                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         December 24, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1241
                                                 (D.C. Nos. 1:16-CV-01504-REB and
 JOSHUA HALL,                                          1:05-CR-00425-REB-2)
                                                              (D. Colo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before PHILLIPS, BALDOCK, and MORITZ, Circuit Judges.
                   _________________________________

      Joshua Hall appeals the district court’s order denying his 28 U.S.C. § 2255

motion. Because we find this case controlled by our recent opinion in United States v.

Bowen, 936 F.3d 1091 (10th Cir. 2019), we reverse.

                                     Background

      In 2006, a jury found Hall guilty of witness retaliation, in violation of 18

U.S.C. § 1513(b). The trial court considered witness retaliation a crime of violence

under 18 U.S.C. § 924(c), and the jury found that Hall brandished a firearm during its

commission. Thus, the jury also found Hall guilty of violating § 924(c)(1)(A)(ii),



      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
which provides a mandatory minimum sentence of seven years for brandishing a

firearm in furtherance of a crime of violence. The jury convicted Hall’s codefendant,

Aaron Bowen, of the same crimes. See Bowen, 936 F.3d at 1095.

      In 2016, Hall and Bowen filed § 2255 motions, arguing that they were

convicted under § 924(c)’s residual clause—as opposed to its elements clause—and

that this residual clause is unconstitutionally vague. Bowen, 936 F.3d at 1096. The

district court separately denied both motions. As to Bowen, it found that his motion

was untimely. The district court reached the same conclusion as to Hall’s motion, and

further found that Hall’s motion was procedurally barred and, in any event, failed on

the merits. Hall and Bowen appealed. Id.

      Bowen’s appeal reached us first, and because their appeals presented the same

timeliness issue, Hall moved to abate his appeal pending the resolution of Bowen’s.

Specifically, Hall argued that “Bowen’s appeal presents the question of whether a

challenge to § 924(c)’s residual clause is timely under 28 U.S.C. § 2255(f)(3).

[Hall’s] appeal will present the same question.” Mot. to Abate Appeal 2. Hall noted

that “[t]he [g]overnment does not object to the relief requested in this [m]otion,” and

the government did not file a response. Id. We granted Hall’s motion to abate

because Bowen “raise[ed] an issue substantially similar to an issue the appellant

intends to raise in this appeal.” Order 1, June 22, 2018. We also directed Hall to file

regular status reports, which he did.

      While Bowen and this case were both pending, the Supreme Court issued

United States v. Davis, 139 S. Ct. 2319 (2019). In Davis, the Court held that

                                           2
§ 924(c)’s residual clause is unconstitutionally vague. Id. at 2336. Hall then filed his

Eighth Status Report, arguing that his case should remain abated until this court

decided Bowen because although Davis was not dispositive, Bowen would be. We

asked the government to respond, and it “agree[d] that this case should remain abated

pending this [c]ourt’s issuance of a decision in Bowen.” Resp. to Eighth Status

Report 1.

      In September 2019, we issued our decision in Bowen. We first held

that because Davis announced a “substantive rule that has retroactive effect in cases

on collateral review,” Bowen could not be guilty under § 924(c)’s residual clause.

Second, we held that a § 1513(b) conviction does not satisfy § 924(c)’s elements

clause, so Bowen could not be guilty under that clause either. 1 Bowen, 936 F.3d at

1101, 1109. Thus, we found Bowen actually innocent of violating § 924(c). And

because the parties agreed that Bowen would be entitled to relief if he was actually

innocent, we granted him habeas relief. Id. at 1108.

