FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 19, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1242 (D.C. Nos. 1:16-CV-01583-MSK WALLACE RAYMOND CROOKS, and 1:00-CR-00439-MSK-6) (D. Colo.) Defendant - Appellant.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
Appellant Wallace Raymond Crooks seeks a certificate of appealability to
appeal the district court’s dismissal of his 28 U.S.C. § 2255 habeas motion as
untimely.
In 2002, Appellant was convicted of conspiracy to possess with intent to
distribute cocaine base. He was sentenced to 360 months of imprisonment based
in part on two prior state court convictions that qualified as “crimes of violence”
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. under Section 4B1.2(a) of the then-mandatory Sentencing Guidelines. This
section defined a “crime of violence” in part to include any felony that “involves
conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2) (2001).
In 2015, the Supreme Court struck down as unconstitutionally vague an
identical definition in the Armed Career Criminal Act. Johnson v. United States,
135 S. Ct. 2551 (2015). Within a year of that decision, Appellant filed a motion
under § 2255 in which he argued that his sentence was thus unconstitutional under
Johnson because he, like the defendant in Johnson, had been sentenced based on
this unconstitutionally vague definition.
The district court dismissed his § 2255 motion as untimely under 28 U.S.C.
§ 2255(f) because it had not been brought within one year after his conviction
became final. Although Appellant argued that his motion was timely under
§ 2255(f)(3) because it had been brought within one year of “the date on which
the right asserted was initially recognized by the Supreme Court,” the district
court found this argument foreclosed by this circuit’s decision in United States v.
Greer, 881 F.3d 1241 (10th Cir. 2018). In Greer, we held that “the only right
recognized by the Supreme Court in Johnson was a defendant’s right not to have
his sentence increased under the residual clause of the ACCA,” and thus a
defendant challenging the identical definition in U.S.S.G. § 4B1.2—or any other
-2- similar or identical provision—could not rely on Johnson to make his claim
timely because “he was not sentenced under any clause of the ACCA,” but was
“attempting to apply the reasoning of Johnson in a different context not
considered by the Court.” Id. at 1248. “The Court did not consider in Johnson,
and has still not decided, whether the mandatory Guidelines can be challenged for
vagueness in the first instance, let alone whether such a challenge would prevail.
And it is not for this court acting on collateral review to do so.” Id. In United
States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir. 2019), we affirmed the
continued validity of “Greer’s holding[] that Johnson does not create a new rule
of constitutional law applicable to the mandatory Guidelines.”
The district court acknowledged that Greer’s reasoning presents a problem
for defendants, like Appellant, who were sentenced under the mandatory
Guidelines regime. Under Greer, each statute or Guideline provision that uses the
language found unconstitutional in Johnson must be separately challenged by a
defendant who has recently been convicted or sentenced under this specific statute
or provision, since a timely attempt to extend Johnson’s reasoning to another
context can only be raised by someone whose judgment of conviction has been
final for less than one year. However, no defendants have been sentenced under
the mandatory Guidelines since 2005, when the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). As all pre-Booker defendants have
-3- presumably already “exhausted their direct appeals and timely § 2255
petitions[,] . . . there is no conceivable vehicle by which a pre-Booker defendant
will be able to get the question of the constitutionality of § 4B1.2 in a mandatory-
Guidelines scheme before the Supreme Court.” (R. at 150–51 n.1.) And, in turn,
there is “no conceivable way for defendants like Mr. Crooks to be able to bring a
timely Johnson-type challenge to their sentences.” (R. at 151 n.1.) However, the
district court concluded, “To the extent that this situation creates unfair
disparities between pre-Booker defendants and others who may someday be able
to seek Johnson-type relief, this Court is unable to resolve the problem,” and “[t]o
the extent the rule in Greer yields unjust results, it is the 10th Circuit, not this
Court, that must address it.” (Id.) The district court thus dismissed Appellant’s
§ 2255 motion as untimely based on Greer.
Appellant seeks a certificate of appealability to challenge this decision.
Although he acknowledges that this panel is likewise bound by Greer, he raises
his timeliness argument in order to preserve it for further review.
