United States v. Snyder , 871 F.3d 1122 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
September 21, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-8117
MICHAEL LEE SNYDER,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. Nos. 2:16-CV-00058-ABJ and 2:04-CR-00118-ABJ-1)
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 (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
2
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
(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
3
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 F. App’x. 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
4
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
5
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 (2011) (quoting Williams v. Taylor, 529 U.S. 420, 431 (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
1
In her concurrence, Judge McHugh concludes, citing United States v.
Winston, 850 F.3d 677, 682 (4th Cir. 2017), that she “would allow Mr. Snyder to
rely on § 2255(f)(3) and . . . would [thus] conclude that the petition is timely.”
Concurrence at 5 (emphasis added). Winston, however, addressed a slightly
different question: whether the movant, who sought to file a second § 2255
motion, could “show that his claim ‘relie[d] on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.’” 850 F.3d at 682 (quoting 28 U.S.C. § 2244(b)(2)(A)).
Whether or not the phrase “the right asserted,” as used in § 2255(f)(3), effectively
carries the same meaning as “relies on,” as used in § 2244(b)(2)(A), is a question
we need not address.
6
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 (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 (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
2
Thus, we do not address his argument that he is actually innocent of the
ACCA. See Dretke v. Haley, 541 U.S. 386, 393–94 (2004) (“[A] federal court
(continued...)
7
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 (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
available to counsel, so a defendant has cause for failing to raise the issue. Id. at
17.
(...continued)
faced with allegations of actual innocence, whether of the sentence or of the
crime charged, must first address all nondefaulted claims for comparable relief
and other grounds for cause to excuse the procedural default.”).
3
The Supreme Court has indicated that the standard for cause and
prejudice operates consistently in motions under both § 2254 and § 2255. See
Bousley, 523 U.S. at 622 (addressing a federal procedural default in a motion
under § 2255 and quoting Reed v. Ross, 468 U.S. 1, 16 (1984), which addressed a
state procedural default under § 2254); Frady, 456 U.S. at 167 (establishing the
cause and prejudice standard for procedural default in a motion under § 2255, and
citing Davis v. United States, 411 U.S. 233 (1973) (addressing a motion under
§ 2255), Francis v. Henderson, 425 U.S. 536 (1976) (same), and Wainwright v.
Sykes, 433 U.S. 72 (1977) (addressing a motion under § 2254)); Reed, 468 U.S. at
8–9 (addressing a motion under § 2254, but citing the standard from Frady, 456
U.S. 152, which addressed a motion under § 2255); Frady. 456 U.S. at 166
(noting that, although a § 2255 motion does not implicate concerns of comity for
state court judgments that exist in a § 2254 motion, there is “no basis for
affording federal prisoners a preferred status when they seek postconviction
relief”). Because the Court cites these cases interchangeably, we do as well.
8
And that is precisely the situation here. As the District of Columbia Circuit
has noted, “it is fair to say that no one—the government, the judge, or the
[defendant]—could reasonably have anticipated Johnson.” United States v.
Redrick, 841 F.3d 478, 840 (D.C. Cir. 2016). In fact, between the time we
affirmed Snyder’s sentence on direct appeal and the time Johnson was issued, the
Supreme Court twice rejected constitutional challenges to the ACCA’s residual
clause. See Sykes v. United States, 564 U.S. 1 (2011); James v. United States,
550 U.S. 192 (2007). We therefore conclude that the Johnson claim was not
reasonably available to Snyder at the time of his direct appeal, and that this is
sufficient to establish cause.
Prejudice
Snyder must also show “‘actual prejudice’ resulting from the errors of
which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). The
Supreme Court has “refrained from giving ‘precise content’ to the term
‘prejudice,’ expressly leaving to future cases further elaboration of the
significance of that term,” id. at 168 (quoting Wainwright v. Sykes, 433 U.S. 72,
91 (1977)), but its language indicates that Snyder must show that the error of
which he complains is an “error of constitutional dimensions” that “worked to his
actual and substantial disadvantage.” Id. at 170.
