United States v. Thompson

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 27, 2022
• Docket: 21-6060
• Status: Unpublished

Opinion

Appellate Case: 21-6060 Document: 010110637724 Date Filed: 01/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-6060 (D.C. Nos. 5:21-CV-00314-F & KENTRIEL DEJUAN THOMPSON, 5:12-CR-00102-F-1) (W.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

Kentriel Dejuan Thompson, a federal prisoner appearing through counsel, seeks a

certificate of appealability (COA) to appeal from a district court order dismissing his

28 U.S.C. § 2255 motion as untimely. We deny a COA and dismiss this matter.

BACKGROUND

In 2012, Thompson conditionally pled guilty to one count of being a felon in

possession of a firearm, reserving his right to appeal from the district court’s denial of his

motion to suppress the firearm and his post-arrest statement admitting he had a firearm.

At sentencing, the district court noted he had at least three prior convictions for serious

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-6060 Document: 010110637724 Date Filed: 01/27/2022 Page: 2

drug offenses that occurred on different dates, and it sentenced him under the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), to 240 months’ imprisonment with

five years of supervised release. This court affirmed Thompson’s conviction and

sentence, see United States v. Thompson, 591 F. App’x 652, 653 (10th Cir. 2014), and the

Supreme Court denied certiorari, see 575 U.S. 1004 (2015).

Nearly six years later, in April 2021, Thompson filed the instant § 2255 motion,

seeking to vacate and correct his sentence. He argued that his prior drug convictions

could not be used for an ACCA sentence for the reasons stated in United States v. Cantu,

964 F.3d 924, 926, 928 (10th Cir. 2020) (holding that prior convictions under Okla. Stat.

tit. 63, § 2-401(A)(1), for drug offenses that occurred in 2010, could not support an

ACCA sentence because “there are multiple means by which the Oklahoma statute can be

violated, and some of those means do not satisfy the ACCA definition of serious drug

offense” (emphasis omitted)). According to Thompson, without those predicate

convictions, he would be subject to a maximum 120-month sentence. The district court

dismissed Thompson’s § 2255 motion as untimely and denied a COA.

DISCUSSION

“The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,

1241 (10th Cir. 2010). Because the district court dismissed Thompson’s motion on a

procedural ground, he can obtain a COA by showing “that jurists of reason would find it

debatable whether the petition 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

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its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We limit our

analysis to the timeliness of Thompson’s motion, as the answer to that issue “is more

apparent from the record and arguments.” Id. at 485.

Section 2255 motions are subject to a one-year statute of limitations. 28 U.S.C.

§ 2255(f). Thompson maintains that his motion was timely filed within one year of his

discovery of Cantu. As the district court recognized, although the limitations period can

run from “the date on which the facts supporting the claim or claims presented could

have been discovered through the exercise of due diligence,” id. § 2255(f)(4), a change or

clarification in existing law is not a fact that opens the one-year limitations window. See

McCloud v. United States, 987 F.3d 261, 264, 265 n.11 (2d Cir. 2021) (joining the five

circuit courts that have considered the issue and holding “that intervening developments

in case law do not create new facts within the meaning of § 2255(f)(4)”). Thus, even

assuming Cantu’s applicability to Thompson’s § 2-401(A)(1) drug convictions, that case

did not alter the fact of his convictions; rather, Cantu addressed “only . . . the legal effect

of that fact—that is, whether the conviction[s] supported application of” an ACCA

sentence. McCloud, 987 F.3d at 264; see also Whiteside v. United States, 775 F.3d 180,

184 (4th Cir. 2014) (en banc) (“Decisions that change the legal significance of certain

facts without modifying them do not qualify under [§ 2255](f)(4).”). Reasonable jurists

would not find the district court’s § 2255(f)(4) ruling debatable.

The district court also rejected Thompson’s argument that Cantu is retroactively

applicable to his sentence. Although § 2255(f)(3) runs the limitations period from the

date an asserted right was “initially recognized,” it does so only “if that right [was] newly

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recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” 28 U.S.C. § 2255(f)(3) (emphasis added). Even assuming Cantu applies here, it

is not a Supreme Court decision. Reasonable jurists would not find the district court’s

§ 2255(f)(3) ruling debatable.

Alternatively, Thompson urged the district court to equitably toll the limitations

period. “Equitable tolling of the limitations period is available when an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” United States v. Gabaldon, 522 F.3d

1121, 1124 (10th Cir. 2008) (internal quotation marks omitted). Thompson asserts that

he diligently pursued sentencing relief “through subsequent post-conviction filings up to

the date of the instant motion.” Aplt. Br. at 18. But he does not argue there were

extraordinary circumstances beyond his control that delayed his filing.

Instead, he argues he is entitled to equitable tolling because his prior drug

convictions are not ACCA predicates and he is serving an illegal sentence. The district

court characterized this argument as asserting a claim of actual innocence, see

McQuiggin v. Perkins, 569 U.S. 383, 392, 399 (2013) (holding that actual innocence can

serve as a gateway to present time-barred claims), and denied it because “a defendant

cannot be actually innocent of a noncapital sentence,” United States v. Denny, 694 F.3d

1185, 1191 (10th Cir. 2012) (internal quotation marks omitted); see also Laurson v.

Leyba, 507 F.3d 1230, 1232-33 (10th Cir. 2007) (rejecting defendant’s attempt to bypass

habeas time bar by arguing “that his sentence exceeded the permissible statutory range

and that his crime had been placed in the wrong felony class for sentencing”); accord

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United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) (holding that a claim

challenging classification of a conviction as an ACCA predicate “is not cognizable as a

claim of actual innocence”). Thompson does not address the district court’s rationale for

rejecting his equitable-tolling argument, and he has not shown that the district court’s

rejection of his equitable-tolling and actual-innocence arguments is debatable.

CONCLUSION

We deny a COA and dismiss this matter.

Entered for the Court

Nancy L. Moritz Circuit Judge