      The same day we issued Bowen, Hall requested that we lift the abatement of

this case. He then moved for summary disposition, which the government opposed. In

response, we lifted the abatement, took Hall’s motion for summary disposition under

advisement, and ordered briefing on the merits. 2


      1
         We also specifically found that Bowen was convicted under § 924(c)’s
residual clause, not its elements clause. Bowen, 936 F.3d at 1108–09. But for now,
after Bowen, a § 1513(b) conviction cannot serve as the foundation for a valid
§ 924(c) conviction under either clause. We therefore need not reach this issue here.
       2
         Because our ruling is based on the parties’ merits briefs, we deny Hall’s
motion for summary disposition.
                                            3
                                        Analysis

      Under our reasoning in Bowen, because a § 1513(b) conviction cannot serve as

the foundation for a valid § 924(c) conviction, Hall is actually innocent of violating

§ 924(c)(1). And on appeal, the government states, similar to its agreement in Bowen,

that it “would waive” its untimeliness and procedural-default arguments if Hall is

actually innocent. 3 Aplee. Br. 11. Yet the government argues for the first time in this

appeal that Bowen does not control because § 1513(b) is divisible, such that Hall is

not entitled to habeas relief. 4 The government concedes that it never made this


      3
          As we did in Bowen, we note here “that neither our circuit nor the Supreme
Court has definitively resolved whether a claim of actual innocence based on a new
statutory interpretation—rather than such a claim based on new evidence—can
overcome § 2255’s statute of limitations.” Bowen, 936 F.3d at 1097 n.2. But “we rely
on the parties to frame the issues for decision.” Greenlaw v. United States, 554 U.S.
237, 243 (2008). Thus, we hold the government to its affirmative waiver of these
procedural defenses.
        4
          Briefly explained, divisibility affects whether Hall is actually innocent of
violating § 924(c) or if, instead, his conviction satisfies § 924(c)’s elements clause. If
§ 1513(b) is not divisible, as we assumed without deciding in Bowen, then Hall is
actually innocent under Bowen. See Bowen, 936 F.3d at 1102 n.5. That is because if
the statute is not divisible, we apply the pure categorical approach and ask whether “‘the
minimum “force”’ required for a witness retaliation conviction . . . qualifies as violent
force.” Bowen, 936 F.3d at 1103 (quoting United States v. Harris, 844 F.3d 1260, 1264
(10th Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018)). And the minimum force required
for witness retaliation is threatening or causing property damage, which does not qualify
as violent force. See Bowen, 936 F.3d at 1103–04. Thus, if the statute is not divisible,
then § 1513(b) does not qualify as a crime of violence under either the elements clause or
the unconstitutional residual clause of § 924(c), rendering Hall actually innocent. But if
the statute is divisible, we apply the modified categorical approach and “peer around the
statute of conviction and examine certain record documents” to determine whether the
defendant was actually convicted of a crime requiring violent force. United States v.
Titties, 852 F.3d 1257, 1266 (10th Cir. 2017). Here, those record documents show that
Hall was convicted of witness retaliation by threatening and causing bodily injury,
which does qualify as violent force. See Bowen, 936 F.3d at 1103. Thus, if the statute
is divisible, then Hall would be guilty of violating § 924(c)’s elements clause
                                            4
argument in Bowen. It further concedes that it failed to make this argument in the

district court in this case. Indeed, the government did not argue for divisibility at any

point before it filed its opposition to Hall’s motion for summary disposition.

Nevertheless, it urges us to reach and accept its divisibility argument as an alternative

basis for affirming the district court’s order denying habeas relief. See United States

v. Watson, 766 F.3d 1219, 1235 (10th Cir. 2014) (“[W]e have discretion . . . to affirm

on any ground adequately supported by the record . . . .”). But if we decline to

consider this late-blooming divisibility argument, then this case is controlled by

Bowen, which compels us to find Hall actually innocent.

      Hall advances two reasons why we should decline to reach the government’s

new argument. 5 He first contends that we cannot consider the divisibility argument

because the government waived any such argument. See United States v. Teague, 443

F.3d 1310, 1315 (10th Cir. 2006) (declining to consider waived argument). Second,

Hall argues that even if the government merely forfeited its divisibility argument by

failing to raise it below, we should decline to exercise our discretion to affirm on this

alternative ground. See Watson, 766 F.3d at 1235, 1236 n.12. We conclude that

although it came close, the government did not waive this argument. But it did forfeit




(rendering the unconstitutionality of the residual clause irrelevant). He therefore
would not be actually innocent of violating § 924(c).
       5
         Hall also advances a third reason, contending that the government should be
judicially estopped from arguing for divisibility because it argued in a separate case
that § 1513(b) is not divisible. But in his reply brief, Hall concedes that judicial
estoppel does not apply here, and we thus do not consider it.
                                            5
it, and we ultimately decline to exercise our discretion to reach its forfeited argument

and therefore decline to affirm on an alternative ground.