Snyder was sentenced under 18 U.S.C. § 924(e)(1), which carries a
mandatory minimum sentence of fifteen years’ imprisonment. He claims that this
9
statute does not apply to him and that his ACCA sentence enhancement is invalid
after Johnson. If he is correct, he should instead have been sentenced under 18
U.S.C. § 924(a)(2), which carries a statutory maximum sentence of only ten
years’ imprisonment. Thus, there is not just a possibility, but a certainty, that the
alleged error influenced the outcome of Snyder’s sentencing, because his sentence
of 172 months and 10 days would exceed the statutory maximum allowed for his
crimes. A sentence that is not authorized by law is certainly an “actual and
substantial disadvantage” of “constitutional dimensions.” See Frady, 456 U.S. at
170. Thus, Snyder has shown actual prejudice arising from the asserted error.
Because he has shown both cause and prejudice, his claim overcomes procedural
default.
The Merits of Snyder’s Claim
Finally, we turn to the merits of Snyder’s claim. Snyder alleges in his
§ 2255 motion that “[u]nder Johnson, [his] prior burglary convictions cannot
sustain the ACCA sentencing enhancement.” ROA, Vol. 1 at 42. This allegation
necessarily implies that the district court, in sentencing Snyder under the ACCA,
concluded that his prior burglary convictions fell within the scope of the ACCA’s
residual clause. In other words, it necessarily implies that Snyder’s ACCA
sentence “was imposed under an invalid—indeed, unconstitutional—legal theory,
and that [Snyder] was, therefore, sentenced in violation of the Constitution.”
United States v. Geozos, No. 17-35018, slip op. at 10, 2017 WL 3712155 at *4
10
(9th Cir. Aug. 29, 2017).
The district court, however, found that “[t]he actual facts of record in this
matter offer 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, Vol. 1 at 133. In other words, the district court found, as a
matter of historical fact, that it did not apply the ACCA’s residual clause in
sentencing Snyder under the ACCA. In support, the district court began by noting
that “[b]urglary is an enumerated offense under the ACCA, and [Snyder’s]
criminal history included three of them, two of which were characterized by the
PSR as residential burglaries.” Id. The district court in turn noted that the PSR
“only counted these two residential burglary convictions for ACCA purposes” and
“did not count [Snyder’s] prior automobile burglary conviction under the very
same statute, clearly recognizing, under Taylor v. United States[, 495 U.S. 575
(1990)], vehicle burglaries do not count for ACCA purposes.” Id. (emphasis in
original). The district court also noted that Snyder “made absolutely no objection
to the PSR characterization of his residential burglary convictions as violent
felonies under the ACCA, other than his Apprendi claim.” Id. at 134. Likewise,
the district court noted, Snyder “simply renewed his Apprendi claim” at the
sentencing hearing, “and argued nothing more.” Id. Lastly, the district court
noted that phrase “residual clause” was not mentioned at all in the PSR or at any
other time “throughout [Snyder’s] entire sentencing process.” Id. at 135.
11
We agree with the district court. “[A] court’s determination that a
defendant qualifies for an ACCA enhancement is a finding.” Geozos, slip op. at
9, 2017 WL 3712155 at *3 (citing Shepard v. United States, 544 U.S. 13, 25
(2005)). It is, however, a finding that “rests largely on legal conclusions—state
offense X is categorically a ‘violent felony,’ state offense Y is not, etc.” Id., slip
op. at 12, 2017 WL 3712155 at *4. “For that reason, it may be possible to
determine that a sentencing court did not rely on the residual clause—even when
the sentencing record alone is unclear—by looking to the relevant background
legal environment at the time of sentencing.” Id.
