PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICHARD ANTHONY TRENT, Defendant - Appellant. No. 17-6041

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (Nos. 5:12-CR-00053-HE-1 and 5:16-CV-00142-HE)

________________ _________________ Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denve r, Colorado, for Defe ndant - Appellant. Timothy W. Ogilvie, Assistant United States Attorney (Mark A. Yancey, United States Attorney, with him on the brief), Oklahoma City, Okla homa, for Plaintiff - Appellee.

________________ _________________ Before HOLMES , MATHESON , and MORITZ , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ Richard Trent was convicted for bei ng a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His se ntence was enhanced under the Armed Career Criminal Act (“ACCA”) to 196 months in pr ison. On direct appeal, Mr. Trent argued that the ACCA enhancement should not have applied to him because his past conviction FILED United States Court of Appeals Tenth Circuit 

### March 6, 2018 Elisabeth A. Shumaker Clerk of Court2 under Oklahoma’s general conspiracy statute was not a serious drug offense under the ACCA. We rejected this argument and affirmed. United States v. Trent , 767 F.3d 1046, 1063 (10th Cir. 2014) (“ Trent I ”). 1 Mr. Trent then filed a 28 U. S.C. § 2255 motion to cha llenge his sentence. While that motion was pending, the Supreme Court decided Mathis v. United States , 136 S. Ct. 2243 (2016). In Mathis, the Court abrogated one of the tw o rationales we used to affirm Mr. Trent’s sentence. Id. at 2251 n.1. Mr. Trent argued that Mathis entitled him to relief. The district court denied his motion on several grounds. United States v. Trent , No. CIV16-0142-HE, 2016 WL 7471346 (W .D. Okla. Dec. 28, 2016) (“ Trent II ”). 2 The court also granted a certificate of appealability (“COA”). Exercising jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253, we affirm the denial of Mr. Trent’s § 2255 motion unde r the law of the case doctrine. Although Mathis undercut one of this court’s rationales to affirm Mr. Trent’s sentence, it did not affect our alternative rationale to affirm. I. BACKGROUND A. Factual Background When Mr. Trent, Lloyd Robinson, and An gela Keller visited Michael Kimberly’s home in Geronimo, Oklahoma in the summer of 2012, a neighbor called 911 to report that someone holding a gun outside Mr. Kimb erly’s house got into a green Volvo and

1 We refer to this court’s 2014 decisi on on Mr. Trent’s direct appeal as “ Trent I .”

2 We refer to the district court’s 2016 decision denying his § 2255 motion as

“ Trent II .”3 drove away. Trent I , 767 F.3d at 1048. After an offi cer stopped the car, he encountered the three individuals, and Mr. Trent was sitting in the back seat. The officer searched the car and found a handgun wedged behind an armres t in the back seat. Id. Mr. Robinson was released, but Mr. Trent and Ms. Keller were arrested on account of their prior felony convictions. Id. B. District Court Proceedings A jury convicted Mr. Tren t on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At senten cing the district court considered whether Mr. Trent’s sentence should be enhanced unde r the ACCA. A § 922(g)(1) conviction generally carries a 10-year maxi mum sentence, 18 U.S.C. § 924(a)(2), but the ACCA provides for a minimum 15-year senten ce if the defendant has three qualifying prior convictions for either a “violent felony ” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). Mr. Trent admitted that he had tw o previous convictions that would qualify as serious drug offenses under the ACCA. He argued, however, that his 2007 conviction under Oklahoma’s general conspiracy statute di d not qualify as a seri ous drug offense. The district court disagreed a nd sentenced him to 196 months in prison and five years of supervised release. C. Direct Appeal On appeal, Mr. Trent argued that his se ntence should not have been enhanced under the ACCA. Trent I , 767 F.3d at 1051. This court affirmed. The panel explained the analytical frame work to determine whether Mr. Trent’s Oklahoma conspiracy conviction should qua lify under the ACCA as a serious drug4 offense. It said that under the “categorical approach,” a sentencing court “looks only at the elements of the statute under which the defendant was convicted” and compares them to the elements in the ACCA statutory definition of “serious drug offense.” Id. at 1051- 52. 3 If those elements “satisfy the definition of serious drug offense in the ACCA,” then the conviction qualifies. Id. at 1058 (emphasis omitted). A “conviction [under a state statute] qualifies [as an ACCA predicate offe nse] only if all violations of the statute would qualify, regardless of ‘how [the sp ecific] offender might have committed it on a particular occasion.’” Id. at 1052 (quoting Begay v. United States , 553 U.S. 137, 141 (2008)). The panel further explained that when the prior conviction statute is “divisible,” the court uses the “modified categorical approa ch” to determine which part of the statute was violated. Id. at 1052. A statute is divisible “when it ‘sets out one or more elements of the offense in the alterna tive—for example, stating that burglary involves entry into a building or an automobile.’” Id. (quoting Descamps v. United States , 570 U.S. 254, 257 (2013) (emphasis in original)). A court may then “examine[] certain definitive underlying documents to determine which alternative the defendant’s conviction satisfied.” Id. It next applies the categorical appr oach to the applicable alternative to determine whether the offens e is an ACCA predicate. The Trent I panel then began its an alysis as follows:

