Nos. 2:16-CV-00589-DAK & 2:02-CR-00502-DN-1, (D. Utah)
HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
issue in this appeal involves the timeliness of Mr. Surman
Miller's motion to vacate his sentence. The district
court dismissed the motion on the ground that the limitations
period had expired. Mr. Miller 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
Miller committed the offense in 2002; 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)(2) (2002).(This provision is commonly known as the
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).
Miller contends that given the mandatory nature of the
guidelines in 2002, their residual clause should be subject
to a vagueness challenge. For this contention, Mr. Miller
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. Miller needs a
certificate of appealability. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). This certificate is available only
if Mr. Miller 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. Miller 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. Miller
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. Miller 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.
Miller's motion to vacate was untimely.
Miller's sentence became final in 2004. United States
v. Miller, 114 Fed.Appx. 375, 376, 379 (2004)
(unpublished). He then had one year to move to vacate his
sentence; but he waited roughly eleven years, missing the
limitations period by about ten years. Because Mr.
Miller'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. Miller's claim fails under
Greer and Pullen. But I believe that Mr.
Miller has satisfied the low ...