                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         October 19, 2018
                                  TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 17-7081
                                                 (D.C. Nos. 6:16-CV-00287-RAW
 v.                                                and 6:14-CR-00043-RAW-7)
                                                           (E.D. Okla.)
 JACKIE DALE BRUMLEY,

                Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.



       Jackie Dale Brumley seeks a certificate of appealability (“COA”) to

challenge the district court’s order denying his motion under 28 U.S.C.

§ 2255. Exercising jurisdiction under 28 U.S.C. § 1291, and for the reasons

that follow, we deny Mr. Brumley’s request for a COA and dismiss this

matter.




       *
               This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I

      Mr. Brumley pleaded guilty to entering into a drug conspiracy in

violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and

841(b)(1)(C). Importantly, his plea agreement contained a waiver of his right

to appeal and a waiver of his “right to collaterally attack the conviction and

sentence pursuant to 28 U.S.C. § 2255, except for claims of ineffective

assistance of counsel which challenge the validity of the guilty plea or this

waiver.” Aplt.’s App., Vol. II, at 51.

      In preparation for his sentencing, a probation officer prepared a

Presentence Report (“PSR”) that calculated Mr. Brumley’s advisory U.S.

Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) range and

designated him as a Career Offender. 1 Despite this designation, the Career

Offender Guideline had no effect on Mr. Brumley’s Guidelines range. While

the Career Offender Guideline provides for elevated offense levels, it was not

applied to Mr. Brumley because his existing offense level under the other

provisions of the Guidelines was already higher than the level specified by the

Career Offender Guideline. See U.S.S.G. § 4B1.1(b) (“[I]f the offense level

for a career offender from the table in this subsection is greater than the

offense level otherwise applicable, the offense level from the table in this



      1
            The probation office used the 2014 Guidelines Manual.

                                         2
subsection shall apply.” (emphasis added)). And although the Career

Offender Guideline mandates that “[a] career offender’s criminal history

category . . . shall be Category VI,” id., Mr. Brumley’s criminal history score

already resulted in a criminal history Category VI, the highest category.

        Relying on these guidelines, the district court sentenced Mr. Brumley to

168 months’ imprisonment. Judgment was entered on July 7, 2015. Mr.

Brumley did not file a direct appeal.

        On June 27, 2016, Mr. Brumley filed his § 2255 motion, relying on

Johnson v. United States, --- U.S. ----, 135 S. Ct. 2551 (2015). The

government responded by asking the district court to stay proceedings pending

the Supreme Court’s decision in Beckles v. United States, --- U.S. ----, 137 S.

Ct. 886 (2017), which the district court then did. After Beckles was decided,

the district court lifted the stay, and the parties finished briefing the motion.

The district court then, on October 3, 2017, held that the plea agreement’s

collateral appeal waiver was enforceable and thus dismissed Mr. Brumley’s

§ 2255 motion. Mr. Brumley filed a timely notice of appeal on November 30,

2017.

                                        II

        “The issuance of a COA is a jurisdictional prerequisite to an appeal

from the denial of an issue raised in a § 2255 motion.” United States v.

Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010); see also 28 U.S.C.

                                         3
§ 2253(c)(1)(B). A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When, as here, “the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying constitutional

claim, a COA should issue (and an appeal of the district court’s order may be

taken) if the prisoner shows, at least, [1] that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right, and [2] that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 478 (2000); see Coppage v. McKune, 534 F.3d 1279,

1281 (10th Cir. 2008) (“If the application was denied on procedural grounds,

the applicant faces a double hurdle.”).

                                        III

      We consider a threshold jurisdictional issue and then discuss why

reasonable jurists would not find debatable either the merits or the procedural

infirmity of Mr. Brumley’s petition.

                                          A

      In its briefing before the district court, the government questioned

whether the court had jurisdiction to award Mr. Brumley relief under 28

U.S.C. § 2255 and instead argued Mr. Brumley’s claim would more properly



                                          4
be framed as a Bivens action. 2 Because “we are obliged to independently

inquire into the propriety of our jurisdiction,” United States v. Battles, 745

F.3d 436, 447 (10th Cir. 2014), we briefly consider this argument.

      This issue arises because Mr. Brumley’s desired relief is somewhat

unique. Although the Career Offender Guideline was not applied to Mr.

