United States v. Mulay ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 20, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3031
(D.C. Nos. 5-16-CV-04075-SAC and
JOSEPH V. MULAY, 5:01-CR-40033-SAC-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT
_________________________________
Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
_________________________________
In light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2251 (2015), which held that the “residual clause” of the Armed Career Criminal Act
(“ACCA”) defining “violent felony” was void for vagueness, Joseph Mulay sought and
received authorization from this court under 28 U.S.C. § 2255(h) to challenge his federal
sentence imposed in 2002. He alleged it was improperly enhanced under an identically-
worded residual clause in the United States Sentencing Guidelines (“U.S.S.G.” or the
“Guidelines”) when the Guidelines were mandatory.1

This order and judgment is not binding precedent, except under the doctrines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.
1
The Guidelines became advisory in 2005 as a result of the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). See Gall v. United States, 552
The district court denied his motion and granted him a certificate of appealability
(“COA”) so that he could bring this appeal. See 28 U.S.C. § 2253(c)(1)(B) (requiring a
COA to appeal an order denying a § 2255 motion). Exercising jurisdiction under 28
U.S.C. §§ 1291 and 2253(a), (c)(1), we affirm because under our recent decision in
United States v. Greer, __ F.3d __, 2018 WL 721675 (10th Cir. Feb. 6, 2018), Mr. Mulay
may not challenge his 2002 sentence based on an asserted right that is broader than the
one recognized in Johnson.
I. BACKGROUND
In 2001, Mr. Mulay pled guilty to (1) possession with intent to distribute 151
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent
to distribute 1.8 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1); and (3)
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). The Presentence Investigation Report (“PSR”) determined Mr.
Mulay was a “career offender” under U.S.S.G. § 4B1.1(a) because he had twice been
convicted previously of a “crime of violence” as that term was defined in § 4B1.2(a). His
previous convictions were for criminal threat and aggravated assault. The career offender
designation increased Mr. Mulay’s criminal history category from III to VI and increased
his offense level by one. After other adjustments, Mr. Mulay had an offense level of 34
and a criminal history category of VI, yielding a Guidelines range of 262 to 327 months
in prison.
U.S. 38, 46 (2007) (“As a result of our decision [in Booker], the Guidelines are now
advisory . . . .”). They were mandatory in 2002 when Mr. Mulay was sentenced.
2
The Government filed a motion for a downward departure under U.S.S.G. §
5K1.1. On February 14, 2002, the district court sentenced Mr. Mulay to 180 months in
prison on the first count, 60 months on the second count (to be served concurrently), and
60 months on the third count (to be served consecutively), for a total of 240 months in
prison. On direct appeal, this court rejected Mr. Mulay’s argument that his criminal
threat conviction was not a crime of violence. See United States v. Mulay, 77 F. App’x
455, 457-58 (10th Cir. 2003) (unpublished).
In 2014, Mr. Mulay moved under 28 U.S.C. § 2255 to vacate his sentence, arguing
his criminal threat conviction could no longer qualify as a crime of violence after United
States v. Brooks, 751 F.3d 1204 (10th Cir. 2014), which held an offense cannot be a
“crime of violence” unless a defendant could have received more than 12 months in
prison for the offense. See United States v. Mulay, 642 F. App’x 853, 854 (10th Cir.
2016) (unpublished). We denied a COA because his claim did not allege federal
constitutional error. Id. at 855.
In 2016, Mr. Mulay sought leave to file a second or successive § 2255 motion to
challenge his sentence after the Supreme Court’s decision in Johnson. We granted
permission. He then filed a § 2255 motion in district court, in which he contended that,
under Johnson, the residual clause in the mandatory Guidelines, like the ACCA’s residual
clause, was void for vagueness. Mr. Mulay argued that neither his aggravated assault nor
his criminal threat conviction qualified as a crime of violence without the residual clause,
and therefore his sentence should be vacated. The Government agreed that, under
Johnson, Mr. Mulay’s criminal threat conviction would no longer qualify as a predicate
3
crime of violence, leaving only one predicate offense instead of the two needed to apply
the § 4B1.1(a)(3) career offender enhancement. But the Government argued that,
although Johnson should apply to the Guidelines, it does not apply retroactively on
collateral review to Mr. Mulay’s sentence.
The district court agreed with the Government and denied Mr. Mulay’s motion,
ruling that Johnson cannot be applied retroactively to challenge a Guidelines sentence on
collateral review. United States v. Mulay, Nos. 01-40033-01-SAC, 2017 WL 373382, at
*5-*7 (Jan. 26, 2017). The court said that new rules of constitutional law are retroactive
on collateral review only if they are substantive or “watershed rules of criminal
procedure,” and the Johnson rule is procedural rather than substantive when applied to
the Guidelines. Id. at *2-3, *6 (quoting Montgomery v. Louisiana, 136 S. Ct. 718, 728
(2016)). It distinguished applying Johnson to the Guidelines as opposed to the ACCA,
mistakenly describing the 2002 Guidelines as “advisory” that “only guide a sentencing
court’s exercise of discretion.” Id. at *5. The court overlooked that Mr. Mulay was
sentenced when the Guidelines were still mandatory. The court issued a COA on the
question of Johnson’s retroactive application to the mandatory Guidelines, and Mr.