I.    Waiver

      To demonstrate waiver, Hall must show that the government “knowingly and

intelligently relinquished” its divisibility argument. Wood v. Milyard, 566 U.S. 463,

470 n.4 (2012). In attempting to do so, Hall points to (1) the government’s response

to his Eighth Status Report, (2) our refusal to consider one of the government’s

arguments in Bowen, (3) the government’s silence while this case was abated, and

(4) unfair prejudice. But none of these arguments support a finding of waiver.

      Hall first argues that the government waived its divisibility argument in its

response to his Eighth Status Report. Recall that in this report, Hall argued that

despite the Supreme Court’s decision in Davis—which held that § 924(c)’s residual

clause is unconstitutionally vague—abatement remained appropriate because Davis

did “not definitively resolve this case.” Eighth Status Report 2; see also Davis, 139 S.

Ct. at 2236. More specifically, he noted that because the government argued Hall and

Bowen’s § 924(c) convictions were valid under the elements clause, Davis’s

conclusion that its residual clause is unconstitutional was not dispositive. Hall

continued: “But this Court’s decision in Bowen (assuming it is precedential) should

definitively resolve [Hall’s] case and render this appeal appropriate for summary

disposition.” Eighth Status Report 2. We asked the government to respond and

“stat[e] its position regarding the continued abatement of this appeal.” Min. Order,

June 27, 2019. In its response, the government wrote that “[f]or the reasons stated in

                                           6
[Hall’s] status report, the United States agrees that this case should remain abated

pending this [c]ourt’s issuance of a decision in Bowen.” Resp. to Eighth Status

Report 1.

      Hall argues that by using this language, the government effectively agreed that

Bowen would control the result in this case and thereby waived any argument it did

not raise in Bowen. But the government maintains that when it agreed with continued

abatement “[f]or the reasons stated in [Hall’s] status report,” it was not agreeing to

find Bowen dispositive in this case. Id. Instead, the government asserts, the “reasons”

it referred to in its response were the reasons that Hall provided in his status report

supporting continued abatement after Davis. Id. That is, the government contends

that it merely agreed continued abatement was appropriate because (1) Davis did not

address whether § 1513(b) satisfied § 924(c)’s elements clause and (2) the

government argued here (and in Bowen) that it does.

      Although it is a close call, we do not read the government’s response as an

“intentional relinquishment or abandonment of” the ability to raise any argument here

that it did not raise in Bowen. United States v. Tingey, 716 F.3d 1295, 1301 (10th Cir.

2013) (quoting Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1077

(10th Cir. 2009)). In his status report, Hall did state that Bowen would be dispositive.

And the government’s response agreed with the “reasons” in Hall’s status report.

Nevertheless, the government did not expressly agree that Bowen would control the

result in this case. Resp. to Eighth Status Report 1. Thus, we do not conclude that the

government’s omission of the divisibility argument in its response amounted to an

                                            7
“intentional relinquishment or abandonment of” that argument. Tingey, 716 F.3d at

1301 (quoting Creative Consumer Concepts, 563 F.3d at 1077).

      Second, Hall argues that Bowen requires us to find waiver because there, we

declined to consider an argument in analogous circumstances. But Bowen is not

analogous on this point. There, the government represented that if the Supreme Court

found § 924(c)’s residual clause unconstitutional, “Bowen would be able to satisfy

§ 2255’s statute of limitations” because he would be “actually innocent.” Bowen, 936

F.3d at 1097 n.2 (quoting Aplee. 28(j) Letter, Aug. 27, 2018). The government then

attempted to raise a new timeliness argument unrelated to actual innocence. Id. The

court declined to consider this new argument and “proceede[d] according to the

parties’ prior agreement concerning actual innocence.” Id. This case lacks any similar

prior agreement: as just discussed, the government never expressly agreed with Hall

that it would consider Bowen dispositive. Thus, Bowen does not support finding

waiver here.

