Submitted November 15, 2017 [*] San Francisco, California
to File Second or Successive Petition Under 28 U.S.C. §
K. Hoveland, South Lake Tahoe, California, for Petitioner.
Hotis Delord, Assistant United States Attorney; Krissa M.
Lanham, Deputy Appellate Chief; Elizabeth A. Strange, Acting
United States Attorney; United States Attorney's Office,
Phoenix, Arizona; for Respondent.
Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
Judges, and William E. Smith, [**] Chief District Judge.
U.S.C. § 2255
an application for authorization to file a second or
successive motion pursuant to 28 U.S.C. § 2255 to vacate
a sentence, the panel held that Mathis v. United
States, 136 S.Ct. 2243 (2016), which clarified
application of the categorical analysis to the Armed Career
Criminal Act, did not establish a new rule of constitutional
RAWLINSON, CIRCUIT JUDGE.
Arazola-Galea is a native and citizen of Honduras who has
been living in the United States since at least 2000. In
2013, Arazola-Galea was arrested by border patrol agents in
Arizona and ordered detained on a felony complaint.
Arazola-Galea pled guilty to an Information charging him with
re-entry of a previously removed alien in violation of 8
U.S.C. § 1326. Arazola-Galea also admitted a violation
of his supervised release from a prior conviction.
Investigation revealed that Arazola-Galea had previously been
deported after a felony conviction for possession of a
controlled substance in violation of Colorado Revised Statute
(C.R.S.) § 18-18-405(1). The district court determined
that the Colorado conviction was for a drug trafficking
offense as defined under U.S.S.G. §2L1.2(b)(1)(A), and
sentenced Arazola-Galea to 70 months' imprisonment.
timely filed a direct appeal, which this Court dismissed
based on the valid appellate waiver in Arazola-Galea's
plea agreement. Arazola-Galea then filed a motion to vacate
the sentence under 28 U.S.C. § 2255, arguing that his
Sixth Amendment right to counsel was violated and that the
district court lacked jurisdiction to enhance his sentence
without conducting a jury trial. The district court dismissed
the motion with prejudice based upon the plea waiver.
Arazola-Galea filed a subsequent motion for authorization to
file a second or successive habeas petition, arguing that
Johnson v. United States, 135 S.Ct. 2551 (2015)
entitled him to retroactive relief from his sentence. We
denied the motion, determining that the holding in
Johnson was not implicated.
later, Arazola-Galea filed the present motion for
authorization to file a second or successive habeas petition.
Arazola-Galea argues that, in light of the Supreme
Court's holding in Mathis v. United States, 136
S.Ct. 2243 (2016), the sentencing enhancement applied to his
Colorado conviction for possession of a controlled substance
was improper because his conviction was for an offense
broader than the generic offense described in the federal
definition of a drug trafficking offense in U.S.S.G.
§2L1.2(a) and (b). We deny Arazola-Galea's
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
petitioner may file a second or successive petition for a
writ of habeas corpus if we certify that the claim is based
upon " a new rule,  of constitutional law, 
made retroactive to cases on collateral review by the Supreme
Court,  that was previously unavailable." 28 U.S.C.
§ 2255(h)(2); 28 U.S.C. § 2244(b)(2)(A).
sole issue we must decide is whether Arazola-Galea's
application to file a second or successive habeas petition
can survive "the stringent standard" set forth in
AEDPA that generally prohibits such filings. See Goodrum
v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016).
Arazola-Galea argues that his application satisfies this
stringent standard because Mathis articulated a new
constitutional rule that ...