                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              September 21, 2017
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                    No. 16-8117
 MICHAEL LEE SNYDER,

        Defendant-Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF WYOMING
         (D.C. Nos. 2:16-CV-00058-ABJ and 2:04-CR-00118-ABJ-1)


Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with her on the briefs), Denver, Colorado, for Defendant-
Appellant.

Jason M. Conder, Assistant United States Attorney, Lander, Wyoming
(Christopher A. Crofts, United States Attorney, and David A. Kubichek, Assistant
United States Attorney, Casper, Wyoming, on the brief), for Plaintiff-Appellee.


Before KELLY, BRISCOE, and McHUGH, Circuit Judges.


BRISCOE, Circuit Judge.


      In this 28 U.S.C. § 2255 motion, Michael Lee Snyder asks for immediate

release from federal custody on the basis that he has already served more than the
maximum sentence allowed by law for his crimes. In particular, he argues that

the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135

S. Ct. 2551 (2015), invalidates his sentence enhancement under the Armed Career

Criminal Act (ACCA). The district court denied Snyder’s motion. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. In doing so, we conclude

that Snyder has timely asserted a Johnson claim and has established cause and

prejudice to avoid procedural default, but his claim fails on the merits because,

after examination of the record and the relevant background legal environment, it

is apparent that he was not sentenced based on the ACCA’s residual clause that

was invalidated in Johnson.

                                         I

      In December 2004, Snyder pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). ROA, Vol. 2 at 416. A

presentence report (PSR) was prepared and submitted to the district court and the

parties. The PSR concluded, in a section entitled “Offense Level Computations,”

that Snyder was “subject to an enhanced sentence under the provisions of 18

U.S.C. § 924(e) as an armed career criminal” because “[h]e ha[d] sustained two

convictions for Burglary of two residences, and a conviction of a controlled

substance offense, Delivery of Marijuana.” Supp. ROA at 7. The PSR in turn, in

a section entitled “THE Defendant’S [sic] CRIMINAL HISTORY,” discussed

Snyder’s criminal history and noted, in pertinent part, that Snyder had a

                                         2
November 1994 Wyoming state conviction for delivery of marijuana, as well as

two Wyoming state convictions for burglary of inhabited residences, one arising

in October 1995 and the other in January 2004. Id. at 7, 12-13, 18. Finally, in a

section entitled “SENTENCING OPTIONS,” the PSR concluded that Snyder’s

“minimum term of incarceration [wa]s fifteen years and the maximum term [wa]s

life” pursuant to “18 U.S.C. § 924(e)(1).” Id. at 25.

      Snyder objected to the PSR’s proposed application of the ACCA on the

grounds that doing so would violate Apprendi v. New Jersey, 530 U.S. 466

(2000), because the fact of his prior convictions had not been alleged in the

indictment or proven to a jury beyond a reasonable doubt.

      The district court sentenced Snyder on March 1, 2005. Snyder’s counsel

reiterated the Apprendi-based objection to Snyder being sentenced under the

ACCA. At no time, however, did Snyder’s counsel otherwise argue that Snyder’s

Wyoming burglary convictions failed to constitute predicate offenses under the

ACCA. The district court rejected Snyder’s Apprendi-based objection, adopted

the PSR’s calculations and recommendations, and sentenced Snyder to the

statutory minimum sentence of 15 years, less seven months and nineteen days

served on a related state sentence, for which credit could not be granted by the

Federal Bureau of Prisons pursuant to 18 U.S.C. § 3585.

      Snyder filed a direct appeal challenging his sentence. In doing so, he

asserted only his Apprendi-based objections and made no argument that his prior

                                          3
convictions failed to qualify as predicate offenses under the ACCA. This court

rejected Snyder’s arguments and affirmed his sentence. See United States v.

Snyder, 158 F. App’x. 942 (10th Cir. 2005) (unpublished).

      On June 26, 2015, the Supreme Court decided Johnson. On October 15,

2015, Snyder filed a letter with the district court asking for assistance in

obtaining relief under Johnson. ROA, Vol. 1 at 6. Then, on March 30, 2016,

with the assistance of counsel, he filed a motion to vacate his sentence and for

immediate release pursuant to 28 U.S.C. § 2255. Id. at 39. In this motion, he

asserted that, following the Court’s decision in Johnson, his Wyoming state

burglary convictions no longer qualify as predicate offenses under the ACCA, so

he is not an armed career criminal, and his enhanced sentence exceeds the

maximum authorized by law. See id. at 41.