      Third, Hall contends that the government waived its divisibility argument

because its general silence during abatement was strategic. Indeed, the government

admits on appeal that it expected Bowen to control here, presumably in its favor. But

in arguing for inferred waiver, Hall relies on cases where a party had an obligation to

speak but did not. See, e.g., United States v. Hubbard, 638 F.3d 866, 870 (8th Cir.

2011) (finding defendant “waived his right to testify by remaining silent after his trial

counsel rested without calling him as a witness”); Holmes v. Elgin, Joliet & E. Ry.

Co., 18 F.3d 1393, 1398 (7th Cir. 1994) (finding waiver when party “had several

                                           8
opportunities to object to the remarks it found inappropriate but . . . chose not to

object until the jury returned an adverse verdict”). Here, the government agreed that

the case should be abated, and it did not have an obligation to explain the reasons it

believed abatement was proper until this court requested a response to Hall’s Eighth

Status Report. And, as noted above, the government did not expressly waive its

divisibility argument in this response. We therefore decline to infer waiver from the

government’s silence during abatement.

      Finally, Hall asserts that he would be unfairly prejudiced in the absence of a

waiver finding. Specifically, he contends that he moved for abatement only because

“he understood that his case was a re-run of Bowen.” Aplt. Br. 23. But Hall’s

understanding that Bowen would control did not create an intentional relinquishment

of a contrary argument on the government’s part. In short, we do not find that this or

any of Hall’s other arguments demonstrate that the government intentionally

abandoned any argument that would render Bowen nondispositive. Thus, the

government did not waive its divisibility argument.

II.   Forfeiture

      Although the government did not waive its divisibility argument, it did forfeit

this argument by failing to raise it below. See United States v. Zubia-Torres, 550

F.3d 1202, 1205 (10th Cir. 2008) (explaining that forfeiture occurs when party does

not raise argument before district court). Indeed, the government concedes forfeiture.

But it points out that we can affirm the district court “on any ground adequately



                                            9
supported by the record.” Watson, 766 F.3d at 1235. And it asks us to exercise our

discretion to do so here, and to thereby reach and accept its new argument.

       We consider three factors when deciding whether to affirm on an alternative

ground: “whether the ground was fully briefed and argued here and below, whether

the parties have had a fair opportunity to develop the factual record, and whether, in

light of . . . [the] uncontested facts, our decision would involve only questions of

law.” Id. at 1236 n.12 (quoting Harvey v. United States, 685 F.3d 939, 950 n.5 (10th

Cir. 2012)). Particularly relevant here, the first factor considers whether the party

“fully briefed and argued” the issue below. Id. In other words, forfeiture—and our

accompanying discretion to overlook it—is relevant when deciding whether to

exercise our discretion to affirm on alternative grounds. 6 See Exxon Shipping Co. v.

Baker, 554 U.S. 471, 487 (2008) (declining to “stat[e] a general principle to contain

appellate courts’ discretion” to consider arguments that parties fail to raise below);

Ryder v. United States, 515 U.S. 177, 185 n.4 (1995) (reversing court below and

“declin[ing] to reach” “alternative grounds for affirmance which the [g]overnment

did not raise below”); Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1256 (10th Cir. 2011)

(“Although this court may affirm on any ground apparent in the record, affirming on

legal grounds not considered by the trial court is disfavored.” ).

       As the government correctly notes, it meets the second and third factors of our

affirm-on-other-grounds standard: the question is purely legal and no further factual


       6
        In other procedural postures, our discretion to overlook forfeiture is cabined
by plain-error analysis. See, e.g., Teague, 443 F.3d at 1314.
                                             10
development is necessary to decide the issue. Watson, 766 F.3d at 1236 n.12. But it

does not meet the first factor, as it did not raise this argument below. The government

urges us to overlook this forfeiture and nevertheless affirm on alternative grounds

because society has a strong interest in the finality of convictions.

