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), Denver, Colorado, for Defendant - Appellant. 

Timothy W. Ogilvie, Assistant United States Attorney (Mark A. Yancey, United States 

Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee. 

_________________________________ 

Before HOLMES, MATHESON, and MORITZ, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

 Richard Trent was convicted for being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under the Armed Career 

Criminal Act (“ACCA”) to 196 months in prison. 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 Court
2 

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 challenge 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 two 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 under 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 Angela 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. Kimberly’s house got into a green Volvo and 

 1

 We refer to this court’s 2014 decision 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 officer 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 armrest 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. Trent on one count of being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing the district court considered 

whether Mr. Trent’s sentence should be enhanced under the ACCA. A § 922(g)(1) 

conviction generally carries a 10-year maximum sentence, 18 U.S.C. § 924(a)(2), but the 

ACCA provides for a minimum 15-year sentence 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 two 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 did not qualify as a serious drug offense. 

The district court disagreed and sentenced him to 196 months in prison and five years of 

supervised release. 

C. Direct Appeal 

On appeal, Mr. Trent argued that his sentence should not have been enhanced 

under the ACCA. Trent I, 767 F.3d at 1051. This court affirmed. 

The panel explained the analytical framework to determine whether Mr. Trent’s 

Oklahoma conspiracy conviction should qualify under the ACCA as a serious drug 
4 

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 offense] only if all violations of the statute 

would qualify, regardless of ‘how [the specific] 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 approach” 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 alternative—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 approach to the applicable alternative to 

determine whether the offense is an ACCA predicate. 

The Trent I panel then began its analysis as follows: 

 3

 Under the ACCA, a state law conviction counts as a “serious drug offense” if it 

“involv[es] manufacturing, distributing, or possessing with intent to manufacture or 

distribute, a controlled substance . . . for which a maximum term of imprisonment of ten 

years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). 
5 

Oklahoma’s general conspiracy statute states: ‘If two or more 

persons conspire . . . [t]o commit 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). The “difficult” question was whether 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 decided the statute is divisible and 

then employed the modified categorical approach. 

Under our first rationale, we determined the Oklahoma conspiracy statute is 

divisible based on a broad understanding of how to apply Descamps to the Oklahoma 

conspiracy statute. As previously noted, the statute makes it a crime for “two or more 

persons to conspire to commit a crime.” The word “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 conspiracy, according to what crime provides the 

conspiracy’s object.” Id. (quoting Descamps, 570 U.S. at 262). This cross-referencing 

produces “alternative statutory phrases,” which 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 an 
6 

divisible whether the “alternative statutory phrases” 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 approach 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-enterprise 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 conspiracy 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 record to ascertain the crime underlying Mr. Trent’s Oklahoma 

conspiracy conviction. Because Mr. Trent had 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 Mr. 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 Government 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 his 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 should also apply to the ACCA’s definition of 

serious drug offenses. Second, he alleged 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 fact—his past conviction—that increased his sentence. Third, 

he argued his appellate counsel was ineffective by failing to amend his direct appeal to 

account for new relevant case law. Under “Supporting facts” on his first ground, Mr. 

Trent stated that the Oklahoma general conspiracy statute does not qualify as a predicate 

for ACCA enhancement. He repeatedly cited Descamps. 

While Mr. Trent’s motion was pending, 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: “Elements are the constituent parts of a 

crime’s legal definition—the things the prosecution must prove to sustain a conviction. 

... At a trial, they are what the jury must find beyond a reasonable doubt to convict the 

defendant. . . .” Id. at 2248 (quotation marks omitted). If the alternative statutory phrases 
8 

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 “faced with an alternatively phrased 

statute,” it must determine whether the relevant “listed items” are actually elements. Id. 

Mathis offered guidance on how to make the elements-versus-means 

determination. A state court decision can “definitively 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 omitted). 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 exception 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 crime 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 what it construed as Mr. Trent’s Mathis “claim” because (1) the 

Mathis claim was untimely since it was raised more than a year after his conviction had 

become final; and (2) the Mathis issue had been decided on direct 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 the “substantive merits of the motion.” Id. at *3. 

It found that Oklahoma’s conspiracy statute is divisible because the object of a given 

conspiracy is a traditional element of the crime. The court thus applied the modified 

categorical approach, determined the elements 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 for 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 district court, that the claim was timely. We 

then turn to the law of the 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 under the ACCA is controlling in this § 2255 

proceeding. No law of the case exception applies because Mathis was not an 
10 

“intervening change” in controlling law with respect to the second 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 ACCA presents a question of 

statutory interpretation, and we review the 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 held 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 also said that “assertion of an 

additional claim may also implicate the rule against second and successive petitions.” Id. 

at *3 n.3. Although we ultimately affirm the district 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” (“revised motion”), calling it “[a] supplement to 

[Mr. Trent’s] previously filed petition” and stating its purpose was “to amplify 
11 

specifically the application of the state conspiracy conviction to enhance the sentence.” 