      The district court denied Snyder’s motion and also denied a Certificate of

Appealability (COA). See id. at 132–52; see Fed. R. App. P. 22. We granted a

COA and heard argument on the merits.

                                          II

      “On appeal from the denial of a § 2255 motion, ordinarily ‘we review the

district court’s findings of fact for clear error and its conclusions of law de

novo.’” United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting

United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)).

                                      Timeliness

                                           4
      A § 2255 motion must be filed within one year of the latest of four

qualifying events. 28 U.S.C. § 2255(f). As relevant here, this is the latest of

either “the date on which the judgment of conviction bec[ame] final” or “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 review.” Id. § 2255(f)(1), (3).

      The district court concluded that Snyder’s motion was not timely under

either of these subsections. To begin with, it concluded that the motion was not

timely under § 2255(f)(1) because it was filed more than a year after the date on

which his judgment of conviction became final. Further, the district court

concluded that the motion was not timely under § 2255(f)(3) because, even

though it alleged a right to relief under Johnson, “[t]he actual facts of record in

this matter offer[ed] no basis whatsoever for the notion the sentence [Snyder]

received was based on the ACCA’s ‘residual clause,’ rather than its ‘enumerated

offenses clause.’” ROA at 133. In other words, the district court looked beyond

the allegations contained in Snyder’s § 2255 motion and determined whether

Snyder was actually entitled to relief under Johnson. Id. Although, as we shall

explain below, we ultimately agree with the district court that Snyder is not

entitled to relief under Johnson, we disagree that his § 2255 motion was untimely.

      By its plain language, the statute allows a § 2255 motion to be filed within

one year of “the date on which the right asserted was initially recognized by the

                                           5
Supreme Court.” 28 U.S.C. § 2255(f)(3) (emphasis added). “We give the words

of a statute their ordinary, contemporary, common meaning, absent an indication

Congress intended them to bear some different import.” Wall v. Kholi, 562 U.S.

545, 551 (2011) (quoting Williams v. Taylor, 529 U.S. 420, 431 (2000)). To

“assert” means “[t]o state positively” or “[t]o invoke or enforce a legal right.”

Assert, Black’s Law Dictionary (10th ed. 2014). Thus, in order to 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. 1

       And Snyder’s § 2255 motion did just that, alleging, in pertinent part, that

his “ACCA sentence is no longer valid under Johnson.” ROA, Vol. 1 at 41. In

Johnson, the Court held that “imposing an increased sentence under the residual

clause of the Armed Career Criminal Act violates the Constitution’s guarantee of

due process” because “the indeterminacy of the wide-ranging inquiry required by



       1
         In her concurrence, Judge McHugh concludes, citing United States v.
Winston, 850 F.3d 677, 682 (4th Cir. 2017), that she “would allow Mr. Snyder to
rely on § 2255(f)(3) and . . . would [thus] conclude that the petition is timely.”
Concurrence at 5 (emphasis added). Winston, however, addressed a slightly
different question: whether the movant, who sought to file a second § 2255
motion, could “show that his claim ‘relie[d] on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.’” 850 F.3d at 682 (quoting 28 U.S.C. § 2244(b)(2)(A)).
Whether or not the phrase “the right asserted,” as used in § 2255(f)(3), effectively
carries the same meaning as “relies on,” as used in § 2244(b)(2)(A), is a question
we need not address.

                                          6
the residual clause both denies fair notice to defendants and invites arbitrary

enforcement by judges.” Johnson, 135 S. Ct. at 2557. Then, in Welch v. United

States, __ U.S. __, 136 S. Ct. 1257 (2016), the Court held that this rule “ha[d]

retroactive effect in cases on collateral review.” Welch, 136 S. Ct. at 1268.

Because the residual clause is invalid, “it can no longer mandate or authorize any

sentence.” Id. at 1265 (emphasis added). Whether or not Snyder can ultimately

prevail on his motion, he asserts the right established in Johnson, to be free from

a sentence purportedly authorized by the unconstitutionally vague residual clause.

Thus, his § 2255 motion, filed within a year of the Court’s decision in Johnson, is

timely under § 2255(f)(3).

                                 Procedural Default

       “[T]he general rule [is] that claims not raised on direct appeal may not be

raised on collateral review unless the petitioner shows cause and prejudice.”