      It is true that the habeas framework reflects finality interests. See Prost v.

Anderson, 636 F.3d 578, 582–83 (10th Cir. 2011). But the cases the government cites

to support this proposition involve the threshold question of whether a court should

allow petitioners who have already collaterally challenged their sentence once to do

so again. See id. at 579–80 (affirming denial of § 2241 petition because petitioner

already collaterally challenged conviction with § 2255 motion and did not show that

§ 2255 collateral-review process was “inadequate or ineffective” (quoting § 2255(e));

Daniels v. United States, 254 F.3d 1180, 1184 (10th Cir. 2001) (denying petitioner’s

successive § 2255 motion). The government does not explain how the finality interest

underlying the statutory limit on successive petitions relates to our analysis here,

where there is no doubt that this is Hall’s first § 2255 motion.

      Moreover, the government’s finality argument has no limiting principle. It

suggests that we should always consider an argument to maintain a valid conviction

and thus should always excuse the government’s forfeiture in habeas cases. This,

however, is not the rule. The principles of waiver and forfeiture apply to the

government in habeas cases, and embracing the government’s argument here would

depart substantially from these principles. See United States v. Miller, 868 F.3d 1182,

1185–86, 1186 n.2 (finding that government forfeited argument in habeas case and

                                           11
applying appropriate analysis to determine if court should reach argument); cf. Wood,

566 U.S. at 472 (“[A] federal court does not have carte blanche to depart from the

principle of party presentation basic to our adversary system.” (italicization

omitted)). Thus, we reject the government’s argument that principles of finality

militate in favor of considering its divisibility argument.

       Moreover, the government’s conduct during abatement weighs heavily against

considering this argument. Although the government’s conduct did not amount to an

intentional relinquishment or abandonment, both its response to Hall’s Eighth Status

Report and general silence during abatement strongly suggested to Hall, to the

district court, and to this court that the government would find Bowen dispositive. 7

Thus, we are further disinclined to excuse the government’s forfeiture.

       In sum, we are not persuaded by the government’s arguments in favor of

overlooking its forfeiture in order to affirm on an alternative ground. See Rimbert,

647 F.3d at 1256 (“[A]ffirming on legal grounds not considered by the trial court is

disfavored.”). 8

                                      Conclusion


       7
         Indeed, the district court released Hall on bond while this appeal was
pending, reasoning that Hall’s claim “is essentially identical to the claim resolved in
favor of” Bowen and concluding that “Hall has shown a clear case on the merits of
his post-conviction motion.” Order Granting Mot. for Release on Bond & Order
Setting Conditions of Release, 4.
       8
         We note that the divisibility of § 1513(b) remains an open question. In
Bowen, we “assum[ed] without deciding” that it is not divisible, noting that the
district court assumed as much and “neither party rais[ed] the issue” on appeal. 936
F.3d at 1102 n.5. Thus, the government is free to make this divisibility argument in a
future case.
                                           12
      We decline to consider the government’s forfeited divisibility argument. Thus,

under Bowen, Hall is not guilty of violating § 924(c)’s elements clause. See Bowen

936 F.3d at 1101. And § 924(c)’s residual clause is unconstitutionally vague. Davis,

139 S. Ct. at 2236. Accordingly, Hall is actually innocent of violating § 924(c). And

because the government stated it would waive any procedural defenses if Hall is

actually innocent, we do not consider his motion either untimely or procedurally

barred, and he is entitled to habeas relief. We therefore reverse the district court’s

order and remand with instructions to vacate Hall’s § 924(c) conviction. 9


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      9
         The government asks us to remand for resentencing in the event that we
vacate Hall’s conviction. We decline to do so, particularly in light of the district
court’s recent order granting Hall’s motion for release on bond while this appeal was
pending. Indeed, at the time of his release, Hall had fully served his sentences for
witness retaliation and had served six of the seven years of his § 924(c) conviction.
                                           13
