Nos. 5:15-CV-00820-D and 5:12-CR-00151-D-1) (W.D. Okla.)
GORSUCH, O'BRIEN, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
Terrence L. O'Brien, United States Circuit Judge
Freeburg, a federal prisoner proceeding pro se,
wants to appeal from the denial of his 28 U.S.C. § 2255
motion. His request for a certificate of appealability (COA)
was denied by the district judge, prompting him to reapply in
this Court. Because he has not "made a substantial
showing of the denial of a constitutional right, "
see 28 U.S.C. § 2253(c)(2), we too deny a COA.
pled guilty to being a felon in possession of a firearm. 18
U.S.C. § 922(g). His criminal history included (1)
possession of a controlled drug with intent to distribute in
violation of Okla. Stat. Ann. tit. 63, § 2-401(A)(1);
(2) feloniously pointing a firearm in violation of Okla.
Stat. Ann. tit. 21, § 1289.16; and (3) aggravated
assault in violation of Ohio Rev. Code § 2903.12(A)(1).
The probation officer determined the drug conviction was a
"serious drug offense" and the latter two
convictions constituted "violent felon[ies]" under
the Armed Career Criminal Act (ACCA) and therefore Freeburg
was subject to the ACCA's enhanced penalties. 18 U.S.C.
§ 924(e); see also USSG §4B1.4. Initially,
Freeburg objected to the enhancement, arguing his Ohio
aggravated assault conviction was not an ACCA predicate
offense. He withdrew that objection prior to sentencing. The
judge then sentenced him to 15 years imprisonment, the
mandatory minimum sentence required by the ACCA. Id.
We dismissed Freeburg's untimely appeal on February 13,
2014. See United States v. Freeburg, No. 14-6021
(10th Cir. Feb. 13, 2014). He did not seek certiorari review.
Thus, his conviction became final on May 14, 2014.
See Sup. Ct. Rule 13(1); Clay v. United
States, 537 U.S. 522, 532 (2003) ("[F]or federal
criminal defendants who do not file a petition for certiorari
with [the Supreme Court] on direct review, § 2255's
one-year limitation period starts to run when the time for
seeking such review expires.").
year later, in July 2015, Freeburg filed his § 2255
petition, arguing his convictions for feloniously pointing a
firearm and aggravated assault no longer qualified as
"violent felon[ies]" in light of Johnson v.
United States, --- U.S. ---, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court decided the ACCA's
definition of "violent felony" to include any
felony that "otherwise involves conduct that presents a
serious potential risk of physical injury to another"
(commonly referred to as the residual clause) is
unconstitutionally vague. Id. at 2557, 2563. In so
holding, however, it left untouched the remainder of the
ACCA's definition of "violent felony" including
a felony that "has as an element the use, attempted use,
or threatened use of physical force against the person of
another"-the physical force prong. Id. at 2563;
18 U.S.C. § 924(e)(2)(B)(i). The district judge denied
Freeburg's § 2255 motion. He recognized the motion
was filed more than one year after Freeburg's conviction
became final, see 28 U.S.C. § 2255(f)(1), but
concluded the motion was nevertheless timely because it was
filed within one year of Johnson. See 28
U.S.C. § 2255(f)(3) (one year statute of limitations
runs from latest 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"). However, he decided Johnson did not
affect Freeburg's sentence because his convictions for
feloniously pointing a firearm and aggravated assault were
"violent felon[ies]" under the physical force prong
of the ACCA. See United States v. Hood, 774 F.3d
638, 645-46 (10th Cir. 2014) (a conviction for violating
Okla. Stat. Ann. tit. 21, § 1289.16 (feloniously
pointing a firearm) constitutes a "violent felony"
under the ACCA's physical force prong where the offense
involves the defendant pointing a firearm for the purpose of
threatening and intimidating the victim); United States
v. Anderson, 695 F.3d 390, 400-01 (6th Cir. 2012) (a
conviction for violating Ohio Rev. Code § 2903.12(A)
(aggravated assault) is categorically a "violent
felony" under the physical force prong of the ACCA).
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). To
make such a showing, an applicant must demonstrate "that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further." Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quotations
argues his Ohio aggravated assault conviction under Ohio Rev.
Code § 2903.12(A)(1) fails to satisfy the physical force
prong of the ACCA. According to him, the statute's
language does not require the use of physical force, only
that he knowingly caused serious physical harm to another. He
relies on our decision in United States v.
Perez-Vargas, where we held third degree assault under
Colo. Rev. Stat. § 18-3-204(1)(a) did not constitute a
"violent felony" under USSG §2L1.2, comment.
(n.1(B)(iii)) because the statutory language does not
necessarily require the use or threatened use of physical
force and we found no Colorado state court cases definitely
holding it did. 414 F.3d 1282, 1285-86 (10th Cir. 2005).
Freeburg waived this claim by intentionally
withdrawing it at sentencing.United States v. Teague,
443 F.3d 1310, 1314 (10th Cir. 2006) ("[W]aiver is the
intentional relinquishment or abandonment of a known
right"; "a party that has waived a right
is not entitled to appellate relief.") (quotation marks
omitted); see also United States v. Zubio-Torres,
550 F.3d 1202, 1205 (10th Cir. 2008) ("We typically find
waiver in cases where a party has invited the error that it
now seeks to challenge, or where a party attempts to reassert
an argument that it previously raised and abandoned
below."). However, even if he had not waived the
argument, it is untimely.
§ 2255(f)(1), Freeburg had one year from the date his
conviction became final in May 2014 to file his § 2255
petition. He did not file his petition until July 2015. Both
the government and the district judge recognized the
untimeliness of his petition. Nevertheless, the judge decided
his Johnson claim was timely under 28 U.S.C. §
2255(f)(3). That statute extends the limitation period if the
petition is based on a right newly recognized by the Supreme
Court and made retroactive to cases on collateral appeal.
While his Johnson claim satisfies this requirement,
his Perez-Vargas claim does not and he has withdrawn
his Johnson claim. See infra n.2. By doing
so, he has eliminated the basis for consideration of his
otherwise untimely petition. Simply put, § 2255(f)(3)
allowed additional time for his Johnson claim; it
does not extend the time so as to permit him to resurrect a
claim he abandoned in the district court. He has
a COA and DISMISS this matter. We GRANT Freeburg's Motion
to Amend his COA Application and Opening Brief and to
Substitute his Amended COA Application and Opening Brief.
Freeburg's request to proceed on appeal in forma
pauperis or ifp is DENIED AS MOOT. The relevant
statute, 28 U.S.C. § 1915(a), does not permit litigants
to avoid payment of fees, only prepayment of fees. Since we
have reached the merits of this matter, prepayment of fees is