United States District Court, D. Colorado
OPINION AND ORDER DISMISSING § 2255
S. Krieger Chief United States District Judge.
MATTER comes before the Court pursuant to Mr.
Crooks' Motion to Vacate (#1939, as
amended # 1940) pursuant to 28 U.S.C. §
2255, the Government's response (#
1945), and Mr. Crooks' reply #
1946), and Mr. Crooks' Motion to Supplement
(# 1957), which the Court grants.
2002, Mr. Crooks was convicted of Conspiracy to Possess With
Intent to Distribute Cocaine Base in violation of 26 U.S.C.
§ 841. He was subsequently sentenced to 360 months
imprisonment, in part due to two prior state court
convictions which activated the provisions of Section
4B1.2(a) of the then-mandatory Sentencing Guidelines. That
Guideline provision defines “crime of violence”
in language (the “residual clause”) similar to
that of the Armed Career Criminal Act (“ACCA”),
which the Supreme Court held was unconstitutionally vague in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Crooks appealed his sentence, but the 10th Circuit
affirmed it. U.S. v. Crooks, 73 Fed.Appx. 353
(10th Cir. 2003). Mr. Crooks did not seek
certiorari, and thus, his conviction became final in or about
November 2003. Mr. Crooks then filed a petition pursuant to
28 U.S.C. § 2255 in December 2004, but it was quickly
denied by the District Court. Mr. Crooks appealed that
denial, but again, the 10th Circuit affirmed.
U.S. v. Crooks, 143 Fed.Appx. 125 (10th
wake of Johnson, Mr. Crooks sought permission from
the 10th Circuit to file a second or successive
§ 2255 petition, and on May 18, 2016, the
10th Circuit granted that permission. Mr. Crooks
then filed the instant Motion to Vacate (#
1939) pursuant to 28 U.S.C. §2255, arguing that
the reasoning of Johnson compels the conclusion that
the provision of Section 4B1.2(a) of the Sentencing
Guidelines that is similar provision of the Armed Career
Criminal Act addressed in Johnson is also
unconstitutionally vague, requiring Mr. Crooks to be
outcome of Mr. Crooks' petition is dictated by U.S.
v. Greer, 881 F.3d 1241 (10thCir. 2018). In
Greer, the defendant, like Mr. Crooks, was sentenced
under the residual clause of Guideline § 4B1.2(a), at a
time when it was mandatory for sentencing courts to apply the
Guidelines. In the wake of Johnson, the defendant in
Greer moved to vacate his sentence under §2255,
arguing that the logic of Johnson applied equally to
the residual clause of § 4B1.2. In response, the
Government argued that the defendant's petition was
untimely. The 10th Circuit agreed with the
Government, finding that, pursuant to 28 U.S.C. §
2255(f)(1), a habeas petition had to be brought
within one year of the defendant's conviction becoming
final - for both the defendant in Greer and Mr.
Crooks, that time had long since passed before
Johnson was decided. Defendants are also granted a
one-year period to file § 2255 petitions if the Supreme
Court “newly recognize[s]” a right that applies
to them. 28 U.S.C. § 2255(f)(3). But the 10th
Circuit held that Johnson, a case interpreting the
ACCA, did not recognize any equivalent right for defendants
sentenced under § 4B1.2 of the Guidelines:
Mr. Greer has not asserted a right recognized by the Supreme
Court because Mr. Greer has not asserted that his “ACCA
sentence” is no longer valid under Johnson.
Indeed, he could make no such claim because Mr. Greer was not
sentenced under the ACCA. The right that Mr. Greer
“asserts” is a right not to be sentenced under
the residual clause of § 4B1.2(a)(2) of the mandatory
Guidelines. The Supreme Court has recognized no such right.
And nothing in Johnson speaks to the issue.
881 F.3d at 1247. In short, Greer stands for the
proposition that the one-year window allowing otherwise
untimely habeas petitions based on newly-recognized
rights opens only upon the Supreme Court expressly
recognizing the right at issue in the particular statutory
(or Guideline) context that applies to the defendant; a
Circuit Court's recognition of that particular right or
the Supreme Court's recognition of a similar right in an
analogous context does not suffice.
plainly requires the dismissal of Mr. Crooks' petition as
untimely. It is undisputed that the Supreme Court has yet to
address whether the application of § 4B1.2 during the
mandatory-Guidelines regime was constitutional or
See Beckles v. U.S., 137 S.Ct. 886, 903 n. 4 (2017)
(Ginsburg, J. concurring) (leaving open “the question
whether defendants sentenced to terms of imprisonment before
our decision in [Booker] . . .may mount vagueness
attacks on their sentences”); Greer, 881 F.3d
at 1247 (“The Supreme Court has recognized no such
right”). Until it does so, Mr. Crooks is unable to file
a timely petition under § 2255(f)(3).
the Court DISMISSES Mr. Crooks' petition
(# 1939) as untimely. Because the rule in
Greer is unambiguous in its application here, the
Court also denies a Certificate of Appealability.
 The Court acknowledges that there are
many defendants (and others) affected by statutory schemes
that are similar to the ACCA, each of whom has a colorable
claim that their own sentence or punishment is
unconstitutional under the reasoning of Johnson.
See e.g. U.S. v. Autobee, 701 Fed.Appx. 710
(10th Cir. 2017) (defendants sentenced under 18
U.S.C. § 924(c); Golicov v. Lynch, 837 F.3d
1065 (10th Cir. 2016) (aliens affected by 8 U.S.C.
§ 1101(a)(43)(F)). As explained above, for defendants
with older convictions under these statute, the rule in
Greer prevents these defendants themselves from
filing timely petitions that might work their way up to the
Supreme Court. These defendants must wait until some
other defendant, recently-sentenced under the ...