3 Under the ACCA, a state law conviction co unts as a “serious drug offense” if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for wh ich a maximum term of imprisonment of ten years or more is prescribed by la w.” 18 U.S.C. § 924(e)(2)(A)(ii).5 Oklahoma’s general conspiracy st atute states: ‘If two or more persons conspire . . . [t]o comm it any crime[,] . . . they are guilty of a conspiracy.’ Okla . Stat. Ann. tit. 21, § 421(A) (1999). Obviously, the statute could be violated in many ways that have nothing to do with drugs. Id. (alterations in original). Th e “difficult” question was whet her the statute is divisible and, if so, whether the “modified categorical approach” could identify the nature of the underlying offense. Id. For two separate reasons, we de cided the statute is divisible and then employed the modifi ed categorical approach. Under our first rationale, we determined the Oklahoma conspiracy statute is divisible based on a broad un derstanding of how to apply Descamps to the Oklahoma conspiracy statute. As prev iously noted, the statute makes it a crime for “two or more persons to conspire to commit a crime.” The wo rd “crime” refers to the criminal offenses in the Oklahoma criminal code. Id. at 1057. The statute therefore can be violated by engaging in numerous types of criminal activity. In Trent I , we said that “[b]y crossreferencing the state’s criminal code, the general conspiracy statute lays out ‘multiple, alternative versions of the crime’ of cons piracy, according to what crime provides the conspiracy’s object.” Id . (quoting Descamps , 570 U.S. at 262). This cross-referencing produces “alternative statutory phrases,” wh ich would be “alternative elements” under Descamps , rendering the statute divisible even if the “alternative statutory phrases” are different means to violate the statute rather than elements in the “full” or “traditional sense.” Id. at 1060-61. 4 Put another way, the Trent I court said the conspiracy statute is

4 Trent I cited the Supreme Court’s decision in Richardson v. United States as providing a definition for “traditional element” : “[c]alling a particular kind of fact an6 divisible whether the “alternative statutory ph rases” are traditional elements or merely

means. Under our second rationale in Trent I , we found “Oklahoma’s conspiracy statute is divisible and the modified categorical approa ch is appropriate” “even if the Supreme Court [in Descamps ] was using the term elements in its traditional sense.” Id. at 1063. Based on our analysis of Oklahoma case law, the state’s uniform jury instructions, and a case about the federal continuing-criminal-enter prise statute, we concluded that a jury must agree unanimously on the object of the conspiracy to convict under the statute. Id. at 1061-62. Accordingly, we held the conspi racy statute contained alternative traditional elements and is therefore divisible. Id. at 1063. Under either the first or second rationale, once the Trent I court determined the Oklahoma conspiracy statute is divisible, it then could employ the modified categorical approach and examine the reco rd to ascertain the crime un derlying Mr. Trent’s Oklahoma conspiracy conviction. Because Mr. Trent ha d pled guilty to “conspiracy to manufacture methamphetamine,” the crime categorically fit the ACCA’s serious drug offense definition. Id. at 1057. We therefore held that M r. Trent’s conspiracy conviction was an ACCA predicate offense. Id.

