FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2078 (D.C. Nos. 1:16-CV-00548-MV-CG and ERIC LAMONT JOHNSON, 1:03-CR-00477-MV-1) (D. N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Eric Johnson seeks a certificate of appealability (COA) to appeal the district
court’s orders denying his 28 U.S.C. § 2255 motion and his Federal Rule of Civil
Procedure 59(e) motions. His appointed counsel also moves for leave to withdraw.1
We deny Johnson’s request for a COA to appeal the order denying his § 2255 motion,
vacate the district court’s order denying his Rule 59(e) motions, deny Johnson’s
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 After the district court denied his § 2255 motion, Johnson filed a notice of appeal through appointed counsel. But appointed counsel then moved for leave to withdraw, asserting that Johnson lacked any non-frivolous basis to appeal the district court’s order. Because appointed counsel therefore played no role in preparing Johnson’s request for a COA, we will liberally construe that request and Johnson’s other pro se filings. But we won’t act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). implied request for authorization to file a successive § 2255 motion, grant counsel’s
motion to withdraw, and dismiss this matter.
Background
Johnson pleaded guilty in federal district court to possessing a firearm during
and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
The district court found that Johnson was a career offender and increased his
sentence pursuant to U.S.S.G. § 4B1.2(a)(2). Johnson filed a timely § 2255 motion,
but the district court denied the motion, and we declined to grant Johnson a COA. See
United States v. Johnson, 529 F. App’x 876 (10th Cir. 2013) (unpublished).
Three years later, Johnson sought permission to file a second or successive
§ 2255 motion. He argued that his sentence was unconstitutional in light of Johnson
v. United States, 135 S. Ct. 2551 (2015), and United States v. Madrid, 805 F.3d 1204
(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017).
Johnson held that the residual clause of the Armed Career Criminal Act (ACCA) was
unconstitutionally vague, 135 S. Ct. at 2563, and Madrid held that the residual clause
in § 4B1.2(a)(2) of the Guidelines was also unconstitutionally vague, 805 F.3d at
1211. We granted Johnson’s request, and a magistrate judge recommended granting
Johnson’s § 2255 motion.
After the magistrate judge issued her recommendation, the Supreme Court held
in Beckles that “the advisory Guidelines are not subject to vagueness challenges.”
137 S. Ct. at 890. In light of Beckles, the district court declined to adopt the
magistrate judge’s recommendation, denied Johnson’s § 2255 motion, and declined
2 to grant Johnson a COA. Johnson filed a timely notice of appeal through counsel.
Afterwards, Johnson submitted two pro se post-judgment motions, which we
interpreted as timely Rule 59(e) motions. See Fed. R. Civ. P. 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.”). As a result, we abated this appeal pending the district court’s disposition
of these motions. See Fed. R. App. P. 4(a)(4) (stating that notice of appeal “becomes
effective” after post-judgment motions are disposed of).
The magistrate judge recommended denying both Rule 59(e) motions. The
district court adopted the magistrate judge’s recommendation, and Johnson filed a
timely pro se notice of appeal.
Analysis
I. Johnson’s § 2255 motion
To appeal the district court’s order denying his § 2255 motion, Johnson must
first obtain a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Harper, 545 F.3d
1230, 1233 (10th Cir. 2008). Doing so requires Johnson to “demonstrate that
reasonable jurists would find the district court’s assessment” of his motion
“debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Johnson fails to make this showing. No reasonable jurist could disagree with
the district court’s decision to deny Johnson’s § 2255 motion. See id. In that motion,
Johnson argued that § 4B1.2(a)(2) of the Guidelines is unconstitutionally vague, and
therefore his sentencing enhancement was improper. But Beckles explicitly held that
3 the advisory Guidelines aren’t subject to vagueness challenges. See 137 S. Ct. at 890.
Thus, we decline to grant Johnson a COA on this basis.
