United States v. Gallimore

Opinion

Appellate Case: 24-6239 Document: 11-1 Date Filed: 06/26/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 26, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-6239 (D.C. Nos. 5:24-CV-00684-R & PAUL DEWAYNE GALLIMORE, JR., 5:21-CR-00150-R-1) (W.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before EID, KELLY, and CARSON, Circuit Judges. _________________________________

Paul Gallimore, a federal prisoner proceeding pro se, 1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. We deny Gallimore’s request for a

COA and dismiss this matter.

I.

In 2021, Gallimore pleaded guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 200 months’

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Gallimore appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 24-6239 Document: 11-1 Date Filed: 06/26/2026 Page: 2

imprisonment. This lengthy sentence included an enhancement under the Armed Career

Criminal Act (“ACCA”) based on Gallimore’s four prior convictions—three of which

were for three robberies committed on three consecutive days in different locations when

he was sixteen.

Gallimore’s sentence was affirmed on direct appeal. In particular, we rejected the

argument that his three robbery convictions occurred on a single “occasion” for purposes

of the ACCA. See United States v. Gallimore, 71 F.4th 1265, 1267–69 (10th Cir. 2023)

(holding that Gallimore’s “prior convictions occurred on separate occasions” under

Wooden v. United States, 595 U.S. 360 (2022), because the robberies were committed

“on different dates with different locations and victims”). Additionally, consistent with

circuit precedent, we rejected Gallimore’s argument that a jury, not the sentencing court,

was constitutionally required to decide whether his prior convictions occurred on a single

ACCA “occasion.”

In 2024, Gallimore filed a § 2255 motion to vacate, set aside, or correct his

sentence. His motion raised three claims. The district court, however, denied the § 2255

motion on the merits and denied a COA.

Gallimore now seeks a COA on one of the three claims he raised in district court,

namely, that his § 922(g)(1) conviction is unconstitutional under the Second Amendment.

Additionally, for the first time on appeal, he argues that the district court erred in denying

him “relief under Erlinger [v. United States, 602 U.S. 821 (2024),] that[’]s retroactive.”

Aplt. Br. at 3.

2 Appellate Case: 24-6239 Document: 11-1 Date Filed: 06/26/2026 Page: 3

II.

To obtain a COA on claims the district court denied on the merits, Gallimore must

show that “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000);

see also 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.”).

A.

Gallimore first argues that his conviction must be vacated because the federal

felon in possession statute, 18 U.S.C. § 922(g)(1), is inconsistent with the Second

Amendment. The district court rejected this argument based on Tenth Circuit case law

upholding the validity of § 922(g)(1) in the face of Second Amendment challenges.

We hold that reasonable jurists would not debate the district court’s assessment of

this constitutional claim. In particular, in the wake of United States v. Rahimi, 602 U.S.

680 (2024), our circuit has categorically reaffirmed the constitutionality of § 922(g)(1).

See Vincent v. Bondi, 127 F.4th 1263, 1264–66 (10th Cir. 2025), cert. denied, 2026

WL 568283 (U.S. Mar. 2, 2026).

B.

Gallimore next argues that Erlinger’s new rule of criminal procedure applies

retroactively to vacate the ACCA enhancement to his sentence. In Erlinger, contrary to

the Tenth Circuit precedent that governed Gallimore’s direct appeal, the Supreme Court

held that defendants are “entitled to have a jury resolve ACCA’s occasions inquiry

3 Appellate Case: 24-6239 Document: 11-1 Date Filed: 06/26/2026 Page: 4

unanimously and beyond a reasonable doubt.” 602 U.S. at 835. However, the district

court determined that Erlinger does not apply retroactively on collateral review.

We hold that reasonable jurists would not debate the district court’s assessment of

Erlinger’s retroactivity. There are only two exceptions to the general rule that “a new

constitutional rule of criminal law or procedure is not generally applicable retroactively

to cases on collateral review”: “(1) rules that change what conduct is punishable under

substantive criminal law, and (2) ‘watershed rules of criminal procedure.’” United States

v. Hopkins, 920 F.3d 690, 699 (10th Cir. 2019) (quoting Teague v. Lane, 489 U.S. 288,

311 (1989)). Erlinger falls in neither category. It did not affect “what conduct is

punishable under substantive criminal law.” See Schriro v. Summerlin, 542 U.S. 348,

353 (2004) (“Rules that allocate decisionmaking authority [between judge and jury] are

prototypical procedural rules.”). And, according to Edwards v. Vannoy, 593 U.S. 255

(2021), “no new rules of criminal procedure can satisfy the watershed exception.” Id. at

271. 2

III.

For the foregoing reasons, we deny a COA and dismiss this matter.

Entered for the Court

Allison H. Eid Circuit Judge

We also note that this argument was not presented to the district court in 2

Gallimore’s § 2255 motion. As a result, it would be inappropriate for us to issue a COA on this basis. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (refusing to consider “issues that were not presented to the district court” in a § 2255 habeas case). 4