‘element’ carries certain legal consequences . . . [For example,] a jury . . . cannot convict unless it unanimously finds that the Governme nt has proved each element.” 526 U.S. 813, 817 (1999).7 Because Mr. Trent had three ACCA-eligible convictions under either the first or the second rationale, we found that his ACCA sentence enhancement was proper and affirmed. Id. at 1063. D. Original Section 2255 Motion and Mathis Mr. Trent next filed a pro se § 2255 motion challenging his sentence on three grounds. First, he argued that hi s sentence was unconstitutional under Johnson v. United States , 135 S. Ct. 2551 (2015), because that decision’s invalidation of the ACCA’s residual clause defining violent felony shoul d also apply to the ACCA’s definition of serious drug offenses. Second, he allege d his sentence was substantively unreasonable and thus invalid under Alleyne v. United States , 570 U.S. 99 (2013), because the judge, rather than a jury, found a f act—his past conviction—that increased his sentence. Third, he argued his appellate counsel was ineffectiv e by failing to amend his direct appeal to account for new relevant case law. Un der “Supporting facts” on his first ground, Mr. Trent stated that the Oklahoma general cons piracy statute does not qualify as a predicate for ACCA enhancement. He repeatedly cited Descamps

. While Mr. Trent’s motion was pendi ng, the Supreme Court decided Mathis . In Mathis , the Court explicitly abrogated Trent I ’s first rationale, 136 S. Ct. at 2251 n.1, emphasizing that “elements”—for the purpose of determining a statute’s divisibility— should be understood in the traditional sense: “Eleme nts are the constituent parts of a crime’s legal definition—the things the prosec ution must prove to sustain a conviction. ... At a trial, they are what the jury must find beyond a re asonable doubt to convict the defendant. . . .” Id. at 2248 (quotation marks omitted). If the alternative statutory phrases8 are only different “means” of committing the same offense under a statute, that statute is not divisible. Id. at 2264. If a sentencing court is “f aced with an alternatively phrased statute,” it must determine whether the releva nt “listed items” are actually elements. Id. Mathis offered guidance on how to make the elements-versus-means determination. A state court decision can “d efinitively answer[ ] the question,” or “the statute on its face may resolve the issue.” Id . When state law does not resolve the question, courts may “peek at the record documents” for help: indictments, jury instructions, plea colloquies, plea agreements, and the like. Id. at 2256, 2257 n.7 (quotations and alterations om itted). The Court also noted that “such record materials will not in every case speak plainly,” and when they do not, a sentencing judge will not be able to satisfy “ Taylor ’s demand for certainty” 5 when determining whether a defendant was convicted of a[n ACCA] offense.” Id. at 2257. But, it added, “that kind of indeterminacy should prove more the excepti on than the rule.” Id. E. Amended § 2255 Motion and Denial of Motion Mr. Trent received appointed counsel, who filed a “Revision to Previously Filed § 2255 Application for Relief” (“ revised motion”) shortly after Mathis was decided. The revised § 2255 motion focused on showing the text of the Oklahoma conspiracy statute did not qualify for ACCA enhancement as a drug offense or a violent felony, and it cited Descamps and Mathis.

5 Taylor v. United States , 495 U.S. 575 (1990), held that a court may apply the categorical approach only to those components of a state cr ime that were necessary for the conviction of that crime (i .e., facts the jury had to find beyond a reasonable doubt).9 The district court denied Mr. Trent’s § 2255 motion. Trent II , No. CIV-16-0142- HE, 2016 WL 7471346 (W.D. Okla. Dec. 28, 2016). It concluded that Mr. Trent’s original pro se Johnson , Alleyne , and ineffective-assistance-of-counsel arguments lacked merit. It also rejected wh at it construed as Mr. Trent’s Mathis “claim” because (1) the Mathis claim was untimely since it was raised mo re than a year after his conviction had become final; and (2) the Mathis issue had been decided on di rect appeal, our disposition of it stood as law of the case, and no exceptions to the law of the case doctrine applied. The district court also evaluated th e “substantive merits of the motion.” Id . at *3. It found that Oklahoma’s conspiracy statut e is divisible because the object of a given conspiracy is a traditional element of the cr ime. The court thus applied the modified categorical approach, determined the elemen ts of Mr. Trent’s conspiracy offense to include manufacture of methamphetamine, and compared them with the ACCA’s serious drug offense definition to find that the ACCA’s definition was satisfied. Id . at *4. The district court accordingly denied Mr. Trent’s § 2255 motion to vacate his sentence. It also granted his request fo r a COA. Mr. Trent timely appealed. II. DISCUSSION After describing our standard of review , we address the timeliness of Mr. Trent’s Mathis claim and conclude, contrary to the distri ct court, that the claim was timely. We then turn to the law of th e case and determine that Trent I’ s second rationale on direct appeal holding that the Oklahoma conspiracy statute is divisible and that Mr. Trent’s prior conviction is a serious drug offense unde r the ACCA is controlling in this § 2255 proceeding. No law of the case exception applies because Mathis was not an10 “intervening change” in controlling law w ith respect to the se cond rationale in Trent I