We first consider whether Appellant is entitled to a certificate of
appealability. When a district court has denied a habeas petition on procedural
grounds without reaching the underlying constitutional claim, “a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
-4- right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
In considering whether reasonable jurists could debate the correctness of
the district court’s procedural dismissal of Appellant’s § 2255 motion as
untimely, we are mindful of the Supreme Court’s holding that “a COA does not
require a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). Rather, Appellant need only show that the “procedural ruling
barring relief is . . . debatable among jurists of reason,” Buck v. Davis, 137 S. Ct.
759, 777 (2017), and this standard can be satisfied even if “every jurist of reason
might agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail,” id. at 774 (quoting Miller-El, 537
U.S. at 338).
In Greer, this circuit ruled that a defendant in Appellant’s position cannot
rely on Johnson to render his challenge to U.S.S.G. § 4B1.2(a)(2) timely.
However, another circuit has reached a contrary decision on this issue. In Cross
v. United States, 892 F.3d 288
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FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 19, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1242 (D.C. Nos. 1:16-CV-01583-MSK WALLACE RAYMOND CROOKS, and 1:00-CR-00439-MSK-6) (D. Colo.) Defendant - Appellant.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
Appellant Wallace Raymond Crooks seeks a certificate of appealability to
appeal the district court’s dismissal of his 28 U.S.C. § 2255 habeas motion as
untimely.
In 2002, Appellant was convicted of conspiracy to possess with intent to
distribute cocaine base. He was sentenced to 360 months of imprisonment based
in part on two prior state court convictions that qualified as “crimes of violence”
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. under Section 4B1.2(a) of the then-mandatory Sentencing Guidelines. This
section defined a “crime of violence” in part to include any felony that “involves
conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2) (2001).
In 2015, the Supreme Court struck down as unconstitutionally vague an
identical definition in the Armed Career Criminal Act. Johnson v. United States,
135 S. Ct. 2551 (2015). Within a year of that decision, Appellant filed a motion
under § 2255 in which he argued that his sentence was thus unconstitutional under
Johnson because he, like the defendant in Johnson, had been sentenced based on
this unconstitutionally vague definition.
The district court dismissed his § 2255 motion as untimely under 28 U.S.C.
§ 2255(f) because it had not been brought within one year after his conviction
became final. Although Appellant argued that his motion was timely under
§ 2255(f)(3) because it had been brought within one year of “the date on which
the right asserted was initially recognized by the Supreme Court,” the district
court found this argument foreclosed by this circuit’s decision in United States v.
Greer, 881 F.3d 1241 (10th Cir. 2018). In Greer, we held that “the only right
recognized by the Supreme Court in Johnson was a defendant’s right not to have
his sentence increased under the residual clause of the ACCA,” and thus a
defendant challenging the identical definition in U.S.S.G. § 4B1.2—or any other
-2- similar or identical provision—could not rely on Johnson to make his claim
timely because “he was not sentenced under any clause of the ACCA,” but was
“attempting to apply the reasoning of Johnson in a different context not
considered by the Court.” Id. at 1248. “The Court did not consider in Johnson,
and has still not decided, whether the mandatory Guidelines can be challenged for
vagueness in the first instance, let alone whether such a challenge would prevail.
And it is not for this court acting on collateral review to do so.” Id. In United
States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir. 2019), we affirmed the
continued validity of “Greer’s holding[] that Johnson does not create a new rule
of constitutional law applicable to the mandatory Guidelines.”
The district court acknowledged that Greer’s reasoning presents a problem
for defendants, like Appellant, who were sentenced under the mandatory
Guidelines regime. Under Greer, each statute or Guideline provision that uses the
language found unconstitutional in Johnson must be separately challenged by a
defendant who has recently been convicted or sentenced under this specific statute
or provision, since a timely attempt to extend Johnson’s reasoning to another
context can only be raised by someone whose judgment of conviction has been
final for less than one year. However, no defendants have been sentenced under
the mandatory Guidelines since 2005, when the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). As all pre-Booker defendants have
-3- presumably already “exhausted their direct appeals and timely § 2255
petitions[,] . . . there is no conceivable vehicle by which a pre-Booker defendant
will be able to get the question of the constitutionality of § 4B1.2 in a mandatory-
Guidelines scheme before the Supreme Court.” (R. at 150–51 n.1.) And, in turn,
there is “no conceivable way for defendants like Mr. Crooks to be able to bring a
timely Johnson-type challenge to their sentences.” (R. at 151 n.1.) However, the
district court concluded, “To the extent that this situation creates unfair
disparities between pre-Booker defendants and others who may someday be able
to seek Johnson-type relief, this Court is unable to resolve the problem,” and “[t]o
the extent the rule in Greer yields unjust results, it is the 10th Circuit, not this
Court, that must address it.” (Id.) The district court thus dismissed Appellant’s
§ 2255 motion as untimely based on Greer.
