FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3126 (D.C. Nos. 2:16-CV-02437-CM & NORMAN SHAW, JR., 2:05-CR-20073-CM-1) (D. Kan.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before KELLY, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Norman Shaw, Jr., seeks a certificate of appealability (COA) to appeal the
district court’s order dismissing as untimely his motion seeking relief under
28 U.S.C. § 2255. We deny a COA and dismiss the appeal.
I. Background
Mr. Shaw pleaded guilty in 2006 to entering a bank with intent to rob it and to
bank robbery, both in violation of 18 U.S.C. § 2113(a). The district court sentenced
him to 165 months’ imprisonment. It based his sentence, in part, on a finding that he
qualified as a career offender under the advisory Sentencing Guidelines because he
had at least two prior felony convictions for crimes of violence. See U.S. Sentencing
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2005) (USSG). Mr. Shaw
did not appeal, but he filed a first § 2255 motion in 2007. The district court denied
§ 2255 relief, and we denied a COA and dismissed his appeal.
In 2016, we granted Mr. Shaw authorization to file a second § 2255 motion to
assert a claim for relief based on Johnson v. United States, 135 S. Ct. 2551 (2015).
Johnson voided, in part, the definition of a qualifying “violent felony” used for
sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at 2563.
The Supreme Court held that the “residual clause” in the definition—covering crimes
“involv[ing] conduct that presents a serious potential risk of physical injury to
another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition
against vague criminal laws. Johnson, 135 S. Ct. at 2557, 2563. It held that an
increased sentence based on the ACCA’s residual clause therefore violates a
defendant’s right to due process. Id. In Welch v. United States, 136 S. Ct. 1257,
1268 (2016), the Court made Johnson’s holding retroactive to cases on collateral
review.
We granted Mr. Shaw authorization to challenge his career-offender sentence
in a second § 2255 motion because this court had extended Johnson’s holding to
identical residual-clause language previously used to define a “crime of violence” in
USSG § 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11
(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017); In re
Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (holding a challenge to application of
the residual clause in § 4B1.2(a)(2) was “sufficiently based on Johnson to permit
2 authorization under § 2255(h)(2)”). Mr. Shaw argued in his motion that his sentence
had been unlawfully enhanced based on two previous convictions for bank robbery
and armed robbery that qualified as crimes of violence under the residual-clause
definition in § 4B1.2(a)(2).
The district court granted the government’s motion to stay the proceedings on
Mr. Shaw’s § 2255 motion pending the Supreme Court’s decision in Beckles v.
United States, 137 S. Ct. 886 (2017). Like Mr. Shaw, the petitioner in Beckles
sought to invalidate his sentence to the extent that it was based on § 4B1.2(a)(2)’s
residual clause. See id. at 891. Contrary to our decision in Madrid, the Supreme
Court rejected the petitioner’s claim that the career-offender residual clause is void
for vagueness under the reasoning in Johnson. See id. at 895. The Court
distinguished its holding in Johnson, explaining:
Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness. Id. at 892.
In light of the Supreme Court’s decision in Beckles, the district court
dismissed Mr. Shaw’s § 2255 motion as untimely. It concluded that Beckles
foreclosed his claim based on a new rule of constitutional law; therefore, his time to
file his motion was not extended under 28 U.S.C. § 2255(f)(3). Consequently, his
motion was timely pursuant to § 2255(f)(1) only if he filed it within one year of the
3 date on which his judgment of conviction became final. According to the district
court, Mr. Shaw’s second § 2255 motion filed in 2016 was therefore untimely. The
court dismissed the motion and denied a COA.
II. Discussion
Mr. Shaw must obtain a COA to pursue an appeal. See United States v.
McKenzie, 803 F.3d 1164, 1164 (10th Cir. 2015) (denying a COA to appeal dismissal
of § 2255 motion as time-barred); see also 28 U.S.C. § 2253(c). We liberally
construe his pro se opening brief and application for a COA. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002). Because the district court’s ruling rested on
procedural grounds, Mr. Shaw must show both “that jurists of reason would find it
debatable whether the [motion] states a valid claim of the denial of a constitutional
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)
(emphasis added).
We deny a COA. Although reasonable jurists would debate the district court’s
determination that Mr. Shaw’s motion was untimely, they would not find it debatable
that his motion fails to state a valid claim of the denial of a constitutional right
because Mr. Shaw’s claim under Johnson is foreclosed by the Supreme Court’s
decision in Beckles.
