164284P.pdf   08/20/2018  Darrell Walker  v.  United States
   U.S. Court of Appeals Case No:  16-4284
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Gruender, Author, with Loken and Kelley, Circuit Judges] 
   Habeas Corpus - Armed Career Criminal Act. On appeal from denial of second 
   motion to vacate under 28 U.S.C. sec. 2255, following this court's grant 
   of authorization based on claim that Walker's prior Missouri conviction 
   for burglary of an inhabited structure no longer qualified him as an armed 
   career criminal. District court denied relief that burglary qualified a 
   violent felony under the enumerated-offenses clause. On appeal, Walker 
   argues the original sentencing court relied on residual clause. Because 
   the original sentencing court did not specify whether the residual clause 
   or the enumerated-offenses clause provided the basis for the ACCA 
   enhancement, we agree with those circuits that require the movant to show 
   by a preponderance of the evidence that the residual clause was relied on; 
   the mere possibility that residual clause was relied on is insufficient to 
   satisfy the burden. Whether the residual clause provided the basis for 
   ACCA enhancement is a factual question. Case is remanded to the district 
   court to determine in the first instance whether Walker has shown by a 
   preponderance of the evidence that his successive section 2255 claim 
   relies on Johnson's new rule invalidating the residual clause. Judge Kelly 
   concurs in part and dissents in part.