. We therefore affirm on this ground and do not review the district court’s merits analysis of the Mathis claim. A. Standard of Review On an appeal arising from “the denial of a § 2255 motion for post-conviction relief, we review the district court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Cruz , 774 F.3d 1278, 1284 ( 10th Cir. 2014) (quoting United States v. Rushin , 642 F.3d 1299, 1302 (10th Cir. 2011)). Whether a prior conviction constitutes a “serious drug offense” under the AC CA presents a question of statutory interpretation, and we review th e district court’s conclusion de novo. United States v. Johnson , 630 F.3d 970, 975 (10th Cir. 2010). B. Timeliness of Mathis Claim The district court he ld that Mr. Trent’s Mathis claim was untimely because he attempted to add it after the one-year statute of limitations had expired. Trent II, 2016 WL 7471346, at *3; see 28 U.S.C. § 2255(f). The court al so said that “assertion of an additional claim may also imp licate the rule against second and successive petitions.” Id. at *3 n.3. Although we ultimately affirm the di strict court’s denial of relief, we disagree with its timeliness analysis. 1. Additional Procedural History Shortly after he was appointed, Mr. Trent’s counsel filed a “Revision to Previously Filed § 2255 Application for Relief” (“re vised motion”), calling it “[a] supplement to [Mr. Trent’s] previously filed petition” and stating its purpose was “to amplify11 specifically the application of the state cons piracy conviction to enhance the sentence.” ROA, Vol. 1 at 44. It analyzed the Ok lahoma conspiracy statute, described the categorical approach, drew comparisons w ith the federal conspiracy statute, and concluded that Mr. Trent was previously convi cted under a “general felony” statute and not a drug offense statute. Id. at 44-51. Only on page 8 of this 12-page document was Mathis mentioned: “To attempt to determine the nature of th e conspiracy by looking to its object violates . . . Descamps . . . and more recently . . . Mathis

. Id. at 51. Mathis was not otherwise cited or discussed. In its response to the revised motion, th e Government argued that Mr. Trent could

not use Mathis to reopen the issue settled in his direct appeal because Mathis did not contradict one of the rationales this court relied on to hold that his prior conviction was a serious drug offense. Id. at 61-62. It is not clear whet her the government regarded the revised motion as an attempt to amend the original by adding a Mathis claim or simply to bring Mathis to the district court’s attention as supplemental authority. In its order denying relief, the district c ourt regarded the revised motion as having raised a Mathis claim: “[Mr.] Trent’s final claim is based on Mathis .” Trent II , WL 7471346, at *2. The court said Mr. Trent’s ne w counsel “sought leave to file an amended motion”; that the “motion for leave referenced Johnson , but did not mention Mathis ”; and that the court “specifically directed . . . submission of an amended claim under Johnson , with no mention of Mathis .” Id. at *3. It said Mathis first appeared in the “amended motion.” Id . For these reasons, the court concluded that “the Mathis claim was raised after expiration of the one year limitations period.” Id.12 2. Legal Background A habeas petition “may be am ended or supplemen ted as provided in the rules of procedure applicable to civil actions.” 28 U. S.C. § 2242. Fed. R. Civ. P. 15(c)(1)(B) provides that “[a]n amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempte d to be set out—in the original pleading.” We review de novo whether Mr. Trent’s Mathis claim related back to his original § 2255 motion. See Garrett v. Fleming , 362 F.3d 692, 695 ( 10th Cir. 2004). In Mayle v. Felix , 545 U.S. 644 (2005), the Supreme Court held that “[a]n amended habeas petition . . . does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650. Although this court said that re lation back is proper “only if . . . the proposed amendment does not seek to add a new claim or to insert a new theory into the case,” United States v. Espinoza-Saenz , 235 F.3d 501, 505 ( 10th Cir. 2000) (quoting United States v. Thomas , 221 F.3d 430, 431 (3d Cir. 2000)), 6 Mayle clarified that, “So long as the original and amended petitions stat e claims that are tied to a common core of operative facts, relation back will be in order.” 545 U.S. at 664. 7

6 The Thomas decision excluded from relation back only “an entirely new claim or new theory of relief.” 221 F. 3d at 436 (emphasis added).

