589 F.3d 1084 (10th Cir. 2009), 08-5157, United States v. Shipp

Docket Nº:08-5157.
Citation:589 F.3d 1084
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vauda Virgle SHIPP, Jr., Defendant-Appellant.
Attorney:John Bennett of Amarillo, TX, for Defendant-Appellant. Leena Alam, Assistant United States Attorney (Thomas Scott Woodward, Acting United States Attorney, with her on the brief), Northern District of Oklahoma, Tulsa, OK, for Plaintiff-Appellee.
Judge Panel:Before HENRY, Chief Judge, SEYMOUR and HOLMES, Circuit Judges.
Case Date:December 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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589 F.3d 1084 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Vauda Virgle SHIPP, Jr., Defendant-Appellant.

No. 08-5157.

United States Court of Appeals, Tenth Circuit.

December 16, 2009

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[Copyrighted Material Omitted]

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John Bennett of Amarillo, TX, for Defendant-Appellant.

Leena Alam, Assistant United States Attorney (Thomas Scott Woodward, Acting United States Attorney, with her on the brief), Northern District of Oklahoma, Tulsa, OK, for Plaintiff-Appellee.

Before HENRY, Chief Judge, SEYMOUR and HOLMES, Circuit Judges.

SEYMOUR, Circuit Judge.

Mr. Vauda Virgle Shipp, Jr., appeals the district court's denial of his 28 U.S.C. § 2255 habeas petition. We granted a certificate of appealability (" COA" ) on one issue: whether " Chambers v. United States, __ U.S. __, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court." See May 1, 2009 Order. We conclude that Mr. Shipp is entitled to retroactive application of Chambers to his § 2255 petition. Accordingly, we reverse and remand.


On September 14, 2005, Mr. Shipp was convicted of possessing a firearm after a felony conviction. At sentencing, he was categorized as an " armed career criminal" pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2) (2009) (the ACCA), based upon three predicate state convictions: (1) a 1984 conviction for assault with a dangerous weapon, (2) a 1984 conviction for possession of marijuana with intent to distribute, and (3) a 1987 conviction for escape for failure to report to a penal institution after he was permitted to be away on an official pass. Under § 924(e)(2), armed career criminals are subject to a statutory minimum of fifteen years' imprisonment. See Chambers, 129 S.Ct. at 689 (citing § 924(e)(1)). Although the guideline range for Mr. Shipp's offense of conviction was twenty-seven to thirty-three months, his guideline range under the ACCA was 188 to 235 months. The district court therefore sentenced him to 188 months' imprisonment.

On direct appeal, Mr. Shipp submitted challenges to his conviction and sentence, arguing inter alia that (1) the district court erred by classifying his escape charge as a violent felony and by failing to submit to the jury the question of whether his escape crime was a " violent" offense, and (2) his escape crime did not involve actual or potential violence. See United States v. Shipp, 233 Fed.Appx. 847, 851 (10th Cir.2007) (unpublished) ( Shipp I ). We rejected both arguments based on prior Tenth Circuit precedent. Id. at 851-52 (" the government need not ... prove to a jury that a defendant's prior conviction constitutes a violent felony under § 924(e)" (quoting United States v. Moore, 401 F.3d 1220, 1226 (10th Cir.2005)); " the reasons ... for holding escape to be a crime of violence apply to all escapes, whether or not violence was actually involved." (quoting United States v. Moudy, 132 F.3d 618, 620 (10th Cir.1998))).

Mr. Shipp filed a pro se petition for habeas relief under § 2255 on May 8, 2008, arguing ineffective assistance of counsel

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that resulted in a sentence " imposed in excess of the maximum authorized by law." Rec., vol. I at 25. As relevant here, he contended that " the sentencing judge erred in applying Tenth Circuit law and sentencing him as an armed career criminal for a walkaway escape conviction, when the Ninth Circuit does not treat this type of crime as a violent felony under the ACCA." United States v. Shipp, 628 F.Supp.2d 1312, 1317 (N.D.Okla.2008) ( Shipp II ).

The district court denied relief. Id. at 1320-21. Mr. Shipp filed a timely pro se petition for a COA, contending the ACCA enhancement gave rise to a " constitutional issue concern[ing] greater loss of liberty when he did not commit a prior crime of violence." Jan. 1, 2009 Mot. for a COA, at 2. On January 13, 2009, the Supreme Court decided Chambers, holding that Illinois's crime of failure to report for penal confinement fell outside the scope of the ACCA's " violent felony" definition because the offense did not have " as an element the use, attempted use, or threatened use of physical force against the person of another." 129 S.Ct. at 691. Mr. Shipp contends he is entitled to a reduction in his sentence pursuant to Chambers.


We must first determine whether we have authority to review the issues raised by petitioner. Title 28 U.S.C. § 2253 governs our review of a district court's denial of a habeas petition. Under § 2253, we must grant a COA to a habeas petitioner before he may proceed in our court. A COA 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); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (" Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘ substantial showing of the denial of a constitutional right.’ " ); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (" [W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, 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." (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))).1

The COA we previously issued is confined to the statutory issue of the retroactivity of Chambers. Nevertheless, circuit courts, including our own, have recognized that they possess the authority to expand the COA to cover uncertified, underlying constitutional claims asserted by an appellant. See e.g., Adams, 223 F.3d at 1179-80 (expanding COA containing only procedural questions to include the underlying constitutional issue); see also

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Villot v. Varner, 373 F.3d 327, 337 n. 13 (3d Cir.2004) (exercising discretion to sua sponte expand the scope of the certificate of appealability granted by motions panel, citing 3d Cir. LAR 22.1(b)); Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir.2002) (" Although neither AEDPA nor [Fed. R.App. P. 22] specifically so provides, a court of appeals not only has the power to grant a COA where the district court has denied it as to all issues, but also to expand a COA to include additional issues when the district court has granted a COA as to some but not all issues." ); Nardi v. Stewart, 354 F.3d 1134, 1136-40 (9th Cir.2004) (expanding a COA to include a claim that both the district court and a motions panel previously had declined to certify); Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir.2000) (affirming the Panel's ability to revisit a judge's determination of a procedural motion, including a COA, to confirm that it complies with applicable standards and to cure any deficiency). Before we may consider this appeal, therefore, we must examine whether Mr. Shipp's statutory challenge asserts an underlying constitutional claim.

Construing Mr. Shipp's pro se pleadings liberally, see Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982), we read Mr. Shipp's petition for a COA to raise a due process challenge to the length of his sentence. Since In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court has " made clear beyond peradventure that Winship's due process [ ] protections extend, to some degree, to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence." Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Indeed, " due process requires [ ] that the sentence for the crime of conviction not exceed the statutory maximum." United States v. Grier, 475 F.3d 556, 573 (3d Cir.2007); see also United States v. O'Flanagan, 339 F.3d 1229, 1232 n. 2 (10th Cir.2003) (defendant cannot assert due process claim under Apprendi if his sentence does not exceed...

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