United States v. Elliott ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 18, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8001
(D.C. Nos. 1:15-CR-00042-SWS-1
JOEL S. ELLIOTT, & 1:20-CV-00101-SWS)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, MORITZ, and CARSON, Circuit Judges.
_________________________________
Defendant Joel S. Elliott appeals the district court’s order denying him bail
pending adjudication of his 28 U.S.C. § 2255 motion. The government has moved to
dismiss the appeal as moot. We grant the motion and dismiss this appeal.
In October 2015, a federal jury convicted Elliott of, among other things, using
a “destructive device” in connection with a federal crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A) and (B)(ii). He appealed unsuccessfully to this court, and
likewise unsuccessfully sought § 2255 relief.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that
18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. See id. at 2323–24, 2336.
Believing that Davis’s reasoning undermines his conviction, Elliott petitioned this
court for permission to file a second or successive § 2255 motion, which we granted.
Returning to the district court, Elliott moved for bail pending consideration of
his § 2255 motion. The district court denied that motion in an order dated January 7,
2021. Six days later (January 13), the district court denied the § 2255 motion on the
merits.
Apparently not having received the district court’s January 13 order, Elliott
prepared and mailed a handwritten notice of appeal dated January 18, challenging
only the January 7 bail order. The district court docketed the notice of appeal on
January 27.
Considering this timeline, the appeal was moot from the outset. By the date
Elliott purports to have mailed his notice of appeal challenging the bail decision, the
district court had already denied relief on the merits. Accordingly, this court cannot
grant (and could never have granted) the only relief Elliott requests—bail pending
consideration of his § 2255 motion. We therefore grant the government’s motion and
dismiss the appeal as moot. Cf. Murphy v. Hunt, 455 U.S. 478, 481–82 (1982) (per
curiam) (holding that defendant’s claim to pretrial bail became moot once he was
convicted). For the same reasons, we deny as moot Elliott’s “Motion to Show
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Cause” regarding purported non-delivery of his mail and Elliott’s motion for
extension of time to file an opening merits brief.
Entered for the Court
Per Curiam
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