                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                       File Name: 12a0235p.06

                  UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                                                  -
 RICKY JONES,
                                                  -
                               Petitioner-Appellant,
                                                  -
                                                  -
                                                      No. 10-5105
          v.
                                                  ,
                                                   >
                                                  -
                         Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                 N
                   Appeal from the United States District Court
                  for the Eastern District of Kentucky at London.
       Nos.: 6:04-cr-70-1; 6:09-cv-7082—Danny C. Reeves, District Judge.
                              Decided and Filed: July 31, 2012
             Before: MOORE and COLE, Circuit Judges; ROSE, District Judge.*

                                       _________________

                                            COUNSEL
ON BRIEF: Alistair E. Newbern, VANDERBILT LAW SCHOOL, Nashville,
Tennessee, for Appellant. Charles P. Wisdom, Jr., Erin M. Roth, UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. Ricky Jones, Beaver,
West Virginia, pro se.
      MOORE, J., delivered the opinion of the court, in which COLE, J., joined.
ROSE, D. J. (p. 10), delivered a separate opinion concurring in the result.
                                       _________________

                                             OPINION
                                       _________________

         KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ricky Jones
pleaded guilty on April 11, 2005, to one count of being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He was classified as an armed



         *
           The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio,
sitting by designation.


                                                   1
No. 10-5105        Jones v. United States                                           Page 2


career criminal based on three prior felony convictions and sentenced to a term of
188 months of imprisonment. One of those prior convictions was for reckless homicide
under Kentucky law. Jones now appeals the denial of his pro se motion to vacate his
sentence under 28 U.S.C. § 2255 on the basis of Begay v. United States, 553 U.S. 137
(2008). We agree with Jones and the United States that Jones is entitled to relief in this
case. We therefore REVERSE the judgment of the district court and REMAND for
resentencing consistent with this opinion.

                                  I. BACKGROUND

         In January 2004, the police received complaints that Jones was allegedly
brandishing a firearm and had discharged it. Jones was thereafter detained in a traffic
stop during which an officer discovered a loaded revolver in the vehicle. At the time,
Jones had been convicted of three prior felonies: (1) “Theft of Property of the Value of
more than $100” and second-degree escape in 1982; (2) second-degree robbery in 1991;
and (3) reckless homicide in 1999. R. 1 (Compl. Aff. at ¶9) (Page ID #3). On
April 11, 2005, Jones pleaded guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Because Jones was
deemed to be an armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), Jones faced a mandatory minimum sentence of fifteen
years.

         Jones filed his first motion pursuant to 28 U.S.C. § 2255 on July 10, 2009,
seeking relief pro se on the basis of Begay. Begay was announced April 16, 2008, but
Jones claimed that he did not hear of the decision until other prisoners informed him of
it in May 2009. The district court denied Jones’s motion to vacate without asking the
government to respond for three reasons: (1) Jones’s Begay claim was time-barred and
not entitled to equitable tolling; (2) reckless homicide in Kentucky is a crime of violence
under the Armed Career Criminal Act; and (3) in any event, Begay does not apply
No. 10-5105            Jones v. United States                                                       Page 3


retroactively. Jones, now with counsel, timely appeals on all three bases. We agree with
Jones and address his arguments in reverse order.1

                             II. APPLICATION OF THE ACCA

A. Retroactivity of Begay

         Although we have not yet decided whether Begay applies retroactively, we hold
so today. The Supreme Court has set forth a three-part test for determining whether a
defendant is entitled to retroactive relief following the pronouncement of a seemingly
new rule of law: (1) the defendant’s judgment must be final when the rule is announced;
(2) the rule must in fact be new; and (3) the rule must be either a substantive rule of
criminal law or a watershed rule of criminal procedure. O’Dell v. Netherland, 521 U.S.
151, 156-57 (1997) (citing Teague v. Lane, 489 U.S. 288, 311-12 (1989)).2 Jones’s
conviction became final in 2005 after his time to file a direct appeal expired; Begay was
not announced until 2008. The first element is therefore easily met.

