United States v. Greer

• Decision Date: 06 February 2018
• Docket Number: No. 16-1282,16-1282
• Citation: 881 F.3d 1241
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason GREER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

881 F.3d 1241

UNITED STATES of America, Plaintiff–Appellee,

v.Jason GREER, Defendant–Appellant.

No. 16-1282

United States Court of Appeals, Tenth Circuit.

FILED February 6, 2018

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the briefs), Denver, Colorado, for Defendant–Appellant.

Paul Farley (Robert C. Troyer, United States Attorney, and Robert Mark Russel, Assistant United States Attorney, on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff–Appellee.

Before McHUGH, McKAY, and KELLY, Circuit Judges.

McHUGH, Circuit Judge.

Jason Greer appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Mr. Greer contends that the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), finding unconstitutional the residual clause of the Armed Career Criminal Act, also invalidates the identically worded provision in the mandatory United States Sentencing Guidelines. He argues that he is entitled to resentencing because the court relied on the residual clause of the mandatory Guidelines to enhance his sentence. The district court denied Mr. Greer's motion, holding that he was sentenced under the element clause of the mandatory Guidelines rather than the residual clause. Exercising jurisdiction under §§ 1291 and 2255(d), we affirm.

I. BACKGROUND

Mr. Greer was convicted in 2002 of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). At sentencing, the court found that Mr. Greer had four previous Colorado convictions which qualified as crimes of violence: (1) escape; (2) third degree assault; (3) second degree burglary of a dwelling; and (4) second degree assault on a peace officer. Relying on these offenses, the district court concluded that Mr. Greer qualified as a career offender under § 4B1.1(a) of the United States Sentencing Guidelines ("Guidelines"). This provision requires substantially increased sentences for defendants who have "two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). A "crime of violence" is a felony that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force or element clause], or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the enumerated offenses clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].

Id. § 4B1.2(a).¹ On November 29, 2002, the court sentenced Mr. Greer to 188 months' imprisonment and five years of supervised release. United States v. Greer , 85 Fed.Appx. 181, 181–82 (10th Cir. 2004) ( Greer I ) (unpublished). This court subsequently dismissed his direct appeal, and the district court denied his first 28 U.S.C. § 2255 motion. His judgment of conviction became final on August 5, 2005.

In 2015, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague. Johnson , 135 S.Ct. at 2560, 2563.

Subsequently, the Court held that Johnson was a substantive rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Although the enumerated offenses clause and the element clause remained intact, defendants whose sentences were enhanced under the ACCA's residual clause were entitled to resentencing. See Johnson , 135 S.Ct. at 2563 ("Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act's definition of a violent felony [the force/element clause].")

Within one year of the Supreme Court's decision in Johnson , Mr. Greer moved for authorization under 28 U.S.C. § 2255(h) to file a second habeas petition. Mr. Greer contended his sentence violated Johnson because the district court relied on the identically worded residual clause of the mandatory Guidelines to determine that his second degree assault on a peace officer constituted a crime of violence.² The district court denied Mr. Greer's motion without reaching his Johnson claims because it concluded Mr. Greer was convicted under the element clause, rather than the residual clause of the Guidelines. But it granted Mr. Greer a certificate of appealability, permitting him to appeal the district court's decision to this court.

While Mr. Greer's appeal was pending, the Supreme Court decided Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). In Beckles , the petitioner moved for § 2255 relief arguing that Johnson 's holding extended to the residual clause of the current Guidelines. Id. at 891. The Supreme Court rejected this argument, emphasizing that the advisory Guidelines were not subject to vagueness challenges because "they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. at 892. However, the Court "le[ft] open the question" whether defendants who were sentenced under the mandatory Guidelines—as Mr. Greer was—"may mount vagueness attacks on their sentences." Id. at 903 n.4 (Sotomayor, J., concurring in the judgment). Mr. Greer now asks this court to answer that question.

II. DISCUSSION

"On appeal from the denial of a § 2255 motion, ordinarily we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Barrett , 797 F.3d 1207, 1213 (10th Cir. 2015) (internal quotation marks omitted). We are not bound by the district court's reasoning and may "affirm on any ground adequately supported by the record." United States v. Damato , 672 F.3d 832, 844 (10th Cir. 2012) (internal quotation marks omitted).

Before addressing the merits of Mr. Greer's claim, he must show that he can satisfy the procedural requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2255. The first of these barriers is timeliness.

Pursuant to AEDPA, post-conviction motions for habeas relief filed under § 2255 must be brought within one year of the date on which "the judgment of conviction becomes final" or "the right asserted [by petitioner] 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." 28 U.S.C. § 2255(f)(1), (3). A rule is newly recognized by the Supreme Court when it is "not dictated by precedent." Chaidez v. United States , 568 U.S. 342, 347, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (internal quotation marks omitted). Rules are dictated by precedent when they are "apparent to all reasonable jurists." Id. (internal quotation marks omitted). Conversely, a rule is not new if it is "merely an application" of an existing right or principle. Id. at 348, 133 S.Ct. 1103 (internal quotation marks omitted). Mr. Greer claims the government waived any timeliness defense by conceding he had "asserte[d] a claim based on Johnson ," and that the government "knowingly failed to press" a timeliness argument in the district court. But review of the government's district court brief refutes the claim that this concession was intended to waive the timeliness issue. Rather than "deliberately steer[ing] the District Court away from the question [of timeliness] and towards the merits" of the motion, Wood v. Milyard , 566 U.S. 463, 474, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012), the government argued extensively that the motion was untimely because Johnson did not apply retroactively to Guidelines cases on collateral review. Indeed, immediately after characterizing Mr. Greer's claim as a Johnson claim, the government argued that, because "the ‘right’ initially recognized in Johnson has not been made retroactively applicable [to] collateral proceedings challenging the application of the sentencing guidelines[,] ... § 2255(f)(3) does not apply." Therefore, the government continued, § 2255(f)(3) does not rescue Mr. Greer's claim because it relies on "the rule that the [G]uidelines residual clause is unconstitutional—a rule the Tenth Circuit (but not the Supreme Court) has recognized as an extension of Johnson ."³ This argument adequately preserved the government's argument and Mr. Greer's motion is untimely unless he can show that it is based on a right newly recognized and made retroactive on collateral review by the Supreme Court.

In an attempt to make this showing, Mr. Greer relies on our recent decision in United States v. Snyder , 871 F.3d 1122 (10th Cir. 2017), petition for cert. filed (U.S. Dec. 19, 2017) (No. 17-7157). He asserts that his petition is timely under Snyder because, although he was not sentenced under the ACCA, he has "asserted" a Johnson claim. Mr. Greer's interpretation of Snyder would require this court to find that, no matter what the underlying claim, any petitioner can avoid AEDPA's clear time limits simply by invoking a right newly recognized by the Supreme Court. Despite its broad language, Snyder is not so all encompassing.

In Snyder , the petitioner pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As a result of two prior convictions and his current offense, Mr. Snyder was sentenced under the enhanced penalty provisions of the ACCA. See 18 U.S.C. § 924(e). Like the Guidelines, the ACCA enhances a defendant's sentence if he has three prior convictions for a "violent felony." Id. § 924(e)(1). A "violent felony" under the ACCA mirrors the definition of a "crime of violence" under the Guidelines. Compare 18 U.S.C. § 924(e)(2)(B), with U.S.S.G. § 4B1.2(a).

Although Mr. Snyder objected to the ACCA enhancement at sentencing, he did so on the ground that the fact of his prior convictions had not been alleged in the indictment or found by a jury. Snyder , 871...