4 A. Reasonable Jurists Would Debate Whether Mr. Shaw’s Motion was Untimely
As relevant here, a motion filed under § 2255 is timely if it is filed within one
year of either “the date on which the judgment of conviction becomes final,”
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3126 (D.C. Nos. 2:16-CV-02437-CM & NORMAN SHAW, JR., 2:05-CR-20073-CM-1) (D. Kan.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before KELLY, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Norman Shaw, Jr., seeks a certificate of appealability (COA) to appeal the
district court’s order dismissing as untimely his motion seeking relief under
28 U.S.C. § 2255. We deny a COA and dismiss the appeal.
I. Background
Mr. Shaw pleaded guilty in 2006 to entering a bank with intent to rob it and to
bank robbery, both in violation of 18 U.S.C. § 2113(a). The district court sentenced
him to 165 months’ imprisonment. It based his sentence, in part, on a finding that he
qualified as a career offender under the advisory Sentencing Guidelines because he
had at least two prior felony convictions for crimes of violence. See U.S. Sentencing
* 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. Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2005) (USSG). Mr. Shaw
did not appeal, but he filed a first § 2255 motion in 2007. The district court denied
§ 2255 relief, and we denied a COA and dismissed his appeal.
In 2016, we granted Mr. Shaw authorization to file a second § 2255 motion to
assert a claim for relief based on Johnson v. United States, 135 S. Ct. 2551 (2015).
Johnson voided, in part, the definition of a qualifying “violent felony” used for
sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at 2563.
The Supreme Court held that the “residual clause” in the definition—covering crimes
“involv[ing] conduct that presents a serious potential risk of physical injury to
another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition
against vague criminal laws. Johnson, 135 S. Ct. at 2557, 2563. It held that an
increased sentence based on the ACCA’s residual clause therefore violates a
defendant’s right to due process. Id. In Welch v. United States, 136 S. Ct. 1257,
1268 (2016), the Court made Johnson’s holding retroactive to cases on collateral
review.
We granted Mr. Shaw authorization to challenge his career-offender sentence
in a second § 2255 motion because this court had extended Johnson’s holding to
identical residual-clause language previously used to define a “crime of violence” in
USSG § 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11
(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017); In re
Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (holding a challenge to application of
the residual clause in § 4B1.2(a)(2) was “sufficiently based on Johnson to permit
2 authorization under § 2255(h)(2)”). Mr. Shaw argued in his motion that his sentence
had been unlawfully enhanced based on two previous convictions for bank robbery
and armed robbery that qualified as crimes of violence under the residual-clause
definition in § 4B1.2(a)(2).
The district court granted the government’s motion to stay the proceedings on
Mr. Shaw’s § 2255 motion pending the Supreme Court’s decision in Beckles v.
United States, 137 S. Ct. 886 (2017). Like Mr. Shaw, the petitioner in Beckles
sought to invalidate his sentence to the extent that it was based on § 4B1.2(a)(2)’s
residual clause. See id. at 891. Contrary to our decision in Madrid, the Supreme
Court rejected the petitioner’s claim that the career-offender residual clause is void
for vagueness under the reasoning in Johnson. See id. at 895. The Court
distinguished its holding in Johnson, explaining:
Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness. Id. at 892.
In light of the Supreme Court’s decision in Beckles, the district court
dismissed Mr. Shaw’s § 2255 motion as untimely. It concluded that Beckles
foreclosed his claim based on a new rule of constitutional law; therefore, his time to
file his motion was not extended under 28 U.S.C. § 2255(f)(3). Consequently, his
motion was timely pursuant to § 2255(f)(1) only if he filed it within one year of the
3 date on which his judgment of conviction became final. According to the district
court, Mr. Shaw’s second § 2255 motion filed in 2016 was therefore untimely. The
court dismissed the motion and denied a COA.
II. Discussion
Mr. Shaw must obtain a COA to pursue an appeal. See United States v.
McKenzie, 803 F.3d 1164, 1164 (10th Cir. 2015) (denying a COA to appeal dismissal
of § 2255 motion as time-barred); see also 28 U.S.C. § 2253(c). We liberally
construe his pro se opening brief and application for a COA. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002). Because the district court’s ruling rested on
procedural grounds, Mr. Shaw must show both “that jurists of reason would find it
debatable whether the [motion] states a valid claim of the denial of a constitutional
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)
(emphasis added).