II. Johnson’s Rule 59(e) Motions
In Johnson’s Rule 59(e) motions, he urged the district court to reconsider its
decision to deny his § 2255 motion because, according to Johnson, his California
conviction for voluntary manslaughter is no longer a crime of violence pursuant to
the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016).
But this argument isn’t within the scope of the second or successive § 2255
motion that we permitted Johnson to file. See § 2255(h); 28 U.S.C. § 2244(a)–(b). As
such, the district court should have interpreted these Rule 59(e) motions, which
raised new substantive challenges to Johnson’s sentence, as successive § 2255
motions. See United States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006) (“To the
extent that the Rule 59(e) motion presented substantive argument reasserting a
federal basis for relief from [defendant’s] underlying conviction, the district court
should have transferred the motion to this court as an additional request to file a
second § 2255 motion.”). Because the district court lacked jurisdiction to rule on
Johnson’s unauthorized successive § 2255 motions, we vacate the district court’s
ruling with respect to Johnson’s Rule 59(e) motions. See id. at 933–34 (finding that
Rule 59(e) motion constituted unauthorized second or successive § 2255 motion and
vacating district court’s order for lack of jurisdiction).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2078 (D.C. Nos. 1:16-CV-00548-MV-CG and ERIC LAMONT JOHNSON, 1:03-CR-00477-MV-1) (D. N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Eric Johnson seeks a certificate of appealability (COA) to appeal the district
court’s orders denying his 28 U.S.C. § 2255 motion and his Federal Rule of Civil
Procedure 59(e) motions. His appointed counsel also moves for leave to withdraw.1
We deny Johnson’s request for a COA to appeal the order denying his § 2255 motion,
vacate the district court’s order denying his Rule 59(e) motions, deny Johnson’s
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 After the district court denied his § 2255 motion, Johnson filed a notice of appeal through appointed counsel. But appointed counsel then moved for leave to withdraw, asserting that Johnson lacked any non-frivolous basis to appeal the district court’s order. Because appointed counsel therefore played no role in preparing Johnson’s request for a COA, we will liberally construe that request and Johnson’s other pro se filings. But we won’t act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). implied request for authorization to file a successive § 2255 motion, grant counsel’s
motion to withdraw, and dismiss this matter.
Background
Johnson pleaded guilty in federal district court to possessing a firearm during
and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
The district court found that Johnson was a career offender and increased his
sentence pursuant to U.S.S.G. § 4B1.2(a)(2). Johnson filed a timely § 2255 motion,
but the district court denied the motion, and we declined to grant Johnson a COA. See
United States v. Johnson, 529 F. App’x 876 (10th Cir. 2013) (unpublished).
Three years later, Johnson sought permission to file a second or successive
§ 2255 motion. He argued that his sentence was unconstitutional in light of Johnson
v. United States, 135 S. Ct. 2551 (2015), and United States v. Madrid, 805 F.3d 1204
(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017).
Johnson held that the residual clause of the Armed Career Criminal Act (ACCA) was
unconstitutionally vague, 135 S. Ct. at 2563, and Madrid held that the residual clause
in § 4B1.2(a)(2) of the Guidelines was also unconstitutionally vague, 805 F.3d at
1211. We granted Johnson’s request, and a magistrate judge recommended granting
Johnson’s § 2255 motion.
After the magistrate judge issued her recommendation, the Supreme Court held
in Beckles that “the advisory Guidelines are not subject to vagueness challenges.”
137 S. Ct. at 890. In light of Beckles, the district court declined to adopt the
magistrate judge’s recommendation, denied Johnson’s § 2255 motion, and declined
2 to grant Johnson a COA. Johnson filed a timely notice of appeal through counsel.
Afterwards, Johnson submitted two pro se post-judgment motions, which we
interpreted as timely Rule 59(e) motions. See Fed. R. Civ. P. 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.”). As a result, we abated this appeal pending the district court’s disposition
of these motions. See Fed. R. App. P. 4(a)(4) (stating that notice of appeal “becomes
effective” after post-judgment motions are disposed of).
