United States v. Snyder

• Decision Date: 21 September 2017
• Docket Number: No. 16-8117.,16-8117.
• Citation: 871 F.3d 1122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee SNYDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

871 F.3d 1122

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Lee SNYDER, Defendant-Appellant.

No. 16-8117.

United States Court of Appeals, Tenth Circuit.

FILED September 21, 2017

Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Jason M. Conder, Assistant United States Attorney, Lander, Wyoming (Christopher A. Crofts, United States Attorney, and David A. Kubichek, Assistant United States Attorney, Casper, Wyoming, on the brief), for Plaintiff-Appellee.

Before KELLY, BRISCOE, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

In this 28 U.S.C. § 2255 motion, Michael Lee Snyder asks for immediate release from federal custody on the basis that he has already served more than the maximum sentence allowed by law for his crimes. In particular, he argues that the Supreme Court's recent decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder's motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. In doing so, we conclude that Snyder has timely asserted a Johnson claim and has established cause and prejudice to avoid procedural default, but his claim fails on the merits because, after examination of the record and the relevant background legal environment, it is apparent that he was not sentenced based on the ACCA's residual clause that was invalidated in Johnson.

I

In December 2004, Snyder pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ROA, Vol. 2 at 416. A presentence report (PSR) was prepared and submitted to the district court and the parties. The PSR concluded, in a section entitled "Offense Level Computations," that Snyder was "subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) as an armed career criminal" because "[h]e ha[d] sustained two convictions for Burglary of two residences, and a conviction of a controlled substance offense, Delivery of Marijuana." Supp. ROA at 7. The PSR in turn, in a section entitled "THE Defendant'S [sic] CRIMINAL HISTORY," discussed Snyder's criminal history and noted, in pertinent part, that Snyder had a November 1994 Wyoming state conviction for delivery of marijuana, as well as two Wyoming state convictions for burglary of inhabited residences, one arising in October 1995 and the other in January 2004. Id. at 7, 12-13, 18. Finally, in a section entitled "SENTENCING OPTIONS," the PSR concluded that Snyder's "minimum term of incarceration [wa]s fifteen years and the maximum term [wa]s life" pursuant to " 18 U.S.C. § 924(e)(1)." Id. at 25.

Snyder objected to the PSR's proposed application of the ACCA on the grounds that doing so would violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the fact of his prior convictions had not been alleged in the indictment or proven to a jury beyond a reasonable doubt.

The district court sentenced Snyder on March 1, 2005. Snyder's counsel reiterated the Apprendi-based objection to Snyder being sentenced under the ACCA. At no time, however, did Snyder's counsel otherwise argue that Snyder's Wyoming burglary convictions failed to constitute predicate offenses under the ACCA. The district court rejected Snyder's Apprendi-based objection, adopted the PSR's calculations and recommendations, and sentenced Snyder to the statutory minimum sentence of 15 years, less seven months and nineteen days served on a related state sentence, for which credit could not be granted by the Federal Bureau of Prisons pursuant to 18 U.S.C. § 3585.

Snyder filed a direct appeal challenging his sentence. In doing so, he asserted only his Apprendi-based objections and made no argument that his prior convictions failed to qualify as predicate offenses under the ACCA. This court rejected Snyder's arguments and affirmed his sentence. See United States v. Snyder, 158 Fed.Appx. 942 (10th Cir. 2005) (unpublished).

On June 26, 2015, the Supreme Court decided Johnson. On October 15, 2015, Snyder filed a letter with the district court asking for assistance in obtaining relief under Johnson. ROA, Vol. 1 at 6. Then, on March 30, 2016, with the assistance of counsel, he filed a motion to vacate his sentence and for immediate release pursuant to 28 U.S.C. § 2255. Id. at 39. In this motion, he asserted that, following the Court's decision in Johnson, his Wyoming state burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law. See id. at 41.

The district court denied Snyder's motion and also denied a Certificate of Appealability (COA). See id. at 132–52; see Fed. R. App. P. 22. We granted a COA and heard argument on the merits.

II

"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) (quoting United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) ).

Timeliness

A § 2255 motion must be filed within one year of the latest of four qualifying events. 28 U.S.C. § 2255(f). As relevant here, this is the latest of either "the date on which the judgment of conviction bec[ame] final" or "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." Id.§ 2255(f)(1), (3).

The district court concluded that Snyder's motion was not timely under either of these subsections. To begin with, it concluded that the motion was not timely under § 2255(f)(1) because it was filed more than a year after the date on which his judgment of conviction became final. Further, the district court concluded that the motion was not timely under § 2255(f)(3) because, even though it alleged a right to relief under Johnson, "[t]he actual facts of record in this matter offer[ed] no basis whatsoever for the notion the sentence [Snyder] received was based on the ACCA's ‘residual clause,’ rather than its ‘enumerated offenses clause.’ " ROA at 133. In other words, the district court looked beyond the allegations contained in Snyder's § 2255 motion and determined whether Snyder was actually entitled to relief under Johnson. Id. Although, as we shall explain below, we ultimately agree with the district court that Snyder is not entitled to relief under Johnson, we disagree that his § 2255 motion was untimely.

By its plain language, the statute allows a § 2255 motion to be filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court." 28 U.S.C. § 2255(f)(3) (emphasis added). "We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import." Wall v. Kholi, 562 U.S. 545, 551, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011) (quoting Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ). To "assert" means "[t]o state positively" or "[t]o invoke or enforce a legal right." Assert , Black's Law Dictionary (10th ed. 2014). Thus, in order to be timely under § 2255(f)(3), a § 2255 motion need only "invoke" the newly recognized right, regardless of whether or not the facts of record ultimately support the movant's claim.¹

And Snyder's § 2255 motion did just that, alleging, in pertinent part, that his "ACCA sentence is no longer valid under Johnson." ROA, Vol. 1 at 41. In Johnson, the Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process" because "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson, 135 S.Ct. at 2557. Then, in Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Court held that this rule "ha[d] retroactive effect in cases on collateral review." Welch, 136 S.Ct. at 1268. Because the residual clause is invalid, "it can no longer mandate or authorize any sentence." Id. at 1265 (emphasis added). Whether or not Snyder can ultimately prevail on his motion, he asserts the right established in Johnson, to be free from a sentence purportedly authorized by the unconstitutionally vague residual clause. Thus, his § 2255 motion, filed within a year of the Court's decision in Johnson, is timely under § 2255(f)(3).

Procedural Default

"[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). "The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Id. Snyder asserts, and we agree, that he has demonstrated cause and prejudice sufficient to overcome the procedural default rule.²

Cause

Cause excusing procedural default is shown if a claim "is so novel that its legal basis [wa]s not reasonably available to counsel" at the time of the direct appeal.³ Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As is relevant here, the Supreme Court has stated that, if one of its decisions "explicitly overrule[s]" prior precedent when it articulates "a constitutional principle that had not been previously recognized but which is held to have retroactive application," then, prior to that decision, the new constitutional principle was not reasonably...