APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. Nos. 5:14-CV-04092-SAC; 5:01-CR-40033-SAC-1).
For United States of America, Plaintiff - Appellee: James A. Brown, Jared S. Maag, Ph. D., Anthony W. Mattivi, Office of the United States Attorney, District of Kansas, Topeka, KS; Carrie N. Capwell, Office of the United States Attorney, District of Kansas, Kansas City, KS.
For Joseph v. Mulay, Defendant - Appellant: Melody Brannon, Office of the Federal Public Defender, District of Kansas, Topeka, KS; Daniel T. Hansmeier, Kirk C. Redmond, Office of the Federal Public Defender, District of Kansas, Kansas City, KS.
Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.
Paul J. Kelly, Jr., Circuit Judge
Defendant-Appellant Joseph Mulay appeals from the district court's denial of a joint motion by the parties to vacate his sentence, 28 U.S.C. § 2255. 1 R. 41-62; see also United States v. Wetzel-Sanders, No. 04-40156-SAC, 2014 WL 5502407, at *1 (D. Kan. Oct. 30, 2014) (discussing Mr. Mulay's motion). The district court denied the motion, but granted a certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(B). The district court did not specify a constitutional issue in granting a COA. We remand to the district court to consider the issue and specify a constitutional issue.
In 2001, Mr. Mulay pled to three counts of drug and gun crimes. The presentence report (PSR) calculated his sentence with reference to the career offender provision (in part) on the basis of a 1995 state conviction for criminal threat for which Mr. Mulay received a 9-month suspended sentence. In 2002, the district court departed from the career offender range, and sentenced him (under the then-mandatory guidelines) to 180 months' custody, followed by a required consecutive 60-month term for possessing a firearm in furtherance of a drug trafficking crime. There is no question tat Mr. Mulay's 240-month sentence was below the statutory maximums of life (Count 7) and five years (Count 8) on the two drug counts plus the consecutive 60-month term on the gun count. 1 R. 11; 2 R. 70. On appeal, Mr. Mulay challenged whether his conduct pertaining to the criminal threat conviction qualified as a crime of violence. We affirmed. United States v. Mulay, 77 Fed.Appx. 455 (10th Cir. 2003).
On September 18, 2014, the government and Mr. Mulay filed a joint § 2255 motion to vacate the sentence on the basis of United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014). 1 R. 16-22. They argued that after Brooks one of the underlying convictions for career offender status (a conviction for criminal threat) would not qualify as a crime of violence under 28 U.S.C. § 994(h)(2)(A) and U.S.S.G. § 4B1.2(a) because it was not punishable by more than one year of imprisonment. 1 R. 20. They pointed out that had the career offender enhancement not applied, Mr. Mulay would have been subject to a guideline range of 168-210 months rather than 262-327 months (under either formulation an additional 60-month sentence also was required). Id. at 17-18. The district court was not persuaded that Brooks applied, a decision that both parties contend is wrong. Aplt. Br. at 7-8; Aplee. Br. at 10-11.
The joint motion stated that the government waived any procedural hurdles that might apply to § 2255 relief, so we have no occasion to consider the issue of time bar, § 2255(f). 1 R. 21 n.13. The parties reminded the district court that it would be an abuse of discretion to consider a procedural bar waived by the government, citing Wood v. Milyard, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012). On appeal, the government has second thoughts. It now argues that Mr. Mulay's claim is not cognizable in a § 2255 action because it involves non-constitutional sentencing error and urges us to follow United States v. Trinkle, 509 Fed.Appx. 700 (10th Cir. 2013), an unpublished case with similar facts. In Trinkle, a panel of this court determined that a similar challenge (applying the career offender provision to a criminal threat conviction) could not be the basis for a constitutional claim as required for a COA. Id. at 702. Having raised the issue of a non-compliant COA, the government argues that Mr. Mulay cannot demonstrate a fundamental defect resulting in a complete miscarriage of justice that would allow this case to proceed. Aplee. Br. at 13-14.
The district court granted a COA in this matter on the basis that the sentencing issue in this case was a fluid area of Tenth Circuit law and was worthy of greater consideration. 1 R. at 62. The district court's order, let alone its grant of a COA, does not mention due process. The grant of a COA is necessary to appeal and it is jurisdictional. 28 U.S.C.§ 2253(c)(1); Gonzalez v. Thaler, 132 S.Ct. 641, 649, 181 L.Ed.2d 619 (2012). The statute conditions the grant of a COA on " a substantial showing of the denial of a constitutional right" and specifying the issues, 28 U.S.C. § 2253(c)(2) & (3), but these requirements are not jurisdictional. Gonzalez, 132 S.Ct. at 649. That said, we remain conscious of the requirements of § 2253(c)(2) & (3), even if they are not jurisdictional. Gonzalez, 132 S.Ct. at 651 (court of appeals must address a defective COA); Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). Though a § 2255 motion may be based upon a variety of grounds, an appeal of the denial of such a motion requires an underlying constitutional claim. United States v. Shipp, 589 F.3d 1084, 1087 (10th Cir. 2009); United States v. Christensen, 456 F.3d 1205, 1206 (10th Cir. 2006); United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999). This is true even if the district court denies a § 2255 motion on procedural grounds. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, we may not entertain appeals from the denial of § 2255 motions that lack an underlying constitutional claim.
The parties identified a constitutional issue in the motion: a due process challenge on the basis of being sentenced on materially inaccurate information. 1 R. 20-21. The parties explained that the 240-month sentence Mr. Mulay received was actually within the correct guidelines range after Brooks, rather than a downward departure as the trial court envisioned. 1 R. 21-22. On appeal, Mr. Mulay makes a different argument--that his sentence violated due process because it was based upon the inaccurate fact that he was a career offender. Aplt. Br. at 5, 10; Aplt. Reply Br. at 2, 3. Under either due process theory, Mr. Mulay is arguing that his sentence is incorrect based upon Brooks, a decision interpreting the guidelines. Our precedent is clear that a claim of error concerning statutory interpretation is insufficient to ...