Massaro v. United States, 538 U.S. 500, 504 (2003). “The procedural-default rule

is neither a statutory nor a constitutional requirement, but it is a doctrine adhered

to by the courts to conserve judicial resources and to respect the law’s important

interest in the finality of judgments.” Id. Snyder asserts, and we agree, that he

has demonstrated cause and prejudice sufficient to overcome the procedural

default rule. 2

       2
      Thus, we do not address his argument that he is actually innocent of the
ACCA. See Dretke v. Haley, 541 U.S. 386, 393–94 (2004) (“[A] federal court
                                                                           (continued...)

                                           7
Cause

        Cause excusing procedural default is shown if a claim “is so novel that its

legal basis [wa]s not reasonably available to counsel” at the time of the direct

appeal. 3 Reed v. Ross, 468 U.S. 1, 16 (1984). As is relevant here, the Supreme

Court has stated that, if one of its decisions “explicitly overrule[s]” prior

precedent when it articulates “a constitutional principle that had not been

previously recognized but which is held to have retroactive application,” then,

prior to that decision, the new constitutional principle was not reasonably

available to counsel, so a defendant has cause for failing to raise the issue. Id. at

17.



(...continued)
faced with allegations of actual innocence, whether of the sentence or of the
crime charged, must first address all nondefaulted claims for comparable relief
and other grounds for cause to excuse the procedural default.”).
        3
         The Supreme Court has indicated that the standard for cause and
prejudice operates consistently in motions under both § 2254 and § 2255. See
Bousley, 523 U.S. at 622 (addressing a federal procedural default in a motion
under § 2255 and quoting Reed v. Ross, 468 U.S. 1, 16 (1984), which addressed a
state procedural default under § 2254); Frady, 456 U.S. at 167 (establishing the
cause and prejudice standard for procedural default in a motion under § 2255, and
citing Davis v. United States, 411 U.S. 233 (1973) (addressing a motion under
§ 2255), Francis v. Henderson, 425 U.S. 536 (1976) (same), and Wainwright v.
Sykes, 433 U.S. 72 (1977) (addressing a motion under § 2254)); Reed, 468 U.S. at
8–9 (addressing a motion under § 2254, but citing the standard from Frady, 456
U.S. 152, which addressed a motion under § 2255); Frady. 456 U.S. at 166
(noting that, although a § 2255 motion does not implicate concerns of comity for
state court judgments that exist in a § 2254 motion, there is “no basis for
affording federal prisoners a preferred status when they seek postconviction
relief”). Because the Court cites these cases interchangeably, we do as well.

                                           8
      And that is precisely the situation here. As the District of Columbia Circuit

has noted, “it is fair to say that no one—the government, the judge, or the

[defendant]—could reasonably have anticipated Johnson.” United States v.

Redrick, 841 F.3d 478, 840 (D.C. Cir. 2016). In fact, between the time we

affirmed Snyder’s sentence on direct appeal and the time Johnson was issued, the

Supreme Court twice rejected constitutional challenges to the ACCA’s residual

clause. See Sykes v. United States, 564 U.S. 1 (2011); James v. United States,

550 U.S. 192 (2007). We therefore conclude that the Johnson claim was not

reasonably available to Snyder at the time of his direct appeal, and that this is

sufficient to establish cause.

Prejudice

      Snyder must also show “‘actual prejudice’ resulting from the errors of

which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). The

Supreme Court has “refrained from giving ‘precise content’ to the term

‘prejudice,’ expressly leaving to future cases further elaboration of the

significance of that term,” id. at 168 (quoting Wainwright v. Sykes, 433 U.S. 72,

91 (1977)), but its language indicates that Snyder must show that the error of

which he complains is an “error of constitutional dimensions” that “worked to his

actual and substantial disadvantage.” Id. at 170.

      Snyder was sentenced under 18 U.S.C. § 924(e)(1), which carries a

mandatory minimum sentence of fifteen years’ imprisonment. He claims that this

                                          9
statute does not apply to him and that his ACCA sentence enhancement is invalid

after Johnson. If he is correct, he should instead have been sentenced under 18

U.S.C. § 924(a)(2), which carries a statutory maximum sentence of only ten

years’ imprisonment. Thus, there is not just a possibility, but a certainty, that the

alleged error influenced the outcome of Snyder’s sentencing, because his sentence

of 172 months and 10 days would exceed the statutory maximum allowed for his

crimes. A sentence that is not authorized by law is certainly an “actual and

substantial disadvantage” of “constitutional dimensions.” See Frady, 456 U.S. at

170. Thus, Snyder has shown actual prejudice arising from the asserted error.

Because he has shown both cause and prejudice, his claim overcomes procedural

default.