If, for instance, binding circuit precedent at the time of sentencing
was that crime Z qualified as a violent felony under the force clause,
then a court’s failure to invoke the force clause expressly at
sentencing, when there were three predicate convictions for crime Z,
would not render unclear the ground on which the court’s ACCA
determination rested. * * * By analogy, a claim does not ‘rely’ on
[Johnson] if it is possible to conclude, using both the record before
the sentencing court and the relevant background legal environment
at the time of sentencing, that the sentencing court’s ACCA
determination did not rest on the residual clause.
Id., slip op. at 12-13, 2017 WL 3712155 at *4. Thus, the relevant background
legal environment is, so to speak, a “snapshot” of what the controlling law was at
the time of sentencing and does not take into account post-sentencing decisions
that may have clarified or corrected pre-sentencing decisions.
In this case, Snyder’s sentencing proceeding occurred against the backdrop
of the Supreme Court’s decision in Taylor. In Taylor, the Supreme Court
12
construed the ACCA’s enumerated offenses clause and held
that a person has been convicted of a burglary for purposes of a
§ 924(e) enhancement if he is convicted of any crime, regardless of
its exact definition or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime.
495 U.S. at 599. The Court also held that “[t]his categorical approach . . . may
permit [a] sentencing court to go beyond the mere fact of conviction in a narrow
range of cases where a jury was actually required to find all the elements of
generic burglary.” Id. at 602. “For example,” the Court stated,
in a State whose burglary statutes include entry of an automobile as
well as a building, if the indictment or information and jury
instructions show that the defendant was charged only with a
burglary of a building, and that the jury necessarily had to find an
entry of a building to convict, then the Government should be
allowed to use the conviction for enhancement.
Id.
In light of Taylor, there would have been little dispute at the time of
Snyder’s sentencing that his two Wyoming burglary convictions involving
occupied structures fell within the scope of the ACCA’s enumerated crimes
clause. 4 To be sure, the Wyoming statute under which these convictions arose
4
Approximately four years after Snyder was sentenced, this court expressly
concluded that Wyoming state burglary convictions that involved occupied
structures constituted qualifying offenses under the ACCA’s enumerated crimes
clause. United States v. Gonzales, 558 F.3d 1193, 1196-98 (10th Cir. 2009).
Gonzales has since been abrogated by the Supreme Court’s decision in
Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016). In Mathis, the
(continued...)
13
includes entry of “occupied structure[s] or vehicle[s].” Wyo. Stat. § 6-3-301(a).
But it would have been permissible for the district court to examine the
underlying charging documents and/or jury instructions to determine if Snyder
was charged only with burglary of buildings. And the PSR in Snyder’s case
actually did just that, without any objection from Snyder.
Considering the record in Snyder’s case in light of this relevant background
legal environment, we are unable to disagree with the district court’s finding that
its ACCA determination rested on application of the enumerated crimes clause,
rather than the residual clause. As the district court noted, there is no mention
whatsoever of the residual clause in the PSR or any of the other district court
pleadings or transcripts. Moreover, given the relevant background legal
environment that existed at the time of Snyder’s sentencing, there would have
been no need for reliance on the residual clause.
Finally, it is telling that Snyder’s § 2255 pleadings focus primarily on the
4
(...continued)
Supreme Court held that in “determin[ing] whether a prior conviction is for
generic burglary (or other listed crime) courts apply . . . the categorical approach”
and must “focus solely on whether the elements of the crime of conviction
sufficiently match the elements of generic burglary, while ignoring the particular
facts of the case.” 136 S. Ct. at 2248. Thus, the Court held, “if the crime of
conviction covers any more conduct than the generic offense, then it is not an
ACCA ‘burglary’—even if the defendant’s actual conduct (i.e., the facts of the
crime) fits within the generic offense’s boundaries.” Id.
14
applicability of the enumerated crimes clause. Indeed, we agree with the
government that Snyder’s “contention [i]s not a true Johnson claim, but [i]s rather
a poorly disguised claim under Taylor[ v. United States, 495 U.S. 575 (1990)],
Shepard[ v. United States, 544 U.S. 13 (2005)], and their progeny” that his
convictions for Wyoming burglary do not qualify as predicate offenses under the
enumerated crimes clause. Aplee. Br. at 14.
