Utah) (D.C. Nos. 2:16-CV-00662-JNP & 2:93-CR-00281-JNP-1)
HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
issue in this appeal involves the timeliness of Mr. Alfred
Ray Cesspooch's motion to vacate his sentence. The
district court dismissed the motion on the ground that the
limitations period had expired. Mr. Cesspooch wants to
appeal; to do so, he requests a certificate of appealability
and initial consideration en banc. We deny the request for a
certificate, dismiss the appeal, and deny the request for
initial consideration en banc as moot because absent the
grant of a certificate we do not have jurisdiction over the
merits of this appeal.
Cesspooch committed the offense in 1993; at that time, the
United States Sentencing Guidelines were considered
mandatory. See, e.g., Burns v. United
States, 501 U.S. 129, 133 (1991), abrogated on
other grounds, Dillon v. United States, 560
U.S. 817, 820-21 (2010). These guidelines treated an
offense as a crime of violence if the offense created "a
serious potential risk of physical injury to another."
USSG § 4B1.2(a)(1)(ii) (1993). (This provision is commonly
known as the "residual clause.")
guidelines are now considered advisory rather than mandatory.
See United States v. Booker, 543 U.S. 220, 237-39
(2005). After they became advisory, the Supreme Court
rejected a vagueness challenge to the guidelines'
residual clause. Beckles v. United States, 137 S.Ct.
886, 890, 892, 894-95 (2017). But the Supreme Court has not
squarely addressed a vagueness challenge to the guidelines
when they were considered mandatory. See id. at 903
n.4 (Sotomayor, J., concurring).
Cesspooch contends that given the mandatory nature of the
guidelines in 1993, their residual clause should be subject
to a vagueness challenge. For this contention, Mr. Cesspooch
likens the guidelines' residual clause to an identical
statutory clause in the Armed Career Criminal Act (18 U.S.C.
§ 924(e)(2)(B)(ii)), which was struck down in
Johnson v. United States as unconstitutionally
vague. 135 S.Ct. 2551, 2563 (2015).
raise this contention on appeal, Mr. Cesspooch needs a
certificate of appealability. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). This certificate is available only
if Mr. Cesspooch shows that reasonable jurists could debate
the correctness of the district court's ruling. Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). We conclude
that Mr. Cesspooch has not made this showing.
motion to vacate the sentence is ordinarily due one year from
when the judgment became final. 28 U.S.C. § 2255(f)(1).
An exception exists when the defendant relies on a new rule
of constitutional law that has been deemed retroactive to
cases on collateral review. 28 U.S.C. 2255(f)(3). Mr.
Cesspooch invokes this exception here based on
Johnson. Though Johnson did not address the
sentencing guidelines, our later opinion in United States
v. Greer did, holding that Johnson had not set
out a new constitutional rule applicable to the guidelines
when they were considered mandatory. 881 F.3d 1241, 1247-49
(10th Cir.), cert denied, 139 S.Ct. 374 (2018).
defendant argues that Greer was abrogated by
Sessions v. Dimaya. In Dimaya, the Supreme
Court applied Johnson to the definition of a
"crime of violence" in 18 U.S.C. § 16(b).
Sessions v. Dimaya, 138 S.Ct. 1204, 1213-16 (2018).
But after the Supreme Court decided Sessions v.
Dimaya, we reiterated in United States v.
Pullen that Johnson had not created a new rule
of constitutional law applicable to the mandatory guidelines.
United States v. Pullen, 913 F.3d 1270, 1284 n.17
(10th Cir. 2019), petition for cert. filed (U.S.
July 17, 2019) (No. 19-5219). So Dimaya does not
allow Mr. Cesspooch to invoke § 2255(f)(3) based on
our decisions in Greer and Pullen, we start
the one-year period of limitations from the date on which the
conviction became final, not from the date on which
Johnson was decided. Applying this limitations
period, any reasonable jurist would conclude that Mr.
Cesspooch's motion to vacate was untimely.
Cesspooch's sentence became final in 1998. United
States v. Cesspooch, 145 F.3d 1346 (1998) (unpublished).
He then had one year to move to vacate his sentence; but he
waited nearly seventeen years, missing the limitations period
by about sixteen years. Because Mr. Cesspooch's motion
was indisputably untimely, we (1) decline to issue a
certificate of appealability, (2) dismiss the appeal, and (3)
deny the request for initial consideration en banc as moot
because absent the grant of a certificate we do not have
jurisdiction over the merits of this appeal.
Bacharach, J., dissenting.
with the majority that Mr. Cesspooch's claim fails under
Greer and Pullen. But I believe that Mr.
Cesspooch has satisfied the low ...