Mulay timely appealed.
Shortly after the district court’s decision, the Supreme Court decided Beckles v.
United States, 137 S. Ct. 886 (2017), holding that Johnson does not apply to the advisory
Guidelines. Id. at 895.
In 2002, when Mr. Mulay was sentenced, the Guidelines said a defendant was a
“career offender” when “the defendant has at least two prior felony convictions of either
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a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3) (2002).
Section 4B1.2 defined “crime of violence”:
(a) The term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
Id. at § 4B1.2(a).
The italicized portion was the residual clause. It was identical to the residual
clause in the ACCA that Johnson held unconstitutional.2 After Johnson, the Sentencing
Commission amended § 4B1.2(a)(2) to eliminate the residual clause. See U.S.S.G. Supp.
to App. C, Amend. 798 at 125 (Aug. 1, 2016). But when Mr. Mulay was sentenced in
2002, § 4B1.2(a)(2) still contained the residual clause, and the Guidelines were
mandatory.
2
The ACCA previously defined “violent felony” as follows:
[A]ny crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has as an element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion was known as the
“residual clause.” Johnson, 135 S. Ct. at 2555-56.
5
II. DISCUSSION
“[W]e review the district court’s legal rulings on a § 2255 motion de novo and its
findings of fact for clear error.” United States v. Miller, 868 F.3d 1182, 1187 (10th Cir.
2017) (quotation omitted).
On this appeal, Mr. Mulay argues that, under Johnson, his sentence should be
vacated because it was enhanced under the residual clause in § 4B1.2(a)(2) when the
Guidelines were mandatory, and that clause, like the identically worded residual clause in
the ACCA, should be held void for vagueness under Johnson.
The Government argues we should affirm the district court’s denial of § 2255
relief for three reasons: (1) Mr. Mulay’s § 2255 motion was untimely, (2) he procedurally
defaulted his void-for-vagueness argument by not raising it on direct appeal, and (3) he
may not rely on Johnson to bring a retroactive challenge to his 2002 sentence because the
right he asserts is broader than the one recognized in Johnson.
As the following discussion concludes, the Government waived its timeliness
argument, and, although we may address procedural default despite the Government’s
tardiness in raising it, we choose to resolve this appeal on the ground that Mr. Mulay
cannot rely on Johnson to bring a retroactive challenge to his sentence on collateral
review because the right he asserts here was not recognized in Johnson.
1. Timeliness
The Government belatedly argues Mr. Mulay’s motion was untimely because he
did not file it within one year of when the Supreme Court decided Johnson.
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A § 2255 motion must generally be filed within one year of “the date on which the
judgment of conviction becomes final.” See § 2255(f)(1). But it may be brought after
that time period if the movant asserts a right within one year of “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.” § 2255(f)(3).
The Government failed to challenge timeliness in the district court. Courts may
consider timeliness sua sponte unless the government affirmatively waives the issue.
Wood v. Milyard, 566 U.S. 463, 473-74 (2012). But here the Government intentionally
relinquished or abandoned any timeliness defense. We would abuse our discretion if we
were to address an intentionally abandoned argument. Id. at 474.
In Wood, the Supreme Court held the government had waived a timeliness defense
by stating to the district court it “[would] not challenge, but [was] not conceding” the
motion’s timeliness. Id. In this case, the Government argues for the first time in its
second supplemental brief that Mr. Mulay’s § 2255 motion was untimely because, even
though Mr. Mulay filed within one year of Johnson, he did not assert a right “recognized”
by the Supreme Court. Although we address this point later in our discussion of
retroactive application of Johnson, we do not address it here because the Government
waived the timeliness issue.
After the Government failed to raise timeliness in the district court or in its
opening or reply briefs on this appeal, we asked the parties to file supplemental briefs
addressing the “timeliness of Mr. Mulay’s motion under 28 U.S.C. § 2255” in light of
7
United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017). In response, the
Government again declined to challenge the timeliness of Mr. Mulay’s motion. It
acknowledged it had not raised timeliness and thus the “timeliness portion of the Snyder
decision and of [Mr.] Mulay’s motion are not implicated here.” Aplee. Supp. Br. at 6 n.2.
Only after we asked the parties to file additional supplemental briefs did the Government
argue timeliness for the first time. Aplee. Second Supp. Br. at 6-9. At oral argument, the
Government acknowledged that this court “could reasonably conclude that [the
Government has] affirmatively waived the timeliness defense.” Oral Arg. at 11:55-12:38.