For these reasons, we conclude that Snyder’s Johnson claim must fail
because the district court’s ACCA’s determination at the time of sentencing rested
on the enumerated crimes clause rather than the residual clause.
IV
The decision of the district court denying Snyder’s motion under 28 U.S.C.
§ 2255 is AFFIRMED.
15
16-8117, United States v. Snyder
McHUGH, Circuit Judge, concurring in result.
I concur with the majority opinion that Mr. Snyder cannot prevail on his motion to
vacate or correct his sentence. But I write separately because I depart from the majority’s
“Timeliness” analysis.
First, I agree with the majority that Mr. Snyder has “asserted” a claim based on the
Supreme Court’s recent decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct.
2551 (2015). Maj. Op. at 5–7. In my view, however, that assertion is not sufficient to
afford Mr. Snyder an additional year in which to bring his petition.
Section 2255(f)(3) provides that Mr. Snyder had one year from “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.” 28 U.S.C. § 2255(f)(3). This provision expressly requires more than
an “assertion” of a right by the petitioner. Instead, to be entitled to file within one year of
a Supreme Court decision: (1) the petitioner must assert the right; (2) the right asserted
must have been recognized in the Supreme Court decision; (3) that recognition by the
Supreme Court must be new; and (4) the newly recognized right must have been made
retroactively applicable to cases on collateral review by the Supreme Court. In my view,
the majority overlooks all but the first of these requirements in its interpretation of
§ 2255(f)(3). And by doing so, the majority interprets the statute inconsistently with
Congress’s intent to limit the number of collateral-review cases before the federal courts
and thereby encourage respect for the finality of convictions. See Case v. Hatch, 731 F.3d
1015, 1045 (10th Cir. 2013) (“Congress enacted AEDPA, not only to afford the
appropriate respect for the finality of state court proceedings, but also with the intent to
conserve judicial resources and to streamline the federal habeas process . . . .”).
By focusing on only part of the language of § 2255(f)(3), the majority ignores the
ways in which Congress cabined a petitioner’s ability to defeat these legislative goals. To
be sure, the majority provides a well-reasoned and persuasive analysis of the term
“asserts,” concluding that it requires merely that the petitioner “state positively” or
“invoke or enforce a legal right.” Maj. Op. at 6. But an assertion is only a part of what
must occur before an otherwise untimely petition can be filed under § 2255(f)(3).
The statute next requires that the right asserted be “recognized by the Supreme
Court.” 28 U.S.C. 2255(f)(3). The majority correctly states that we must give statutory
terms “their ordinary, contemporary, common meaning, absent an indication Congress
intended them to bear some different import.” Wall v. Kholi, 562 U.S. 545, 551 (2011)
(quoting Williams v. Taylor, 529 U.S. 420, 431 (2000)). Maj. Op. at 6. There is no
contrary indication here, so we apply the common meaning of the term “recognize” used
in § 2255(f)(3). To “recognize” means “to admit the fact, truth or validity of.” Recognize,
Webster’s Third New International Dictionary of the English Language Unabridged
(2002).
The only right the Supreme Court “admit[ted] the fact, truth, or validity of” in
Johnson, is the right not to be sentenced as an armed career criminal under the residual
clause of the Armed Career Criminal Act (“ACCA”). Thus, to the extent a petitioner
2
asserts any other right, I would hold that it is not a right “recognized” by Johnson. See
United States v. Kundo, No. 16-4128, 2017 WL 3084628, at *3 (10th Cir. July 20, 2017)
(unpublished) (holding that the petition was untimely despite the assertion of Johnson
because the petitioner had not been sentenced under the ACCA); United States v.