         We agree with the district court and the parties that Begay announced a “new
rule” because its holding was not dictated by prior precedent. See Graham v. Collins,
506 U.S. 461, 467 (1993). “A holding constitutes a ‘new rule’ within the meaning of
Teague if it breaks new ground, imposes a new obligation on the States or the Federal

         1
            The United States has identified a number of affirmative defenses that it has explicitly declined
to assert, including a waiver provision in Jones’s plea agreement, procedural default, and the statute of
limitations. Appellee Br. at 11-12. Because procedural default and plea-agreement waivers are not
jurisdictional arguments, we are not required to consider these defenses sua sponte and decline to do so.
See Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005) (declining to consider procedural default sua
sponte), cert. denied, 546 U.S. 1100 (2006); Hunter v. United States, 160 F.3d 1109, 1113-14 (6th Cir.
1998) (declining to enforce plea-agreement waiver after government failed to timely raise the defense);
see also United States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir.) (noting appellate waivers are not
jurisdictional), cert. denied, 549 U.S. 1088 (2006). The district court, however, did consider sua sponte
the issue of timeliness. The Supreme Court has held that district courts may dismiss state habeas petitions
sua sponte on timeliness grounds, see Day v. McDonough, 547 U.S. 198, 209 (2006), but we have not yet
held whether that holding extends to federal habeas petitioners, see Solomon v. United States, 467 F.3d
928, 929 n.1 (6th Cir. 2006). We again decline to address that issue, because regardless Jones is entitled
to relief from the statute of limitations on the basis of equitable tolling as discussed herein.
         2
          Although the Teague analysis on retroactivity has not been applied by the Supreme Court to
§ 2255 motions, see Danforth v. Minnesota, 552 U.S. 264, 269 n.4, 281 n.16 (2008), our circuit along with
others has held that Teague is equally applicable to § 2254 and § 2255 proceedings. See, e.g., Duncan v.
United States, 552 F.3d 442, 444 n.2 (6th Cir. 2009) (applying Teague to § 2255 motion but expressing
concerns about propriety of doing so “because many of the comity and federalism concerns animating
Teague are lacking”); Humphress v. United States, 398 F.3d 855 (6th Cir.), cert. denied, 546 U.S. 885
(2005) (applying Teague to § 2255 motion).
No. 10-5105        Jones v. United States                                          Page 4


Government, or was not dictated by precedent existing at the time the defendant’s
conviction became final.” Id. at 467 (internal quotation marks and emphasis omitted).
We do not believe that a federal court, had it considered this claim at the time Jones’s
conviction became final, “would have felt compelled by existing precedent to conclude,”
O’Dell, 521 U.S. at 156, that convictions based on reckless behavior do not qualify as
predicate felonies under 18 U.S.C. § 924(e)(2)(B)(ii), Begay, 553 U.S. at 145. Indeed,
several reasonable jurists on the Supreme Court itself disagreed with the rule announced
in Begay. We reached the same conclusion in Humphress v. United States, 398 F.3d 855
(6th Cir.), cert. denied, 546 U.S. 885 (2005), where we held that United States v. Booker,
542 U.S. 220 (2005), was a new rule because the result was not apparent to “all
reasonable jurists” prior to being announced. Humphress, 398 F.3d at 861 (internal
quotation marks omitted).

       We also agree with the parties and our sister circuits that Begay is a substantive
rule, not a procedural rule. Substantive rules are “decisions that narrow the scope of a
criminal statute by interpreting its terms, as well as constitutional determinations that
place particular conduct or persons covered by the statute beyond the State’s power to
punish.” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (citations omitted). They
also include “rules prohibiting a certain category of punishment for a class of defendants
because of their status or offense.” O’Dell, 521 U.S. at 157 (internal quotation marks
omitted). Substantive rules “apply retroactively because they necessarily carry a
significant risk that a defendant stands convicted of an act that the law does not make
criminal or faces a punishment that the law cannot impose upon him.” Schriro, 542 U.S.
at 352 (internal quotation marks omitted). Procedural rules, on the other hand, “do not
produce a class of persons convicted of conduct the law does not make criminal, but
merely raise the possibility that someone convicted with use of the invalidated procedure
might have been acquitted otherwise.” Id. New procedural rules are retroactive only if
they announce a “watershed rule[] of criminal procedure.” Id. (internal quotation marks
omitted).
No. 10-5105             Jones v. United States                                                       Page 5


         Begay is a new substantive rule and not procedural because it substantially
altered the punishment certain categories of defendants may face for a crime. We agree
with the well-reasoned analysis of our sister circuits who have reached the same result.
See Welch v. United States, 604 F.3d 408, 415 (7th Cir. 2010) (holding Begay and
Chambers announced new substantive rules), cert. denied, 131 S. Ct. 3019 (2011);
Lindsey v. United States, 615 F.3d 998, 1000 (8th Cir. 2010) (holding Begay retroactive),
cert. denied, 131 S. Ct. 1712 (2011); United States v. Shipp, 589 F.3d 1084, 1090
(10th Cir. 2009) (holding Chambers retroactive).3 A defendant who does not qualify as
an armed career criminal after Begay who nonetheless remains subject to a fifteen-year
mandatory minimum sentence “faces a punishment that the law cannot impose upon
him.” Schriro, 542 U.S. at 352. Without the ACCA, the statutory maximum Jones could
receive for being a felon in possession of a firearm was ten years. “[T]he application of
the ACCA imposed, at a minimum, five years of imprisonment that the law otherwise
could not impose upon him under his statute of conviction.” Welch, 604 F.3d at 415.

