Nos. 1:16-CV-00081-SWS and 2:06-CR-00007-WFD-1) (D. Wyo.)
LUCERO, O'BRIEN, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Terrence L. O'Brien, United States Circuit Judge.
2006, Samuel Jay Buck pled guilty to being a felon in
possession of a firearm. 18 U.S.C. § 922(g)(1). His
criminal history included three 1991 convictions for first
degree arson in violation of Ore. Rev. Stat. § 164.325.
Without objection, the district judge concluded these
convictions were "violent felon[ies]" under the
Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B), and sentenced him to 15 years imprisonment, the
mandatory minimum sentence required by the
ACCA. See 18 U.S.C. § 924(e)(1).
At the time of sentencing, the ACCA defined "violent
felony" as "any crime punishable by imprisonment
for a term exceeding one year" that (1) "has as an
element the use, attempted use, or threatened use of physical
force against the person of another" (the elements
clause); (2) "is burglary, arson, or extortion, [or]
involves use of explosives" (the enumerated-offense
clause); or (3) "otherwise involves conduct that
presents a serious potential risk of physical injury to
another" (the residual clause). Id. §
924(e)(2)(B). Buck did not file a direct appeal.
26, 2015, the United States Supreme Court decided Johnson
v. United States, --- U.S. ---, 135 S.Ct. 2551 (2015).
In Johnson, the Supreme Court decided the residual
clause of the ACCA is unconstitutionally vague. Id.
at 2557, 2563. It left untouched the remainder of the
ACCA's definition of "violent felony" including
the enumerated-offense clause. Id. at 2563. On April
18, 2016, it made Johnson's holding retroactive
to cases on collateral review. Welch v. United
States, --- U.S. ---, 136 S.Ct. 1257, 1265 (2016).
on Johnson, Buck filed a 28 U.S.C. § 2255
motion (his first) on April 21, 2016. He argued that after
Johnson, his arson convictions could only qualify as
violent felonies under the ACCA if they satisfied either the
elements clause or the enumerated-offense clause; they met
neither. Relevant here, he claimed they did not constitute
violent felonies under the enumerated-offense clause because
Oregon's arson statute is broader than generic arson. Had
he not received the ACCA enhancement, he says, the guideline
range would have been 24-30 months.
district judge concluded Buck's arson convictions were
considered violent felonies under the ACCA's
enumerated-offense clause, not the residual clause
invalidated by Johnson. Because Johnson was
inapplicable, Buck's § 2255 motion was untimely as
it was not filed within one year of his judgment of
conviction becoming final. See 28 U.S.C. §
2255(f)(1). The judge also rejected Buck's claim that his
prior arson convictions could only have been considered
violent felonies under the ACCA's residual clause (rather
than the enumerated-offense clause) because the Oregon arson
statute is broader than the requirements for generic arson.
He decided Oregon's arson statute falls within and is not
broader than generic arson.
did not request a certificate of appealability (COA) from the
district court and the judge did not address a COA. But, as
Buck acknowledges, a COA 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) (quotation marks
says his § 2255 motion is timely because it was filed
within one-year of Johnson. He relies on 28 U.S.C.
§ 2255(f)(3), which allows a § 2255 motion to be
filed within one year 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
be timely under § 2255(f)(3), a § 2255 motion need
only 'invoke' the newly recognized right, regardless
of whether or not the facts of record ultimately support the
movant's claim." United States v. Snyder,
871 F.3d 1122, 1126 (10th Cir. 2017). Buck's § 2255
motion "invoked" Johnson by alleging his
ACCA sentence is no longer valid after Johnson.
Id. Because he filed his § 2255 motion within
one year of Johnson, it is timely under §
2255(f)(3). However, "[w]hether or not [he] can
ultimately prevail on his motion, " is another matter,
to which we now turn. Id.
claims his sentence was the result of the judge concluding
his previous arson convictions constituted violent felonies
under the unconstitutional residual clause. The judge found
Mr. Buck . . . was not sentenced pursuant to the ACCA's
residual clause. The ACCA's definition of "violent
felony" also includes certain enumerated
offenses-burglary, arson, extortion, or any crime
involving the use of explosives. 18 U.S.C. §
924(e)(2)(B)(ii). It is clear from the record of
Defendant's criminal proceedings that his three first
degree arson convictions were the predicate violent felony
crimes used for the sentence enhancement under §
924(e)(1). The record makes absolutely no mention of the
residual clause, nor does the record contain any discussion
or analysis to suggest the sentencing court ever even
considered whether Defendant's prior convictions would
fall under the residual clause.
(R. Vol. 1 at 64.)
claims the judge erred in deciding he was not sentenced
pursuant to the residual clause. According to him, it is
impossible to tell from the record whether his prior arson
convictions fell under the elements clause, the
enumerated-offense clause, or the residual clause. Because
the residual clause potentially influenced his sentence and