residual clause to 

enhance his sentence. Therefore, if this court adopts the standard articulated 

by the Fourth and Ninth Circuits, Clay will have sustained his burden of proof 

and the district court will have had jurisdiction over his successive § 2255 

petition. However, Clay has not shown that the sentencing court “more likely 

than not” relied on the residual clause. Mississippi Code Annotated § 97-17-

19 (1972) appears to have been the primary statute criminalizing “house 

burglary” in 1982—as indicated in part by its title: “Burglary: Breaking and 

Entering Dwelling”—which makes it just as likely that the district court 

correctly identified § 97-17-19 as the statute of conviction as that it incorrectly 

identified it. Moreover, the PSR’s descriptions of Clay’s “house burglary” 

convictions suggest that § 97-17-19 was the likely statute of conviction, and 

Clay has pointed to nothing in the record indicating otherwise. See Wiese, 

896 F.3d at 725 (declaring that this court may look to the PSR “[i]n 

determining potential reliance on the residual clause by the sentencing court”). 

Therefore, if this court adopts the standard articulated by the First, Third, 

Sixth, Eighth, Tenth, and Eleventh Circuits, Clay will have failed to prove that 

his successive § 2255 petition relies on Johnson and the district court will have 

lacked jurisdiction. Cf. Beeman, 871 F.3d at 1224–25 (explaining that if “it is 

unclear from the record whether the sentencing court had relied on the 

residual clause,” the prisoner—who bears the burden of proof—“loses”)

(internal quotation marks and citations omitted).

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Faced with a situation where the standard of proof makes a difference to

the outcome,3 this court sides with the majority of circuits and holds that a 

prisoner seeking the district court’s authorization to file a successive § 2255 

petition raising a Johnson claim must show that it was more likely than not 

that he was sentenced under the residual clause. This standard best “comports 

with the general civil standard for review and with the stringent and limited 

approach of [the Antiterrorism and Effective Death Penalty Act] to successive 

habeas applications.” Wiese, 896 F.3d at 724; cf. Wright v. United States, 

624 F.2d 557, 558 (5th Cir. 1980) (“In a section 2255 motion, a petitioner has 

the burden of sustaining his contentions by a preponderance of the evidence.”).

Applying that standard to the facts in this case, Clay has failed to show 

by a preponderance of the evidence that he was sentenced under the residual 

clause and, thus, that his claim relies on Johnson. As a result, the district 

court lacked jurisdiction over his successive § 2255 petition. Moreover, because 

the district court lacked jurisdiction, there is no occasion for this court to 

address the district court’s alternate holding on the merits or the second issue 

identified in the COA. See Key, 205 F.3d at 774.

CONCLUSION

For the foregoing reasons, the district court’s order dismissing Clay’s 

successive § 2255 petition for lack of jurisdiction is AFFIRMED.

 

3 The ambiguity in the record distinguishes this case from Wiese and Taylor, where 

this court was able to resolve the appeal without deciding on a standard of proof. See Wiese, 

896 F.3d at 725 (holding that the defendant failed to show that his claim relied on Johnson

under either standard); Taylor, 873 F.3d at 482 (holding that the defendant successfully 

showed that his claim relied on Johnson under both standards).

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