7 The Court cited and quoted 3 James Wm. Moore, et al., Moore’s Federal Practice ¶ 15.19[2] (3d ed. 2004), for th e proposition that “relation back [is] ordinarily allowed ‘when the new claim is based on the same facts as the original pleading and only changes the legal theory.’” 545 U.S. at 664 n.7.13 Moreover, in Espinoza-Saenz , we said the proposed am endment there attempted to add a claim that was “totally separate a nd distinct, in both time and type from those raised in [the] original motion.” 23 5 F.3d at 505 (quotation marks omitted); see also Milton v. Miller , 812 F.3d 1252, 1264 (10th Cir. 2 016) (holding habeas petitioner’s ineffective assistance of trial counsel clai m “ha[d] a dramatically different factual predicate” than his original in effective assistance of appellate counsel claim and therefore could not relate back). 3. Analysis The district court thought Mr. Trent attempted to raise a new claim under Mathis that was untimely. We conclude otherwise—the Mathis claim related back to his original § 2255 motion and therefore was timely. The revised motion focused on the text of the statute and argued that Mr. Trent’s prior conviction did not qualify as an ACCA pr edicate drug offense. To hold otherwise, it contended, would violate Descamps and Mathis , mentioning the latter only in passing as newly decided. The revise d motion provided additional anal ysis to support the pro se original motion, including citation of Mathis to bolster Descamps , which Mr. Trent had repeatedly cited in hi s original motion. See ROA, Vol. 1 at 31, 34 , 41, and 42. Although the pro se original motion and the revised motion may not completely overlap, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be he ld to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations and citations omitted).14 The reference to Mathis in the revised motion was “tied to a common core of operative facts” underlying the original mo tion—Mr. Trent’s prior conviction under the Oklahoma conspiracy statute and its fit w ith the ACCA’s definition of serious drug offense. Mayle , 545 U.S. at 664. 8 The facts supporting the Mathis claim did not “differ in both time and type from those th e original pleading set forth.” Id. at 650. The mention of Mathis in the revised motion was not “totally separate and distinct, in both time and type from [the claims] raised in [the] original motion.” Espinoza-Saenz , 235 F.3d at 505 (quotation omitted). The Mathis reference in the revised motion related back to the original § 2255 motion, and the Mathis claim was thus timely. As to the district court’s observati on about “second or successive § 2255 petitions,” Trent II , WL 7471346 at *3 n.3, if the cour t thought the revised motion should be construed as a second or successive moti on, we would disagree and instead concur with our sibling circuits that a pre-judgment request to add a claim to a § 2255 motion is not a second or successive motion; it is a motion to amend and should be considered under Federal Rule of Civil Procedure 15. See Clark v. United States , 764 F.3d 653, 658- 60 (6th Cir. 2014); United States v. Sellner , 773 F.3d 927, 931 (8th Cir. 2014); Littlejohn v. Artuz , 271 F.3d 360, 362-63 (2d Cir. 2001); Johnson v. United States , 196 F.3d 802, 804-05 (7th Cir. 1999); see also Brian R. Means, Federal Ha beas Manual § 11:69 (2017) (“Before judgment, the petitioner may amend his petition to include additional claims