We conclude the Government waived the timeliness issue.
2. Procedural Default
The Government argues Mr. Mulay has defaulted any claim that the
§ 4B1.2(a)(2) residual clause was void for vagueness because he did not raise it at
sentencing or on direct appeal. See United States v. McGaughy, 670 F.3d 1149, 1159
(10th Cir. 2012) (stating the general rule that a defendant’s failure to raise an issue on
direct appeal procedurally defaults the opportunity to raise it in a § 2255 motion
unless he or she can show cause and prejudice). Mr. Mulay did not present his
vagueness challenge on direct appeal, but the Government likewise did not raise
procedural default until this § 2255 appeal. It now urges us to consider procedural
default sua sponte. We may do so if it would further “the interests of judicial
efficiency.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (quoting Hines
v. United States, 971 F.2d 506, 509 (10th Cir. 1992)). But we find it more efficient
8
to affirm the denial of Mr. Mulay’s motion based on the following retroactivity
analysis.
3. Retroactivity on Collateral Review
Mr. Mulay has not asserted a right that is retroactive on collateral review. We
therefore affirm the decision of the district court denying his motion under 28 U.S.C.
§ 2255.
a. Legal background
Under Justice O’Connor’s plurality opinion Teague v. Lane, 489 U.S. 288 (1989),
a new constitutional rule of criminal procedure is not generally applicable to cases on
collateral review. Id. at 310.3 But substantive rules are not subject to this general
retroactivity bar. Welch v. United States, 136 S. Ct. 1257 (2016). A rule is “substantive
rather than procedural if it alters the range of conduct or the class of persons that the law
punishes.” Id. at 1264-65 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). A
rule is “new” if it “was not dictated by precedent existing at the time the defendant’s
conviction became final.” Teague, 489 U.S. at 301. In Welch, the Supreme Court
determined that Johnson recognized a new substantive rule because it altered the sentence
that a defendant could legally receive. Id. at 1265. Johnson is therefore retroactively
applicable to cases on collateral review.
3
Although Teague was a plurality opinion, a majority of the Court adopted the
Teague rule in Penry v. Lynaugh, 492 U.S. 302, 313 (1989). Teague concerned a 28
U.S.C. § 2244 challenge to a state conviction, but we have held its “nonretroactivity
doctrine applies equally to habeas petitions brought under sections 2254 and 2255.”
Daniels v. United States, 254 F.3d 1180, 1194 (10th Cir. 2001).
9
In Greer, however, this court recently said the right recognized by Johnson—and
thus the right held retroactive on collateral review in Welch—is limited to a “defendant’s
right not to have his sentence increased under the residual clause of the ACCA.” 2018
WL 721675 at *5. This court recently held that a § 2255 motion need only “invoke” a
newly recognized right to be timely. See Snyder, 871 F.3d at 1126. Applying the Snyder
standard in Greer, we held a movant who had been sentenced under the mandatory
Guidelines rather than the ACCA had not invoked such a right. 2018 WL 721675 at *5.
We affirmed denial of the § 2255 motion as untimely because the movant had not
“asserted [the] right recognized by the Supreme Court” in Johnson not to be sentenced
under the ACCA’s residual clause. Id. at *4.
b. Analysis
For Mr. Mulay to receive § 2255 relief, we must find that the residual clause in
§ 4B1.2(a)(2) of the mandatory Guidelines was void for vagueness, and that the right not
to be sentenced under the mandatory residual clause is retroactively applicable to his
2002 sentence on collateral review. Mr. Mulay’s only argument in support of
retroactivity is that the right he asserts was recognized in Johnson, which the Supreme
Court held retroactive on collateral review in Welch. But because Johnson did not
recognize the right Mr. Mulay asserts, Mr. Mulay is not entitled to relief.
Mr. Mulay argues that “Johnson newly recognized a due process right not to have
one’s criminal sentence fixed based on” the language of the residual clause, and that the
Court held that this right was retroactive on collateral review in Welch. Aplt. Reply Br.
at 19. But in Greer, as noted above, we said the right recognized in Johnson is not so
10
broad—“the only right recognized by the Supreme Court in Johnson was a defendant’s
right not to have his sentence increased under the residual clause of the ACCA.” 2018
WL 721675 at *5; see also Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring)
(stating the majority’s “formalistic distinction between mandatory and advisory
rules . . . leaves open the question whether defendants sentenced to terms of
imprisonment” when the Guidelines were mandatory may challenge their sentences on
vagueness grounds).
Although Welch held that a Johnson claim may be retroactively applicable on
collateral review, Greer held the right recognized in Johnson did not extend to the right
Mr. Mulay asserts here. He therefore is not entitled to § 2255 relief.
III. CONCLUSION
The decision of the district court denying Mr. Mulay’s motion under 28 U.S.C.
§ 2255 is affirmed.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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