We deny a COA. Although reasonable jurists would debate the district court’s
determination that Mr. Shaw’s motion was untimely, they would not find it debatable
that his motion fails to state a valid claim of the denial of a constitutional right
because Mr. Shaw’s claim under Johnson is foreclosed by the Supreme Court’s
decision in Beckles.
4 A. Reasonable Jurists Would Debate Whether Mr. Shaw’s Motion was Untimely
As relevant here, a motion filed under § 2255 is timely if it is filed within one
year of either “the date on which the judgment of conviction becomes final,”
§ 2255(f)(1), or “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,” § 2255(f)(3). The
district court held that Mr. Shaw’s motion was untimely under both of these
provisions. But that determination is debatable under our recent decision in United
States v. Snyder, 871 F.3d 1122 (10th Cir. 2017).
The district court in Snyder held that a § 2255 motion was untimely under
§ 2255(f)(3) because the prisoner did not have a meritorious claim under Johnson.
Id. at 1126-27. We held that the court had misconstrued the statute, which “[b]y its
plain language . . . allows a § 2255 motion to be filed within one year of ‘the date on
which the right asserted was initially recognized by the Supreme Court.’” Id. at 1126
(quoting 28 U.S.C. § 2255(f)(3)). Construing “assert” as meaning “to invoke or
enforce a legal right,” we held that a motion is timely under § 2255(f)(3) if it
“invoke[s] the newly recognized right, regardless of whether or not the facts of
record ultimately support the movant’s claim.” Id. (brackets and internal quotation
marks omitted). And because the prisoner in Snyder had asserted in his motion that
his ACCA sentence was no longer valid under Johnson, his motion was timely if
filed within one year of that decision. Id.
5 Here, Mr. Shaw also invoked the newly recognized right in Johnson. He
argued in his § 2255 motion that his career-offender sentence—which was based on
residual-clause language identical to the language invalidated in Johnson—was
illegal. Johnson was decided on June 26, 2015; Mr. Shaw filed his § 2255 motion on
June 20, 2016. Under Snyder, reasonable jurists would debate whether the district
court correctly dismissed Mr. Shaw’s motion as untimely under § 2255(f).
B. Reasonable Jurists Would Not Debate Whether Mr. Shaw’s Motion States a Valid Claim of the Denial of a Constitutional Right
Even if the district court’s procedural ruling is debatable, we may not grant a
COA unless Mr. Shaw has also shown that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right.”
Slack, 529 U.S. at 484. “In reaching this determination, we will not delve into the
merits of the claim, but instead will determine only whether the petitioner has
facially alleged the denial of a constitutional right.” Fleming v. Evans, 481 F.3d
1249, 1259 (10th Cir. 2007); see also Dulworth v. Evans, 442 F.3d 1265, 1266
(10th Cir. 2006) (deciding based on a quick review of the merits that a prisoner’s
claim debatably states a valid claim of the denial of a constitutional right).
Applying the two-part Slack test applicable to procedural rulings, we have
denied a COA where there was no reasonable basis to debate that a § 2255 motion
failed to state a valid claim of the denial of a constitutional right. See United States
v. Springfield, 337 F.3d 1175, 1177-79 (10th Cir. 2003) (denying a COA because the
prisoner’s ex post facto claim was meritless based on Supreme Court precedent and
6 consistent circuit court rulings); see also English v. Cody, 241 F.3d 1279, 1282-83
(10th Cir. 2001) (denying a COA, in part, because the prisoner’s suggestive
identification claim in his habeas petition failed under Supreme Court precedent).
Here, a quick review of the merits of Mr. Shaw’s sole claim convinces us that the
constitutional issue he seeks to raise on appeal is not “adequate to deserve further
proceedings.” Fleming, 481 F.3d at 1259. He asserts in his § 2255 motion that his
career-offender sentence is invalid under Johnson. But that claim is foreclosed by
the Supreme Court’s decision in Beckles, which held that, unlike the ACCA, the
discretionary Sentencing Guidelines “are not subject to a vagueness challenge under
the Due Process Clause.” 137 S. Ct. at 892. Consequently, Mr. Shaw has not shown
that he is entitled to a COA.
III. Conclusion
We deny a COA and dismiss the appeal.
Entered for the Court
Carolyn B. McHugh Circuit Judge