         Although Begay did not alter the underlying elements of the crime, the new rule
nonetheless “involve[d] the substantive construction of a criminal statute,” Murr v.
United States, 200 F.3d 895, 906 (6th Cir. 2000), here the ACCA. And the new
construction substantially changed the lawful punishment certain classes of defendants
may receive for a particular crime. Welch, 604 F.3d at 415; Shipp, 589 F.3d at 1090.
Our holding in Humphress is not to the contrary, because Booker did not reduce the
maximum available sentence for any crime. Humphress, 398 F.3d at 862 (holding
Booker not a substantive rule); see also Welch, 604 F.3d at 415 (distinguishing Booker).
Because Begay is a new, substantive rule, we hold that Begay applies retroactively.




         3
           Although the district courts appear split on the matter, we are aware of no federal circuit court
that has held that Begay is not entitled to retroactive application. The First Circuit, however, has suggested
in dicta that a change in the First Circuit’s interpretation of the career-offender enhancement in the U.S.
Sentencing Guidelines “affects only the procedure by which a district court calculates a defendant’s
sentence. It . . . is not a retroactive substantive change in the law.” United States v. Giggey, 551 F.3d 27,
36 n.3 (1st Cir. 2008).
No. 10-5105         Jones v. United States                                           Page 6


B. Application of Begay to Reckless Homicide Conviction

        The next question is whether the retroactive application of Begay would change
the outcome of Jones’s sentence given his past convictions. We hold that it does. Jones
was treated as an armed career criminal for three prior felony convictions: (1) a 1982
second-degree escape; (2) a 1991 second-degree robbery; and (3) a 1999 reckless-
homicide conviction. Jones attacks only the third, his 1999 conviction for reckless
homicide. To qualify as a violent felony under the ACCA, a prior felony conviction
must either have an element of the “use of physical force,” 18 U.S.C. § 924(e)(2)(B)(i),
or else be a conviction for “burglary, arson, or extortion, involve[] the use of explosives,
or otherwise involve[] conduct that presents a serious potential risk of physical injury
to another,” id. § 924(e)(2)(B)(ii).

        Under Kentucky law, reckless homicide occurs when a person causes the death
of another “with recklessness.” Ky. Rev. Stat. § 507.050(1). When a crime requires
only the mens rea of recklessness, it cannot qualify under the “use of physical force”
subsection of the ACCA. United States v. McMurray, 653 F.3d 367, 375 (6th Cir. 2011)
(“[W]e conclude that the ‘use of physical force’ clause of the ACCA, § 924(e)(2)(B)(i),
requires more than reckless conduct.”) (citing Leocal v. Ashcroft, 543 U.S. 1, 9-11
(2004)). The district court therefore erred in concluding that Jones’s reckless homicide
conviction could qualify under this subsection of § 924(e)(2)(B).

        Jones’s conviction also no longer qualifies under the second subsection of
§ 924(e)(2)(B) in light of Begay. Jones’s conviction is not for one of the specific
enumerated offenses; therefore, to be included, his conviction for reckless homicide must
have “otherwise involve[d] . . . a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). Begay held that the “otherwise” clause included only
convictions resembling the enumerated offenses and therefore only convictions
“involv[ing] purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45
(internal quotation marks omitted). As a result, reckless conduct no longer qualifies
under the residual clause either. The Supreme Court has modified the standard in both
Chambers v. United States, 555 U.S. 122 (2009), and Sykes v. United States, 131 S. Ct.
No. 10-5105        Jones v. United States                                           Page 7


2267 (2011), but the prohibition on reckless crimes still stands. See McMurray, 653
F.3d at 376 n.9. Therefore, Jones’s conviction for reckless homicide cannot be counted
for ACCA purposes.