Contreras, __ F. App’x __, 2017 WL 1857236, at *2 (10th Cir. Mar. 8, 2017)
(unpublished) (holding that the petition was untimely despite the assertion of Johnson
because the petitioner’s sentence was imposed under enumerated-offenses clause of 18
U.S.C. § 3559(c) (three strikes law), rather than the residual clause of the ACCA). See
also Holt v. United States, 843 F.3d 720, 724 (7th Cir. 2016) (holding that although
petitioner’s burglary conviction was misclassified as a crime of violence, “the argument
being made was statutory rather than constitutional and did not rest on Johnson or any
other retroactive rule of constitutional law”). In Douglas v. United States, the Seventh
Circuit explained:
The invocation of § 2255 is problematic. Douglas treats . . . [Johnson] as
opening to collateral review all sentences under the Armed Career Criminal
Act. Yet the Court did not hold the Act invalid; [Johnson] concerns only a
part of § 924(e)(2)(B)(ii). The elements clause in § 924(e)(2)(B)(i) remains
in effect, as does the burglary clause in § 924(e)(2)(B)(ii). . . . The district
court concluded that Douglas’s prior convictions are violent felonies under
the elements clause of § 924(e)(2)(B)(i), so [Johnson], does not affect his
situation.
858 F.3d 1069, 1070 (7th Cir. 2017). Because the United States failed to object to the
defendant’s use of § 2255(f)(3), however, the Seventh Circuit gave effect to the United
States’ waiver. Id.
3
Thus, I do not agree that any petitioner who “asserts” a Johnson claim is then
entitled to challenge his career criminal status under any or all clauses of the Armed
Career Criminal Act, 18 U.S.C. § 924(e). Maj. Op. at 8–9. Instead, I would hold that the
court may reject a petition asserted under Johnson as untimely where the record reveals
that the petitioner is not asserting the right recognized in Johnson—the right not to be
sentenced as an armed career criminal under the residual clause of the ACCA. If the
petitioner is asserting any other right, including a right not to be sentenced under a
different clause of the ACCA, I would hold that § 2255(f)(3) is inapplicable and the
motion is untimely if not filed within one year of when the conviction became final.
Accordingly, I would not extend the Supreme Court’s decision in Johnson as far as
the majority opinion would. In my view, when the sentencing court identifies the
particular clause of the ACCA that justifies the enhanced sentence, the defendant must
make a timely challenge to that enhancement if he believes the sentencing court’s
assessment was in error. Under the plain language of § 2255(f)(3), a defendant who fails
to do so cannot use the Supreme Court’s recognition of the right not to receive an
enhanced sentence under a different clause of the ACCA as a vehicle to raise that
challenge years later.
Although I disagree with the application of the majority opinion’s analysis of
timeliness generally, I am in agreement as to the timeliness of Mr. Snyder’s petition. The
sentencing court in Mr. Snyder’s case did not indicate how he qualified as a career
criminal. Thus, he has asserted a right that may have been recognized by the Supreme
Court in Johnson. Under these circumstances, I would allow Mr. Snyder to rely on
4
§ 2255(f)(3) and I would conclude that the petition is timely. See United States v.
Winston, 850 F.3d 677, 682 (4th Cir. 2017) (“We therefore hold that when an inmate’s
sentence may have been predicated on application of the now-void residual clause and,
therefore, may be an unlawful sentence under the holding in Johnson II, the inmate has
shown that he ‘relies on’ a new rule of constitutional law within the meaning of 28
U.S.C. § 2244(b)(2)(A).”). See also In re Chance, 831 F.3d 1335, 1340–41 (11th Cir.
2016).
I am also in agreement with the majority’s analysis concerning Mr. Snyder’s
inability to prevail on the merits. Although the sentencing court did not identify the
specific basis for the ACCA enhancement, the record when read in light of the “relevant
background legal environment” leaves no doubt that Mr. Snyder’s ACCA enhancement
was based on the sentencing court’s application of the enumerated offenses clause. Maj.
Op. at 14. That clause remains in full force and effect after Johnson.
I therefore join in the majority’s conclusion that the decision of the district court
denying Mr. Snyder’s motion under 28 U.S.C. § 2255 should be affirmed. Maj. Op. at 14.
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