ROA, Vol. 1 at 44. It analyzed the Oklahoma conspiracy statute, described the 

categorical approach, drew comparisons with the federal conspiracy statute, and 

concluded that Mr. Trent was previously convicted 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 the 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, the 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 whether 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 court 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 new 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 amended or supplemented 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 attempted 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 relation 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 state 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 the 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 amendment there attempted to 

add a claim that was “totally separate and distinct, in both time and type from those 

raised in [the] original motion.” 235 F.3d at 505 (quotation marks omitted); see also 

Milton v. Miller, 812 F.3d 1252, 1264 (10th Cir. 2016) (holding habeas petitioner’s 

ineffective assistance of trial counsel claim “ha[d] a dramatically different factual 

predicate” than his original ineffective 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 predicate drug offense. To hold otherwise, 

it contended, would violate Descamps and Mathis, mentioning the latter only in passing 

as newly decided. The revised motion provided additional analysis to support the pro se 

original motion, including citation of Mathis to bolster Descamps, which Mr. Trent had 

repeatedly cited in his 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 held 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 motion—Mr. Trent’s prior conviction under the 

Oklahoma conspiracy statute and its fit with 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 the 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 observation about “second or successive § 2255 

petitions,” Trent II, WL 7471346 at *3 n.3, if the court thought the revised motion should 

be construed as a second or successive motion, 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 Habeas 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 Federal Rule of Civil Procedure 15). The 

amended petition does not count as an application for purposes of the ‘second or 

successive’ petition rule.”). 

The district court more likely 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 consider it absent this court’s authorization. See 

28 U.S.C. § 2255(h) (requiring authorization from the circuit 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 the absence of circuit court 

authorization, the “district court lacks subject matter jurisdiction to decide the merits of” 

a second or successive § 2255 motion). But when, as here, the amendment related back 

to the original § 2255 motion, no second or successive issue was implicated. 

In sum, we disagree with the district court 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 legal 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 law.” As a result, this court’s second 

rationale on Mr. Trent’s direct appeal—holding that the Oklahoma conspiracy statute is 
16 

divisible and that his conviction under that statute 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, “when 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 (10th 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 case rules have developed to maintain 

consistency and avoid reconsideration of matters once decided during the course of a 

single continuing lawsuit’ . . . [I]t is not uncommon 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 ruling.’” (quoting 18 Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice & Procedure: 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, 549 (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 “only 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 consideration 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) when controlling authority has subsequently made a contrary 

decision of the law applicable to such issues; or (3) when the decision was clearly 

erroneous and would work a manifest injustice.” United States v. Alvarez, 142 F.3d 

1243, 1247 (10th Cir. 1998) (paragraph breaks omitted). The second exception, also 

 10 In unpublished § 2255 cases 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 denied 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 generally 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 opposing § 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 this 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 decided that using the procedural bar rule is 

more appropriate than the law of the case doctrine when a § 2255 motion 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 law 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 intervening change in the law of a circuit, issues disposed of on 

direct appeal generally will not be considered on a collateral 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. Islamic Republic of Iran, 52 F.3d 346, 350-51 (D.C. Cir. 1995) 

(“Because this portion of our prior opinion is unaffected by [the intervening 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 exception to the law of the case doctrine—

intervening change in the law—and does not argue the other exceptions apply. He 

contends that Mathis changed the law not only with respect 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 statute 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 binding circuit precedent function similarly 

from the perspective of a court addressing an initial § 2255 motion; typically, in both 

circumstances, the court is bound by a previous court’s decision 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 intervening 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 applicable” to the relevant issue. Alvarez, 142 F.3d at 1247. 

As we explain further below, (a) Mathis did not create a certainty 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 “certainty.” The “certainty” standard to 

determine whether an offense qualifies for ACCA enhancement 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 either its statutory definition substantially 

corresponds to [the] ‘generic’ [ACCA definition 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 convict 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-eligible] 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] . . . sentencing 
20 

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 alternatively 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 conviction, 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 immediately said: “But between those documents and 

state law, that kind of indeterminacy should prove more the exception than the rule.” Id. 

Mathis thus referenced an already-established certainty standard and gave additional 

commentary on the likelihood of reaching certainty 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 general 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. Mathis
21 

included these types of sources in its blueprint 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 divisibility 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 incorrect or insufficient. Instead, 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 resolves the means/elements question, but 

together they all but establish that [the statute’s] purpose alternatives are means.”); id. 

at 1272 n.19 (“Mathis unambiguously instructs federal courts to settle, if possible, the 

means/elements issue when applying 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 short 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 state statute. But it does not follow that the 

court was uncertain about its divisibility determination based on the state materials. The 

court noted that that federal statutory 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 asserts, his appeal rises or falls with his 

intervening-change argument.13 

III. CONCLUSION 

In Trent I, we held the Oklahoma conspiracy statute is divisible, that Mr. Trent’s 

previous conspiracy offense under the modified categorical approach is a serious drug 

offense, and that he qualified for a sentencing enhancement under the ACCA. This 

holding is the law of the case unless an exception 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 being 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 this court too, would have 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.