8 In addition to the references to Descamps , Mr. Trent’s pro se § 2255 motion stated under the “Supporting facts” section of “Ground One”: “Oklahomas[sic] ‘General Conspiracy Statue[sic]’ does not qualify as predicate for ACCA enhancement.” ROA, Vol. 1 at 13.15 (subject to the restrictions imposed by Fe deral Rule of Civil Procedure 15). The amended petition does not count as an a pplication for purposes of the ‘second or successive’ petition rule.”). The district court more likel y meant that if an amendment asserts a claim that is deemed untimely, it would need to be pursued in a second or successive petition, and the district court would lack jurisdiction to cons ider it absent this court’s authorization. See 28 U.S.C. § 2255(h) (requiring authorization from the circu it court to invoke federal jurisdiction over a second or successive § 2255 motion); United States v. Wetzel-Sanders , 805 F.3d 1266, 1269 (10th Cir. 2015) (explaining that in th e absence of circuit court authorization, the “district court lacks subject matter jurisdiction to decide the merits of” a second or successive § 2255 motion). But wh en, as here, the amendment related back to the original § 2255 motion, no sec ond or successive issue was implicated. In sum, we disagree with the district c ourt that Mr. Trent amended his original § 2255 motion to assert an untimely claim based on Mathis . If the district court had been correct, we would need to stop here because , as explained above, it would have lacked jurisdiction over an unauthorized second or successive § 2255 motion. Instead, we next address the parties’ arguments regarding the law of the case doctrine. C. Law of the Case The following discussion presents lega l background on the law of the case doctrine and its exceptions. We then consider Mr. Trent’s arguments and conclude that Mathis was not an “intervening change in the la w.” As a result, this court’s second rationale on Mr. Trent’s direct appeal—holdi ng that the Oklahoma conspiracy statute is16 divisible and that his conviction under that st atute was a serious drug offense—stands as law of the case, precluding the § 2255 relief he seeks here. 1. Law of the Case Generally Under the “law of the case” doctrine, “whe n a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” United States v. Monsisvais , 946 F.2d 114, 115 (1 0th Cir. 1991) (quoting Arizona v. California , 460 U.S. 605, 618 (1983)); see also Kennedy v. Lubar , 273 F.3d 1293, 1298–99 (10th Cir. 2001) (“‘Law of the ca se rules have developed to maintain consistency and avoid reconsid eration of matters once decided during the course of a single continuing lawsuit’ . . . [I]t is not un common for [an] ‘appellate court . . . [to] adhere [ ] to prior rulings as the law of the case, at times despite substantial reservations as to the correctness of the ru ling.’” (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Proc edure: Jurisdiction § 4478, at 788 (1981)). 9 “[U]nder the law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments presented in a § 2255 motion that were raised and adjudicated on direct appeal.” Abernathy v. Wandes , 713 F.3d 538, 5 49 (10th Cir. 2013); see also id. (reading Davis v. United States , 417 U.S. 333, 342 (1974), as “noting that the law-of-the-case

9 “[T]he ‘law of the case’ doctrine is not an inexorable command,” White v. Murtha , 377 F.2d 428, 431 (5th Cir.1967), but “onl y a rule of practice in the courts and not a limit on their power.” Monsisvais , 946 F.2d at 116. The doctrine “directs a court’s discretion, [but] does not limit the tribunal’s power.” Arizona , 460 U.S. at 618.17 doctrine typically precludes cons ideration of issues in a § 2255 proceeding that were previously decided on direct appeal”). 10
2. Exceptions to Law of the Case Courts have recognized exceptions to the law of the case doctrine in “three exceptionally narrow circumstances”: “(1) when the evidence in a subsequent trial is substantially different; (2) wh en controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) wh en the decision was clearly erroneous and would work a manifest injustice.” United States v. Alvarez , 142 F.3d 1243, 1247 (10th Cir. 1998) (p aragraph breaks omitted). The second exception, also

