United States v. Wells

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 15, 2018
• Docket: 18-5048
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 15, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-5048 (D.C. Nos. 4:18-CV-00217-JED-JFJ and HAROLD WELLS, 4:10-CR-00116-JED-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges. _________________________________

Pro se prisoner Harold Wells seeks a certificate of appealability (“COA”) to

appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside,

or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be taken to the court of

appeals from . . . the final order in a proceeding under section 2255.”) We deny the

request for a COA and dismiss this matter.

Wells is a former officer of the Tulsa Police Department. In 2010, he and two

other officers were indicted by a grand jury in the Northern District of Oklahoma on

multiple charges related to their official duties. Following a jury trial, he was

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. convicted on four counts (two for violating federal drug laws, and two for theft of

government funds). On December 8, 2011, Wells was sentenced to a total term of 120

months imprisonment on the four counts. This court affirmed his conviction on

January 3, 2014, and the Supreme Court denied Wells’ petition for certiorari on

October 6, 2014.

Wells filed a motion to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255 in the district court on April 20, 2018.1 In the motion, he argued that

Amendment 794 to the United States Sentencing Guidelines should be applied

retroactively to vacate, set aside, or correct his sentence. Amendment 794 clarified

the minor role reduction found in U.S. Sentencing Guidelines Manual § 3B1.2. Wells

contends that Amendment 794 was not known to the public until it was promulgated

on November 15, 2015. The district court determined the motion was untimely under

§ 2255(f)(1), and that Amendment 794 cannot be applied retroactively. Thereafter the

district court entered judgment for the United States and declined to issue a COA to

Wells. Wells timely appealed.

Although the court construes Wells’ pro se filings liberally, see Odgen v. San

Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994), his request for a certificate of

appealability must be denied. “A certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). He must show that the district court’s resolution was either

1 Wells previously filed a motion to reduce his sentence under Federal Rule of Criminal Procedure 35(b)(2)(C) on May 5, 2015. App. 27. The district court denied his motion on December 13, 2017. Id. 2 “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this context,

Wells must demonstrate “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 its procedural

ruling.” Id. (internal quotation marks omitted).

After examining the record on appeal and Wells’ application for the COA, we

conclude that Wells has not met his burden. A one-year period of limitation applies

to motions filed under § 2255. This period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such government action;

(3) 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; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)–(4). A conviction is final once appeals are exhausted and the

time to file a petition for certiorari has lapsed or such a petition is denied. See United

States v. Burch, 202 F.3d 1274, 1278 (10th Cir. 2000) (citing Griffith v. Kentucky,

479 U.S. 314, 321 n.6 (1987)). In this case, Wells’ conviction became final on

October 6, 2014. See United States v. Wells, 739 F.3d 511 (10th Cir. 2014), cert.

denied, 135 S. Ct. 73 (2014). Therefore, under § 2255(f)(1), the limitation period

3 expired on October 6, 2015. Nonetheless, Wells contends that the limitation period

should restart under § 2255(f)(4), seemingly because the promulgation of

Amendment 794 is a new “fact” under that section.

Even accepting this theory that the limitation period should begin on the date

Amendment 794 was promulgated, Wells’ motion is still untimely. In such a scenario

the one-year limitation period expired on November 15, 2016, and his motion was

filed nearly a year and a half later on April 20, 2018. Further, Wells has not argued

for a basis to equitably toll the limitations period, and none appears in the record.

Therefore, Wells’ request for a COA is DENIED and this matter is

DISMISSED.

Entered for the Court

Mary Beck Briscoe Circuit Judge