Brumley for purposes of sentencing, he argues that this designation still has

consequences for him. In particular, Mr. Brumley argues that he “has been

assessed by the Bureau of Prisons a Documented History of Violence point,

which has unconstitutionally caused him to be classified as a medium security

[prisoner] instead of [a] low security [prisoner] for a longer period of time,

which has caused him to be more restricted in confinement, not allowed him

to be placed in a low security FCI as timely as he should have been, restricted

his privileges and caused hardship on family visitation.” Aplt.’s App., Vol. I,

at 20 (Am. Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to 28

U.S.C. § 2255, filed June 29, 2016). He therefore wants the Career Offender

designation removed from his PSR.

      While “a prisoner who challenges the fact or duration of his

confinement and seeks immediate release or a shortened period of

confinement[] must do so through an application for habeas corpus,” this



      2
             See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

                                        5
circuit has held that “a prisoner who challenges the conditions of his

confinement must do so through a civil rights action.” Palma-Salazar v.

Davis, 677 F.3d 1031, 1035 (10th Cir. 2012); see Standifer v. Ledezma, 653

F.3d 1276, 1280 (10th Cir. 2011) (“It is well-settled law that prisoners who

wish to challenge only the conditions of their confinement, as opposed to its

fact or duration, must do so through civil rights lawsuits filed pursuant to 42

U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971)—not through federal habeas proceedings.”); accord Pinson v.

Berkebile, 486 F. App’x 745, 747 (10th Cir. 2012) (unpublished); Stanko v.

Quay, 356 F. App’x 208, 210 (10th Cir. 2009) (unpublished). And, if Mr.

Brumley should have brought this claim under Bivens, the case should be

dismissed without prejudice because the district court did not have

jurisdiction to consider Mr. Brumley’s arguments under § 2255. See

Palma-Salazar, 677 F.3d at 1033 (“Exercising jurisdiction under 28 U.S.C.

§ 1291 we therefore remand to the district court to vacate its judgment and

dismiss, without prejudice, the entire petition for lack of jurisdiction.”).

      Nevertheless, we conclude that the district court did have jurisdiction to

consider Mr. Brumley’s motion because, unlike the cases just cited, Mr.

Brumley’s motion is tied directly to his sentence. We have previously

allowed a prisoner to seek a very similar remedy under § 2255. In United

States v. Gattas, 862 F.2d 1432 (10th Cir. 1988), “the district judge orally

                                        6
announced, in compliance with the first part of Rule 32(c)(3)(D), that he

would not rely on any of the disputed factual statements contained in the

[PSR], [but] he failed to make a written statement of such nonreliance and to

attach it to the [PSR], as required by the second sentence of Rule

32(c)(3)(D).” Id. at 1433. The petitioner filed a § 2255 motion in hopes of

correcting this mistake and his PSR. Id. at 1433–34. As here, we first faced

the question of “whether we have jurisdiction to remedy the violation.” Id. at

1433. We reasoned that we did. Id. at 1434.

      First, we remarked that “the [PSR] may have an important influence on

a defendant’s classification in a prison, his ability to obtain furloughs, the

treatment programs provided to him, and his parole determinations.” Id.

“Thus,” we continued, “transmission of an accurate [PSR], which includes a

written record of the sentencing judge’s resolution of contested matters in the

report, is vitally important to the post-sentencing lives of criminal

defendants.” Id. In light of the importance of “protecting defendants against

post-sentencing prejudice because of errors in the [PSR],” id., we concluded

“that Section 2255 is a proper vehicle for remedying the violation of Rule

32(c)(3)(D) in this case,” id. at 1433. See United States v. Talk, 158 F.3d

1064, 1070 (10th Cir. 1998) (characterizing Gattas as holding that “an error in

compiling ‘the central document in the correctional process’ is actionable

under § 2255” (quoting Gattas, 862 F.2d at 1434)), abrogated on other

                                        7
grounds as recognized in United States v. Harms, 371 F.3d 1208, 1210 (10th

Cir. 2004); see also United States v. Warner, 23 F.3d 287, 290–91 (10th Cir.

