United States v. Acosta

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 4, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 18-2047 v. (D.C. Nos. 1:17-CV-00190-JCH and 1:11-CR-01784-JCH-KBM-1) RONALD C. ACOSTA, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Defendant Ronald Acosta, acting pro se, seeks a certificate of appealability (COA)

to appeal the dismissal by the United States District Court for the District of New Mexico

of his motion under 28 U.S.C. § 2255 challenging his sentence. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal from a final order in a § 2255 proceeding).

(Although Defendant does not expressly request a COA, we construe his notice of appeal

as such a request. See Fed. R. App. P. 22(b)(2).) Defendant claims that he should not

have been sentenced under the Sentencing Guidelines’ career-offender enhancement, see

USSG § 4B1.1, because his prior state convictions do not support the application of that

enhancement in light of subsequent Supreme Court rulings. The district court correctly dismissed Defendant’s motion as untimely. We decline to grant a COA and dismiss the

appeal.

A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the claim was either

“debatable or wrong.” Slack, 529 U.S. at 484. If relief was denied on procedural

grounds, the COA applicant must also show “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

“Where a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district court

erred in dismissing the petition or that the petitioner should be allowed to proceed

further.” Slack, 529 U.S. at 484.

Under 28 U.S.C. § 2255(f) a defendant must file a § 2255 motion for relief within

one year of the latest of four dates, two of which are relevant here: “[T]he date on which

the judgment of conviction becomes final,” 28 U.S.C. § 2255(f)(1), and “the date on

which the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to cases

on collateral review.” 28 U.S.C. § 2255(f)(3). Defendant did not satisfy § 2255(f)(1).

2 After he pleaded guilty to violations of 21 U.S.C. § 841(b)(1)(A) (possession with intent

to distribute 500 grams or more of a mixture or substance containing a detectable amount

of methamphetamine) and 18 U.S.C. § 924(c)(1)(A) (possession of a firearm in

furtherance of a drug trafficking crime), he was sentenced and judgment was entered

against him on December 17, 2012. He did not appeal, so his conviction became final

upon expiration of the 14-day period within which to take a direct appeal. See United

States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006); Fed. R. App. P. 4(b)(1)(A).

Defendant filed this motion on February 6, 2017, more than four years later.

Defendant argues, however, that the timeliness of his motion is governed by

§ 2255(f)(3) because of two Supreme Court decisions that, according to him, newly

recognized rights retroactively applicable on collateral review: Beckles v. United States,

137 S. Ct. 886 (2017), and Mathis v. United States, 136 S. Ct. 2243 (2016). But Beckles

held that the Sentencing Guidelines are not subject to a vagueness challenge under the

Fifth Amendment’s due-process clause. See Beckles, 137 S. Ct. at 895. It clearly did not

recognize any new right. As for Mathis, it explained the requirements for determining

when a criminal statute is divisible for purposes of applying the modified categorical

approach in deciding whether a prior conviction was for a violent felony under the Armed

Career Criminal Act. See Mathis, 136 S. Ct. at 2247–56. But the Court did not recognize

a new right. “[A] case announces a new rule [only] if the result was not dictated by

precedent existing at the time the defendant's conviction became final.” Teague v. Lane,

489 U.S. 288, 301 (1989). Mathis said, however, that its holding was governed by

3 Supreme Court decisions handed down “[f]or more than 25 years.” Mathis, 136 S. Ct. at

2247, 2257.

No reasonable jurist could conclude that the district court erred in denying

Defendant’s § 2255 motion as untimely. We DENY the application for a COA and

DISMISS the appeal. We DENY Defendant’s motion to proceed in forma pauperis.

Entered for the Court

Harris L Hartz Circuit Judge