10 In unpublished § 2255 case s in which the movant sought relief on a claim that was raised and rejected previously on direct appeal, we have explicitly denied the claim as “procedurally barred.” See, e.g., United States v. DeClerck , 252 F. App’ x 220, 222 (10th Cir. 2007); see also United States v. Temple , 480 F. App’x 478, 480 (10th Cir. 2012) (holding the district court correctly de nied relief based on procedural bar). We have implied the same in published decisions. See, e.g. , United States v. Nolan , 571 F.2d 528, 530 (10th Cir. 1978) (stating that issues raised in a § 2255 motion that were already decided on direct appeal will ge nerally not be reconsidered); Baca v. United States , 383 F.2d 154, 156 (10th Cir. 1967) (same). It appears that Mr. Trent’s claim based on Mathis could be resolved on this ground. Indeed, in its response brief oppos ing § 2255 relief in district court, the Government argued the claim was “procedurally barred.” ROA, Vol. 1 at 60, 62. When the district court denied relief, it described th is argument as based on “the general rule, sometimes referred to as the ‘law of the case’ rule.” Trent II , 2016 WL 7471346 at *2. On appeal, the Government argues the Mathis issue in terms of law of the case rather than procedural bar. Aplee. Br. at 10-22. Mr. Trent argues that under Abernathy , which applied law of the case in a § 2255 proceeding, his Mathis issue should proceed because of an intervening change in law. Aplt. Br. at 22. Given the way the parties have framed the Mathis issue on appeal, we follow the approach used in Abernathy , and we apply law of the case analysis to Mr. Trent’s Mathis claim. We note the Eleventh Circuit has decide d that using the proc edural bar rule is more appropriate than the law of the case doc trine when a § 2255 mo tion raises an issue already decided on direct appeal. See Stoufflet v. United States , 757 F.3d 1236, 1239-40 (11th Cir. 2014). We see no need to make a choice between the two approaches here.18 called an “intervening change in controlling law,” applies in the § 2255 context. Davis , 417 U.S. at 342 (intervening change in la w may allow for departure from law of the case in a § 2255 motion); United States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989) (per curiam) (“Absent an in tervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collatera l attack by a motion pursuant to § 2255.”). 11 An intervening change in the law allows reconsideration of a previous decision in the same case only to the extent the change affects the previous decision. See McKesson Corp. v. Isla mic Republic of Iran , 52 F.3d 346, 350-51 (D.C. Cir. 1995) (“Because this portion of our prior opinion is unaffected by [the interv ening change in the law], it remains the law of the case, not subject to reconsideration in this second . . . appeal.”). 3. Analysis: No “Intervening Change” in the Law as to Trent I ’s Second Rationale Mr. Trent relies only on the second exce ption to the law of the case doctrine— intervening change in the law—and does not argue th e other exceptions apply. He contends that Mathis changed the law not only with re spect to the first rationale in Trent I , but also the second because: (a) Mathis required courts to be “certain” that a provision in a criminal stat ute is an element; and (b) Trent I did not reach “certainty” in finding that the object of a conspiracy is a traditional element in the Oklahoma general conspiracy statute. See, e.g. , Aplt. Br. at 23-24.

11 “[T]he law-of-the-case doctrine and bind ing circuit precedent function similarly from the perspective of a court addressing an initial § 2255 motion; typically, in both circumstances, the court is bou nd by a previous court’s decisi on unless there has been an intervening change in the law.” Abernathy , 713 F.3d at 550 n.11.19 We affirm because Mathis did not create an interven ing change in the law with respect to our second rationale in Trent I . To do so, it would have needed to announce “a contrary decision of the law applic able” to the relevant issue. Alvarez , 142 F.3d at 1247. As we explain further below, (a) Mathis did not create a certaint y standard that differed from Taylor or Shepard , and (b) Trent I was not “contrary” to, but instead was consistent with, Mathis on certainty.

a. No new certainty standard in Mathis Mathis did not create a new standard for “certa inty.” The “certainty” standard to determine whether an offense qualifie s for ACCA enhanc ement derives from Taylor v. United States , 495 U.S. 575 (1990), and has been followed in Supreme Court and Tenth Circuit cases for over 25 years. Although Taylor did not use the word “certainty,” it held that an offense qualifies for the ACCA “if ei ther its statutory de finition substantially corresponds to [the] ‘generic’ [ACCA definiti on of the crime], or the charging paper and jury instructions actually required the jury to find all the elements of [the ACCA definition] in order to convic t the defendant.” 495 U.S. at 602 (emphasis added). In 2005, the Supreme Court described this holding as “ Taylor ’s demand for certainty when identifying a[n ACCA-e ligible] offense.” Shepard v. United States , 544 U.S. 13, 21 (2005). The Tenth Circuit has followed and applied the Taylor certainty standard in ACCA cases. See e.g. United States v. Huizar , 688 F.3d 1193, 1195 (10th Cir. 2012) (“And certain we must be: whether we use a categorical or the modified categorical approach, our precedent requires the government to show that Mr. Huizar’s conviction ‘necessarily’ qualifies as ‘generic’ burglary before . . . the ACCA[’s] . . . sentencing20 enhancement may be triggered.” (citing Taylor , 495 U.S. at 602; Shepard , 544 U.S. at 16, 21, 24)). Mathis comports with the Taylor certainty standard. Mathis mentions “certainty” only briefly. The Court said, in the context of determining “whether the listed items are elements or means” in “an a lternatively phrased statute,” that a court can look at state court decisions, the statute on its face, or the record of the prior conviction. 136 S. Ct. at 2256-57. As to the record of the prior c onviction, the Court noted: “Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy ‘ Taylor ’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” Id. at 2257 (quoting Shepard , 544 U.S. at 21). The Court then immediatel y said: “But between those documents and state law, that kind of indeterminacy should prove more the excep tion than the rule.” Id. Mathis thus referenced an already-establishe d certainty standard and gave additional commentary on the likelihood of reaching cert ainty when consulting record documents. b. Trent I consistent with Mathis on certainty Nothing in Trent I ’s second rationale contravenes Mathis regarding certainty. Trent I did not address certainty directly, but its approach under the second rationale to determine the divisibility of the Oklahoma ge neral conspiracy statute was consistent with Mathis