1994) (declining to consider motion to correct PSR under Fed. R. Crim. P. 32,

but acknowledging “it might have been possible for the district court to

construe the motion as a § 2255 motion”). 3

       Following Gattas, we conclude that we have jurisdiction. As in Gattas,


       3
                Mixed approaches can be found among and within our sister circuits.
Compare United States v. Yakle, 463 F.3d 810, 811 (8th Cir. 2006) (“a violation of the
rule” requiring district court to attach findings of fact to a PSR “is cognizable in a petition
for relief under 28 U.S.C. § 2255”), and United States v. Angiulo, 57 F.3d 38, 42 n.6 (1st
Cir. 1995) (stating “[i]t is often assumed that inaccuracies in a PSI Report may form the
basis for a petition under 28 U.S.C. § 2255,” but “tak[ing] no view of the appropriateness
vel non of any such potential remedies”), and United States v. Mosquera, 845 F.2d 1122,
1123 n.1 (1st Cir. 1988) (“Section 2255 would appear to be the most appropriate basis for
[petitioner to challenge the accuracy of information in the PSR] and hence we construe
the motion as a § 2255 petition.”), and United States v. Fischer, 821 F.2d 557, 558–59
(11th Cir. 1987) (noting that while Fed. R. Crim. P. 35 did not provide jurisdiction for
petitioner’s motion, “28 U.S.C. § 2255 may provide jurisdiction for a collateral attack on”
petitioner’s PSR, and remanding “to the district court to dismiss for lack of jurisdiction,
or permit [petitioner] to amend to assert a § 2255”), with United States v. Ballard, 512 F.
App’x 152, 153 (3d Cir. 2013) (unpublished) (“We agree with the District Court that
Ballard does not seek relief available under § 2255 or Rule 60(b) because he expressly
stated that he is not challenging his conviction or sentence and instead requested only the
amendment of his PSR.”), and United States v. Mittelsteadt, 790 F.2d 39, 40 (7th Cir.
1986) (affirming dismissal of habeas petition for lack of jurisdiction because “[t]he real
purpose of the appellant’s motion appears to be to modify the terms of his
imprisonment”), and United States v. Leath, 711 F.2d 119, 120 (8th Cir. 1983) (“We do
not agree with the district court’s characterization of appellant’s motion as a § 2255
motion. Appellant did not challenge the validity of his sentence; he only wanted to
remove certain allegedly erroneous information from his presentence report . . . . Because
‘this is a challenge to the execution of the sentence rather than to the sentence itself, we
do not have jurisdiction under § 2255.’” (quoting United States v. Fraser, 688 F.2d 56, 58
(8th Cir. 1982)). While these cases demonstrate varying approaches, we are bound by our
prior opinion in Gattas.

                                              8
Mr. Brumley is fundamentally seeking to correct an alleged error in his PSR.

While potential correction of that alleged error could have an effect on prison

conditions—indeed, Mr. Brumley hopes that it will—like Gattas, the district

court had jurisdiction to consider the § 2255 motion because Mr. Brumley was

effectively seeking to correct an alleged error in his sentence. This situation

is rightly distinguished from our above cases where a prisoner challenged

prison conditions that were unrelated to an alleged sentencing error. The

connection to Mr. Brumley’s sentence is the key; with it, we conclude we are

able to proceed.

                                        B

      This brings us to the first reason why the district court correctly denied

Mr. Brumley’s motion: his plea agreement contained a valid waiver of

collateral rights. We established a formula for evaluating the validity of

appeal waivers in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en

banc). We ask “(1) whether the disputed appeal falls within the scope of the

waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” Id. at 1325. Although Hahn

involved a direct appeal, we have applied the same test to § 2255 proceedings.

See, e.g., United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

      Applying Hahn, these § 2255 proceedings clearly fall within the scope

                                        9
of the waiver, which included a waiver of “the right to collaterally attack the

conviction and sentence pursuant to 28 U.S.C. § 2255, except for claims of

ineffective assistance of counsel which challenge the validity of the guilty

plea or this waiver.” Aplt.’s App., Vol. II, at 51. Mr. Brumley makes no

arguments regarding ineffective assistance of counsel. Second, Mr. Brumley

has not argued that this waiver was unknowing and involuntary. Instead, Mr.

Brumley only argues that enforcement of the waiver would entail a

miscarriage of justice. Aplt.’s Opening Br. at 9.

      “For purposes of the enforcement of an appeal waiver, ‘[a] miscarriage

of justice occurs [1] where the district court relied on an impermissible factor

such as race, [2] where ineffective assistance of counsel in connection with

the negotiation of the waiver renders the waiver invalid, [3] where the

sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

unlawful.’” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011)

(alterations in original) (quoting United States v. Shockey, 538 F.3d 1355,

1357 (10th Cir. 2008)). This list is exclusive. Id. Mr. Brumley does not

argue that enforcement of the waiver would implicate any of the first three

categories; he only argues that it is “otherwise unlawful.” Aplt.’s Opening

Br. at 12.

