
    Linzey SMITH, Petitioner, v. UNITED STATES of America, Respondent.
    No. 15-73591
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 5, 2016 Seattle, Washington
    Filed December 09, 2016
    Alison K. Guernsey, Assistant Federal Public Defender, FDWAID—Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Petitioner
    James A. Goeke, Assistant U.S. Attorney, DOJ-United States Attorney’s Office, Eastern District of Washington, Spokane, WA, Russell E. Smoot, Assistant U.S. Attorney, USSP—Office of the U.S. Attorney, Spokane, WA, for Respondent
    Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.
   ORDER

Smith once again requests authorization to file a second or successive motion under 28 U.S.C. § 2255 to vacate his sentence as an armed career criminal pursuant to 18 U.S.C. § 924(e)(2)(B)(ii). Although Smith claims eligibility for relief under Johnson v. United States, — U.S.—, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), we are not persuaded that Smith’s motion relies on Johnson. We already decided that “[b]e-cause the record shows that petitioner’s sentence was not enhanced by the residual clause of the Armed Career Criminal Act, Johnson does not apply.” Order, Smith v. United States, No. 15-72688 (9th Cir. filed Oct. 16, 2015) (denying application to file second or successive § 2255 motion).

Instead, Smith is again attacking the application of the modified categorical approach to his predicate Washington second-degree burglary convictions under Descamps v. United States, — U.S.—, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). To timely attack the application of the modified categorical approach, Smith must have done so no more than one year after his conviction as an armed career criminal became final. 28 U.S.C. § 2255(f)(1). He did not. See Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, Smith v. United States, No. 2:04-CR-00096-JLQ (E.D. Wash. Mar. 26, 2007), ECF No. 71. Now, nearly a decade later, Smith may file a second or successive § 2255 motion by demonstrating that he may benefit from “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). Because Descamps did not announce a new rule of constitutional law, Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015), Smith fails to satisfy the prerequisites for filing a second or successive § 2255 motion. •

The motion requesting authorization to file a second or successive application for habeas corpus is DENIED. 
      
       This Disposition Is Not Appropriate for Publication and Is Not Precedent Except as Provided By Ninth Circuit Rule 36-3.
     