                           The Merits of Snyder’s Claim

      Finally, we turn to the merits of Snyder’s claim. Snyder alleges in his

§ 2255 motion that “[u]nder Johnson, [his] prior burglary convictions cannot

sustain the ACCA sentencing enhancement.” ROA, Vol. 1 at 42. This allegation

necessarily implies that the district court, in sentencing Snyder under the ACCA,

concluded that his prior burglary convictions fell within the scope of the ACCA’s

residual clause. In other words, it necessarily implies that Snyder’s ACCA

sentence “was imposed under an invalid—indeed, unconstitutional—legal theory,

and that [Snyder] was, therefore, sentenced in violation of the Constitution.”

United States v. Geozos, No. 17-35018, slip op. at 10, 2017 WL 3712155 at *4

                                          10
(9th Cir. Aug. 29, 2017).

      The district court, however, found that “[t]he actual facts of record in this

matter offer no basis whatsoever for the notion the sentence [Snyder] received

was based on the ACCA’s ‘residual clause,’ rather than its ‘enumerated offenses

clause.’” ROA, Vol. 1 at 133. In other words, the district court found, as a

matter of historical fact, that it did not apply the ACCA’s residual clause in

sentencing Snyder under the ACCA. In support, the district court began by noting

that “[b]urglary is an enumerated offense under the ACCA, and [Snyder’s]

criminal history included three of them, two of which were characterized by the

PSR as residential burglaries.” Id. The district court in turn noted that the PSR

“only counted these two residential burglary convictions for ACCA purposes” and

“did not count [Snyder’s] prior automobile burglary conviction under the very

same statute, clearly recognizing, under Taylor v. United States[, 495 U.S. 575

(1990)], vehicle burglaries do not count for ACCA purposes.” Id. (emphasis in

original). The district court also noted that Snyder “made absolutely no objection

to the PSR characterization of his residential burglary convictions as violent

felonies under the ACCA, other than his Apprendi claim.” Id. at 134. Likewise,

the district court noted, Snyder “simply renewed his Apprendi claim” at the

sentencing hearing, “and argued nothing more.” Id. Lastly, the district court

noted that phrase “residual clause” was not mentioned at all in the PSR or at any

other time “throughout [Snyder’s] entire sentencing process.” Id. at 135.

                                         11
      We agree with the district court. “[A] court’s determination that a

defendant qualifies for an ACCA enhancement is a finding.” Geozos, slip op. at

9, 2017 WL 3712155 at *3 (citing Shepard v. United States, 544 U.S. 13, 25

(2005)). It is, however, a finding that “rests largely on legal conclusions—state

offense X is categorically a ‘violent felony,’ state offense Y is not, etc.” Id., slip

op. at 12, 2017 WL 3712155 at *4. “For that reason, it may be possible to

determine that a sentencing court did not rely on the residual clause—even when

the sentencing record alone is unclear—by looking to the relevant background

legal environment at the time of sentencing.” Id.

      If, for instance, binding circuit precedent at the time of sentencing
      was that crime Z qualified as a violent felony under the force clause,
      then a court’s failure to invoke the force clause expressly at
      sentencing, when there were three predicate convictions for crime Z,
      would not render unclear the ground on which the court’s ACCA
      determination rested. * * * By analogy, a claim does not ‘rely’ on
      [Johnson] if it is possible to conclude, using both the record before
      the sentencing court and the relevant background legal environment
      at the time of sentencing, that the sentencing court’s ACCA
      determination did not rest on the residual clause.

Id., slip op. at 12-13, 2017 WL 3712155 at *4. Thus, the relevant background

legal environment is, so to speak, a “snapshot” of what the controlling law was at

the time of sentencing and does not take into account post-sentencing decisions

that may have clarified or corrected pre-sentencing decisions.

      In this case, Snyder’s sentencing proceeding occurred against the backdrop

of the Supreme Court’s decision in Taylor. In Taylor, the Supreme Court


                                          12
construed the ACCA’s enumerated offenses clause and held

      that a person has been convicted of a burglary for purposes of a
      § 924(e) enhancement if he is convicted of any crime, regardless of
      its exact definition or label, having the basic elements of unlawful or
      unprivileged entry into, or remaining in, a building or structure, with
      intent to commit a crime.