C. Equitable Tolling

       Finally, although Jones did not file his § 2255 motion within a year of the
decision in Begay as required by § 2255(f), we hold that he is entitled to equitable
tolling. Equitable tolling is used sparingly and “only if two requirements are met. First,
the petitioner must establish that he has been pursuing his rights diligently. And second,
the petitioner must show that some extraordinary circumstance stood in his way and
prevented timely filing.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749
(6th Cir. 2011) (citations and internal quotation marks omitted), petition for cert. filed,
No. 11-10643 (U.S. April 25, 2012). Where the determinative facts are undisputed, the
decision whether to apply equitable tolling is reviewed de novo. Solomon v. United
States, 467 F.3d 928, 932 (6th Cir. 2006).

       Generally, to qualify as “extraordinary circumstances,” the petitioner must show
more than just his status as pro se or his limited access to a law library. Hall, 662 F.3d
at 751. But the Supreme Court has also instructed us not to be rigid in our application
of these principles and to consider each claim for equitable tolling on a case-by-case
basis. Holland v. Florida, 130 S. Ct. 2549, 2563 (2012). “The flexibility inherent in
equitable procedure enables courts to meet new situations that demand equitable
intervention, and to accord all the relief necessary to correct particular injustices.” Id.
(internal quotation marks and ellipsis omitted).

       Here, Jones missed the one-year deadline by less than three months. Jones
explained in his filings before the district court that he did not learn of the Supreme
Court’s holding in Begay until May 12, 2009, due in large part to a series of prison
transfers immediately before the case was announced that separated him from his legal
materials and made it difficult for him to acquire access to new legal information from
other prisoners. In February 2008, before Begay was announced, Jones states that he
was transferred without his legal materials to a new facility following medical treatment.
No. 10-5105            Jones v. United States                                                     Page 8


In June 2008, the Bureau of Prisons initiated a medical transfer from that new facility
to yet another in West Virginia, but he did not arrive until September 2008 after
spending time in holding facilities in Georgia and Oklahoma, still without his legal
materials. Jones is partially illiterate and must rely on other prisoners for knowledge of
changes in the legal landscape. He also has a variety of medical conditions, including
seizures, that require frequent medication and impeded his ability to adequately obtain
legal information. Jones averred that throughout this time he was constantly questioning
others for legal advice on how to challenge his convictions, but did not receive
information about Begay until other inmates informed him about it in May 2009.4
Within two months of learning of his new right, he was able to obtain sufficient
assistance to submit a motion to vacate under § 2255.

         Although any one of the above factors may not constitute “extraordinary
circumstances” alone, the combination of all of these factors justifies applying equitable
tolling to Jones’s claims. See Solomon, 467 F.3d at 934-35 (6th Cir. 2006) (holding
transfer of petitioner without legal materials and poor prison communication contributed
to application of equitable tolling);5 cf. Hall, 662 F.3d at 751-52 (distinguishing Solomon
because no evidence petitioner was separated from legal materials). Furthermore, Jones
has met his burden of demonstrating that he was not sleeping on his rights and was
diligent in pursuing new claims and this claim in particular once he became aware of its
existence. The argument for equitable relief in this case is made all the more compelling
by the United States’s position that Jones should receive the relief he requests.




         4
           Even though knowledge of filing deadlines is no longer part of our inquiry, we note the inherent
differences between when the clock starts upon the conclusion of direct appeal and when the clock starts
upon the issuance of a new Supreme Court case. Although we expect inmates to have knowledge of both,
it would strain credulity to suggest that a defendant has the same level of access to information about the
issuance of new Supreme Court cases as he does about his direct appeal. Inmates without attorneys
typically become apprised of Supreme Court developments only through the prison grapevine, which is
hardly a model of speed or accuracy.
         5
          Although Solomon applied the pre-Holland test for equitable tolling, our subsequent cases have
continued to rely on its analysis of potential considerations when applying the new test. See, e.g., Hall,
662 F.3d at 751-52.
No. 10-5105      Jones v. United States                                  Page 9


                              III. CONCLUSION

      In light of the aforementioned conclusions, we REVERSE the judgment of the
district court and REMAND for resentencing Jones without the application of the
ACCA.
No. 10-5105        Jones v. United States                                       Page 10


                               ____________________

                                 CONCURRENCE
                               ____________________

       ROSE, District Judge, concurring in result. While I agree that Appellant’s
conviction under K.R.S. § 507.050(1) does not constitute a crime of violence under
Begay v. United States, 553 U.S. 137 (2008), and agree that Begay applies retroactively,
I do not find that the Appellant diligently pursued his rights or that extraordinary
circumstances prevented timely filing of his petition within one year of the Supreme
Court’s announcement of Begay. I concur in the majority’s result specifically because
the Appellee waived the one-year procedural bar established by the A.E.D.P.A.