. Trent I analyzed, under the Oklahoma law, whether the object of a conspiracy is an element in the conspiracy statute. It did not find any case exactly on point but found persuasive evidence in case law and jury instructions. 767 F.3d at 1061-62. Mathis21 included these types of sources in its blue print to assess a statute’s divisibility. Mathis , 136 S. Ct. at 2256-57. Mr. Trent argues that Trent I ran afoul of Taylor and Mathis because its determination of the divisi bility question did not have requisite “certainty.” See, e.g., Aplt. Br. 23-24. But he fails to explain why Trent I ’s reading of the Oklahoma cases and jury instructions is incorre ct or insufficient. Inst ead, Mr. Trent argues that Trent I ’s use of words like “suggestive” and “appears” reflects uncertainty. Id. at 24. In that regard, Mr. Trent misunderstands what is necessary to find divisibility. The divisibility analysis contemplates a collective assessment of case law and other materials. See United States v. Titties , 852 F.3d 1257, 1271 (2017) (“On their own, none of these state law sources conclusively re solves the means/elements question, but together they all but establish that [the st atute’s] purpose alternatives are means.”); id. at 1272 n.19 (“ Mathis unambiguously instructs federal c ourts to settle, if possible, the means/elements issue when ap plying the ACCA even if there is no on-point state decision.”). The Trent I court’s cautious language does not depart from Taylor or Mathis

. It analyzed Mathis -approved materials to arrive at a conclusion. 12 Even if Trent I ’s analysis of divisibility fell s hort of the certainty required under Taylor and Mathis , it does not follow that Mathis created an intervening change in the law. This is so because, as discussed above, Mathis did not alter case law precedent

12 Mr. Trent correctly points out that Trent I ’s discussion of federal continuingcriminal-enterprise case law, 767 F.3d at 1062, falls outside Mathis ’s listing of state materials to determine the divisibility of a st ate statute. But it do es not follow that the court was uncertain about its divisibility dete rmination based on the state materials. The court noted that that federal stat utory analysis was not controlling. Id.22 established in Taylor and its progeny. And even if this panel may have reached a different conclusion on divisibility than the Trent I panel, the latter’s decision is law of the case that we must accept. As noted above, Mr. Trent argues only the intervening-change-in-law exception to the law of the case. As Mr. Trent himself as serts, his appeal rises or falls with his intervening-change argument. 13
III. CONCLUSION In Trent I , we held the Oklahoma conspiracy st atute is divisible, that Mr. Trent’s previous conspiracy offense un der the modified categorical approach is a serious drug offense, and that he qualified for a senten cing enhancement under the ACCA. This holding is the law of the case unless an excep tion to that doctrine applies. As we have shown, Mathis did not create an intervening change in the law relative to our second rationale in Trent I . Because Mr. Trent has not argued for any other exception to law of the case, we affirm the district court’s denial of his § 2255 motion. 14

13 See, e.g., Aplt. Br. at 22 (“[The Trent I decision on divisibility ], right or wrong, would ordinarily prevent the divisibility conclusion from bei ng revisited in a later action under 28 U.S.C. 2255. But this restriction does not apply when there is an intervening change in the law.”); id. at 35-36 (“To be sure, before Mathis issued, Mr. Trent could not have obtained relief. The district court, and th is court too, would ha ve been bound by this court’s decision in Mr. Trent’s direct appeal. It was only after the intervening decision in Mathis that the district court and this court could reach a different conclusion.”).

14 Because we affirm on this ground, we need not address the district court’s substantive merits analysis.