Appellant seeks a certificate of appealability to challenge this decision.
Although he acknowledges that this panel is likewise bound by Greer, he raises
his timeliness argument in order to preserve it for further review.
We first consider whether Appellant is entitled to a certificate of
appealability. When a district court has denied a habeas petition on procedural
grounds without reaching the underlying constitutional claim, “a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
-4- right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
In considering whether reasonable jurists could debate the correctness of
the district court’s procedural dismissal of Appellant’s § 2255 motion as
untimely, we are mindful of the Supreme Court’s holding that “a COA does not
require a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). Rather, Appellant need only show that the “procedural ruling
barring relief is . . . debatable among jurists of reason,” Buck v. Davis, 137 S. Ct.
759, 777 (2017), and this standard can be satisfied even if “every jurist of reason
might agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail,” id. at 774 (quoting Miller-El, 537
U.S. at 338).
In Greer, this circuit ruled that a defendant in Appellant’s position cannot
rely on Johnson to render his challenge to U.S.S.G. § 4B1.2(a)(2) timely.
However, another circuit has reached a contrary decision on this issue. In Cross
v. United States, 892 F.3d 288, 293 (7th Cir. 2018), the Seventh Circuit rejected
the government’s argument “that Johnson recognized the invalidity of the residual
clause only vis-à-vis the ACCA.” The court held that this approach “suffers from
a fundamental flaw”: “It improperly reads a merits analysis into the limitations
-5- period.” Id.
Section 2255(f)(3) runs from “the date on which the right asserted was initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3) (emphasis added). It does not say that the movant must ultimately prove that the right applies to his situation; he need only claim the benefit of a right that the Supreme Court has recently recognized. An alternative reading would require that we take the disfavored step of reading “asserted” out of the statute.
Id. at 293–94. The Seventh Circuit then held that the appellants in that
case—prisoners who had been sentenced based on the crime-of-violence
definition contained in Section 4B1.2 of the then-mandatory Guidelines—had
“asserted” a right recently recognized by the Supreme Court in Johnson: “[t]he
right not to be sentenced under a rule of law using this vague language.” Id.
at 294.
The Seventh Circuit’s opinion demonstrates that reasonable jurists could
debate the merits of the procedural ruling that barred relief in this case. See
Lambright v. Stewart, 220 F.3d 1022, 1027–28 (9th Cir. 2000) (“[T]he fact that
another circuit opposes our view satisfies the standard for obtaining a COA.”);
Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006) (“Even if a question is well
settled in our circuit, [the issue] is debatable if another circuit has issued a
conflicting ruling.”); Wilson v. Sec’y Pa. Dep’t of Corr., 782 F.3d 110, 115 (3d
Cir. 2015) (holding that a conflicting decision from the Sixth Circuit
“demonstrates that the issue [the petitioner] presents is debatable among jurists of
-6- reason” (internal quotation marks omitted)). We thus hold that Appellant has
satisfied this prong of the Slack analysis.
To obtain a COA, Appellant must also show that reasonable jurists could
debate the merits of his constitutional claim for relief. See Slack, 529 U.S. at
484. However, because the district court denied his § 2255 motion on procedural
grounds, “we will not delve into the merits of the claim, but instead will
determine only whether the petition has facially alleged the denial of a
constitutional right,” Fleming v. Evans, 481 F.3d 1249, 1259 (10th Cir. 2007)
(internal quotation marks omitted), by taking a “quick look at the face of the
complaint,” Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000) (internal
quotation marks omitted). Our “quick look at the face of the complaint” in this
case satisfies us that Appellant facially alleged the denial of a constitutional right.
Id. Appellant has therefore satisfied this prong of the Slack analysis as well.
We accordingly GRANT Appellant’s request for a certificate of
appealability. We then AFFIRM the district court’s dismissal of Appellant’s
§ 2255 motion as untimely based on our precedential decisions in Greer and
Pullen.
Entered for the Court
Monroe G. McKay Circuit Judge
-7-