      For the waiver to be “otherwise unlawful,” “the error [must] seriously

affect[ ] the fairness, integrity or public reputation of judicial proceedings.”

                                        10
Hahn, 359 F.3d at 1327 (alterations in original) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)). But Mr. Brumley does not provide any

independent argument that this waiver was unlawful; he only provides an

argument that his sentence was unlawful. See Aplt.’s Opening Br. at 13–15.

And we have made clear that this sort of an argument is insufficient to satisfy

the fourth prong: “Our inquiry is not whether the sentence is unlawful, but

whether the waiver itself is unlawful because of some procedural error or

because no waiver is possible.” United States v. Sandoval, 477 F.3d 1204,

1208 (10th Cir. 2007); see Polly, 630 F.3d at 1002 (“Because Polly does not

challenge the lawfulness of the waiver itself, enforcing the waiver as to his

claim that the district court improperly applied the obstruction of justice

sentence enhancement does not result in a miscarriage of justice.”). Because

Mr. Brumley has failed to demonstrate that the waiver was unlawful, we hold

that jurists of reason would not debate whether the district court was correct

in its procedural ruling that the waiver was valid and that the waiver covered

Mr. Brumley’s § 2255 motion.

                                        C

      Lest there be any doubt that Mr. Brumley could not secure review under

any circumstances, we also note that reasonable jurists would not find it

debatable that the petition does not state a valid claim of the denial of a

constitutional right. On the merits, Mr. Brumley had argued that he was

                                        11
erroneously classified as a Career Offender by the Guidelines because the

Guidelines’ definition of crime of violence was unconstitutionally vague in

light of Johnson. Mr. Brumley’s argument had some support in our caselaw

when it was filed, see United States v. Madrid, 805 F.3d 1204, 1206 (10th Cir.

2015), but that support was fatally undercut during the course of this

litigation by Beckles. See United States v. Snyder, 852 F.3d 972, 973 (10th

Cir. 2017) (acknowledging Beckles “partially abrogated” Madrid).

      Instead of dropping this argument, Mr. Brumley seeks to repackage it.

Even though he concedes that he was not erroneously classified as a Career

Offender—because, under Beckles, the Guidelines are not amenable to

vagueness challenges—he still argues that this court should “remove the

classification of career offender in exercising its discretion” under the 18

U.S.C. § 3553(a) factors. Aplt.’s Opening Br. at 15. He provides no further

elaboration of this argument, discussion of how the § 3553(a) factors apply in

this case, authority for the proposition that a court has discretion under the

§ 3553(a) factors to alter a correct classification made under the Guidelines,

or, perhaps most fatally, any explanation of how the district court’s failure to

exercise any “discretion” that it ostensibly had here could have resulted in

“the denial of a constitutional right.” Slack, 529 U.S. at 478. After Beckles,

Mr. Brumley’s substantive argument is wholly without merit: Mr. Brumley has

demonstrated neither that he was incorrectly designated as a Career Offender

                                       12
nor the relevance of the § 3553(a) factors to that determination. Jurists of

reason would not find it debatable whether the petition states a valid claim of

the denial of a constitutional right.

                                        IV

      Finally, Mr. Brumley moved the court to file his supplemental appendix

under seal. “[T]he party seeking to seal records ‘must articulate a real and

substantial interest that justifies depriving the public of access to the records

that inform our decision-making process.’” JetAway Aviation, LLC v. Bd. of

Cty. Comm’rs of Cty. of Montrose, Colo., 754 F.3d 824, 826 (10th Cir. 2014)

(quoting Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d

1124, 1135–36 (10th Cir. 2011)). At the court’s direction, Mr. Brumley filed

a supplement to his motion in which he explicated the interests warranting

sealing. For the reasons articulated in that supplement, we conclude that Mr.

Brumley has met his burden to justify sealing. Therefore, we order his

supplemental appendix to be sealed and also order the supplement to his

sealing motion to remain under seal.




                                        13
                                   V

     For the foregoing reasons, we DENY a COA and DISMISS this matter.

We GRANT Mr. Brumley’s motion to seal his supplemental appendix.



                                       ENTERED FOR THE COURT


                                       Jerome A. Holmes
                                       Circuit Judge




                                  14
