Bear v. U.S., No. 09–2992.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.
• Citation: 644 F.3d 700
• Parties: Marlon Dale SUN BEAR, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Docket Number: No. 09–2992.
• Decision Date: 12 July 2011

644 F.3d 700

Marlon Dale SUN BEAR, Petitioner–Appellant,
v.
UNITED STATES of America, Respondent–Appellee.

No. 09–2992.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 10, 2011.Filed: July 12, 2011.

[644 F.3d 701]

Neil Fulton, AFPD, argued, Pierre, SD, William A. Delaney, III, AFPD, on the brief, Sioux Falls, SD, for appellant.Michael A. Rotker, USDOJ, argued, Washington, DC, Eric D. Kelderman, on the brief, Pierre, SD, for appellee.Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.LOKEN, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, COLLOTON, GRUENDER, and BENTON, Circuit Judges, join.

Marlon Dale Sun Bear pleaded guilty to the second-degree murder of his uncle in Indian country. At sentencing, the district court ¹ departed upward three levels based upon Sun Bear's extensive and violent

[644 F.3d 702]

criminal history, resulting in a sentencing range of 292 to 365 months in prison under the then-mandatory Sentencing Guidelines. The court further ruled that Sun Bear's prior felony convictions for attempted escape, attempted theft of a vehicle, and attempted burglary of a commercial building were “crimes of violence” under U.S.S.G. § 4B1.2(a), resulting in a career offender enhancement that increased the guidelines range to 360 months to life. The court sentenced Sun Bear as a career offender to 360 months in prison.² Sun Bear appealed, arguing that he should not have been sentenced as a career offender because his three prior felonies were not crimes of violence. We affirmed, concluding that he was properly sentenced as a career offender because, although the attempted escape offense was not proved to be a felony, the felony convictions for attempted auto theft and attempted burglary constituted two crimes of violence warranting the career offender enhancement. United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir.2002) ( Sun Bear I ), cert. denied, 539 U.S. 916, 123 S.Ct. 2275, 156 L.Ed.2d 133 (2003).

In November 2008, counsel for Sun Bear filed a 28 U.S.C. § 2255 motion to vacate his sentence, alleging that the career offender determination violated Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), as construed by a panel of this court in United States v. Williams, 537 F.3d 969 (8th Cir.2008). There were three significant obstacles to the relief sought. First, the motion appeared to be untimely because it was not filed within one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Second, the career offender issue was raised and rejected on direct appeal. With rare exceptions, § 2255 may not be used to relitigate matters decided on direct appeal. See Davis v. United States, 417 U.S. 333, 346–47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). ³ Third, the § 2255 motion was a collateral attack on the sentencing court's interpretation and application of the Guidelines, an attack this court, and most of our sister circuits, have never found “cognizable,” ⁴ as we discuss in Part II.

The District of South Dakota § 2255 form required Sun Bear to explain why his motion was timely. He alleged:

This motion was filed within one year of the U.S. Supreme Court's decision in Begay v. United States [which] initially and newly recognized the right asserted herein. Consequently, the motion is timely filed pursuant to 28 U.S.C. § 2255(f)(3).⁵

The district court granted the government's motion to dismiss the motion as

[644 F.3d 703]

time-barred because, in the words of § 2255(f)(3), Begay did not initially recognize “a right ... made retroactively applicable to cases on collateral review.” Sun Bear v. United States, No. CIV 08–3021, 2009 WL 2033028, Jul. 8, 2009 Opinion & Order (D.S.D.). Sun Bear appealed, and the district court issued a certificate of appealability on the retroactivity issue. A panel of this court reversed, concluding that Begay announced a new substantive rule that, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), retroactively applies to career offender decisions under the Guidelines. Sun Bear v. United States, 611 F.3d 925, 929 (8th Cir.2010) ( Sun Bear II). We granted the government's petition for rehearing en banc, vacated the panel opinion, and now affirm the district court's denial of § 2255 relief.

I. Retroactivity

In Begay, the Supreme Court held that a felony conviction for driving under the influence of alcohol is not a “violent felony” for purposes of 18 U.S.C. § 924(e)(2)(B)(ii), part of the Armed Career Criminal Act (ACCA). 128 S.Ct. at 1588. The effect of this ACCA provision is to increase the sentence of one convicted of being a felon in possession of a firearm from a statutory maximum of ten years in prison to a mandatory minimum term of fifteen years. Compare 18 U.S.C. § 924(a)(2), with § 924(e)(1). Under Teague v. Lane, a new rule of criminal procedure is not retroactively applied to collateral attacks on a final conviction unless it is a “watershed” rule. However, this principle does not apply to new substantive rules, that is, to “decisions that narrow the scope of a criminal statute by interpreting its terms ... as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.” Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citations omitted).

The government has conceded in § 2255 proceedings around the country that Begay announced a new substantive rule that should be applied retroactively if the application of § 924(e)(1) at issue increased the defendant's statutory maximum sentence, which will be true with many if not most felon-in-possession convictions. At least two of our sister circuits have so held. See Welch v. United States, 604 F.3d 408, 414–15 (7th Cir.2010); United States v. Shipp, 589 F.3d 1084, 1090–91 (10th Cir.2009) (applying Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), retroactively). We are inclined to agree with the proposition as limited in this manner, but it does not resolve the retroactivity issue presented in this case. Sun Bear is not relying on the holding in Begay. Rather, he argues for the retroactive application of our panel decision in Williams that the reasoning in Begay implicitly overruled our decision in Sun Bear I that a felony conviction for attempted auto theft is a crime of violence under the career offender provisions of the Guidelines. 537 F.3d at 971, 973–75. To sustain that contention, we would have to conclude that the Supreme Court's reasoning in Begay was correctly construed by our panel in Williams and is a “right ... newly recognized by the Supreme Court” for purposes of 28 U.S.C. § 2255(f)(3).⁶ We

[644 F.3d 704]

decline to consider these issues because we agree with the government's alternative contention that Sun Bear's collateral attack on an application of the career offender guidelines provisions is not cognizable under § 2255.⁷

II. Cognizability

Section 2255 “was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343, 94 S.Ct. 2298. Like habeas corpus, this remedy “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). It provides a remedy for jurisdictional and constitutional errors, neither of which is at issue here. Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; “an error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” Id., quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

These principles are reflected in the text of § 2255, which the Supreme Court described as “somewhat lacking in precision” in Davis, 417 U.S. at 343, 94 S.Ct. 2298. A § 2255 motion may be filed by a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” § 2255(a). The court shall grant appropriate relief if it finds “that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” § 2255(b).

Applying these principles, this court and our sister circuits have consistently held “that ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice’ standard do not present a proper section 2255 claim.” Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995); accord United States v. Pregent, 190 F.3d 279, 284 (4th Cir.1999), and cases cited; United States v. Williamson, 183 F.3d 458, 462 (5th Cir.1999); Graziano v. United States, 83 F.3d 587, 590 (2d Cir.1996). Therefore, such questions “may not be re-litigated under § 2255.” United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000). Although decisions such as Auman have reserved judgment as to whether a misapplication of the Sentencing Guidelines could ever support § 2255 relief, 67 F.3d at 161, neither the parties' nor our own research have uncovered decisions in which a guidelines error was held to be a “complete miscarriage of justice” cognizable under § 2255 prior to the panel opinion in

[644 F.3d 705]

Gilbert v. United States, 609 F.3d 1159, 1163–67 (11th Cir.2010), an opinion the Eleventh Circuit vacated when it...