The magistrate judge recommended denying both Rule 59(e) motions. The
district court adopted the magistrate judge’s recommendation, and Johnson filed a
timely pro se notice of appeal.
Analysis
I. Johnson’s § 2255 motion
To appeal the district court’s order denying his § 2255 motion, Johnson must
first obtain a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Harper, 545 F.3d
1230, 1233 (10th Cir. 2008). Doing so requires Johnson to “demonstrate that
reasonable jurists would find the district court’s assessment” of his motion
“debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Johnson fails to make this showing. No reasonable jurist could disagree with
the district court’s decision to deny Johnson’s § 2255 motion. See id. In that motion,
Johnson argued that § 4B1.2(a)(2) of the Guidelines is unconstitutionally vague, and
therefore his sentencing enhancement was improper. But Beckles explicitly held that
3 the advisory Guidelines aren’t subject to vagueness challenges. See 137 S. Ct. at 890.
Thus, we decline to grant Johnson a COA on this basis.
II. Johnson’s Rule 59(e) Motions
In Johnson’s Rule 59(e) motions, he urged the district court to reconsider its
decision to deny his § 2255 motion because, according to Johnson, his California
conviction for voluntary manslaughter is no longer a crime of violence pursuant to
the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016).
But this argument isn’t within the scope of the second or successive § 2255
motion that we permitted Johnson to file. See § 2255(h); 28 U.S.C. § 2244(a)–(b). As
such, the district court should have interpreted these Rule 59(e) motions, which
raised new substantive challenges to Johnson’s sentence, as successive § 2255
motions. See United States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006) (“To the
extent that the Rule 59(e) motion presented substantive argument reasserting a
federal basis for relief from [defendant’s] underlying conviction, the district court
should have transferred the motion to this court as an additional request to file a
second § 2255 motion.”). Because the district court lacked jurisdiction to rule on
Johnson’s unauthorized successive § 2255 motions, we vacate the district court’s
ruling with respect to Johnson’s Rule 59(e) motions. See id. at 933–34 (finding that
Rule 59(e) motion constituted unauthorized second or successive § 2255 motion and
vacating district court’s order for lack of jurisdiction).
Nevertheless, although the district court lacked jurisdiction to rule on
Johnson’s Rule 59(e) motions, we elect to construe Johnson’s notice of appeal
4 designating the order denying those motions “as an implied application to this court
for leave to file a [successive] § 2255 motion.” United States v. Nelson, 465 F.3d
1145, 1149 (10th Cir. 2006); cf. Spitznas v. Boone, 464 F.3d 1213, 1219 (10th Cir.
2006) (stating that if “the district court has incorrectly treated a second or successive
petition as a true Rule 60(b) motion and denied it on the merits, we will vacate the
district court’s order for lack of jurisdiction and construe the petitioner’s appeal as an
application to file a second or successive petition”).
We will authorize a petitioner to file a second or successive § 2255 motion if
the motion contains (1) “newly discovered evidence,” or (2) “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” § 2255(h). Johnson’s motions don’t present
new evidence. Nor do they cite a new rule of constitutional law that the Supreme
Court has made retroactively applicable to cases on collateral review. Instead,
Johnson’s Rule 59(e) motions cite Mathis, which did not create a new rule of
constitutional law. See Mathis, 136 S. Ct. at 2257 (“Our precedents make this a
straightforward case. For more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, comparing elements.” (emphasis
added)); United States v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016)
(unpublished) (stating Mathis didn’t announce new rule). Thus, we deny Johnson’s
implicit request to file a successive § 2255 motion.
5 Conclusion
We deny Johnson’s request for a COA, vacate the district court’s order
denying Johnson’s Rule 59(e) motions, deny Johnson’s implied request to file a
successive § 2255 motion, and dismiss this matter. Finally, we grant appointed
counsel’s motion to withdraw.
Entered for the Court
Nancy L. Moritz Circuit Judge