495 U.S. at 599. The Court also held that “[t]his categorical approach . . . may

permit [a] sentencing court to go beyond the mere fact of conviction in a narrow

range of cases where a jury was actually required to find all the elements of

generic burglary.” Id. at 602. “For example,” the Court stated,

      in a State whose burglary statutes include entry of an automobile as
      well as a building, if the indictment or information and jury
      instructions show that the defendant was charged only with a
      burglary of a building, and that the jury necessarily had to find an
      entry of a building to convict, then the Government should be
      allowed to use the conviction for enhancement.

Id.

      In light of Taylor, there would have been little dispute at the time of

Snyder’s sentencing that his two Wyoming burglary convictions involving

occupied structures fell within the scope of the ACCA’s enumerated crimes

clause. 4 To be sure, the Wyoming statute under which these convictions arose


      4
        Approximately four years after Snyder was sentenced, this court expressly
concluded that Wyoming state burglary convictions that involved occupied
structures constituted qualifying offenses under the ACCA’s enumerated crimes
clause. United States v. Gonzales, 558 F.3d 1193, 1196-98 (10th Cir. 2009).
       Gonzales has since been abrogated by the Supreme Court’s decision in
Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016). In Mathis, the
                                                                    (continued...)

                                         13
includes entry of “occupied structure[s] or vehicle[s].” Wyo. Stat. § 6-3-301(a).

But it would have been permissible for the district court to examine the

underlying charging documents and/or jury instructions to determine if Snyder

was charged only with burglary of buildings. And the PSR in Snyder’s case

actually did just that, without any objection from Snyder.

      Considering the record in Snyder’s case in light of this relevant background

legal environment, we are unable to disagree with the district court’s finding that

its ACCA determination rested on application of the enumerated crimes clause,

rather than the residual clause. As the district court noted, there is no mention

whatsoever of the residual clause in the PSR or any of the other district court

pleadings or transcripts. Moreover, given the relevant background legal

environment that existed at the time of Snyder’s sentencing, there would have

been no need for reliance on the residual clause.



      Finally, it is telling that Snyder’s § 2255 pleadings focus primarily on the



      4
        (...continued)
Supreme Court held that in “determin[ing] whether a prior conviction is for
generic burglary (or other listed crime) courts apply . . . the categorical approach”
and must “focus solely on whether the elements of the crime of conviction
sufficiently match the elements of generic burglary, while ignoring the particular
facts of the case.” 136 S. Ct. at 2248. Thus, the Court held, “if the crime of
conviction covers any more conduct than the generic offense, then it is not an
ACCA ‘burglary’—even if the defendant’s actual conduct (i.e., the facts of the
crime) fits within the generic offense’s boundaries.” Id.

                                         14
applicability of the enumerated crimes clause. Indeed, we agree with the

government that Snyder’s “contention [i]s not a true Johnson claim, but [i]s rather

a poorly disguised claim under Taylor[ v. United States, 495 U.S. 575 (1990)],

Shepard[ v. United States, 544 U.S. 13 (2005)], and their progeny” that his

convictions for Wyoming burglary do not qualify as predicate offenses under the

enumerated crimes clause. Aplee. Br. at 14.

      For these reasons, we conclude that Snyder’s Johnson claim must fail

because the district court’s ACCA’s determination at the time of sentencing rested

on the enumerated crimes clause rather than the residual clause.

                                        IV

      The decision of the district court denying Snyder’s motion under 28 U.S.C.

§ 2255 is AFFIRMED.




                                         15
16-8117, United States v. Snyder
McHUGH, Circuit Judge, concurring in result.


       I concur with the majority opinion that Mr. Snyder cannot prevail on his motion to

vacate or correct his sentence. But I write separately because I depart from the majority’s

“Timeliness” analysis.

       First, I agree with the majority that Mr. Snyder has “asserted” a claim based on the

Supreme Court’s recent decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct.

2551 (2015). Maj. Op. at 5–7. In my view, however, that assertion is not sufficient to

afford Mr. Snyder an additional year in which to bring his petition.

       Section 2255(f)(3) provides that Mr. Snyder had one year from “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 review.” 28 U.S.C. § 2255(f)(3). This provision expressly requires more than

an “assertion” of a right by the petitioner. Instead, to be entitled to file within one year of

a Supreme Court decision: (1) the petitioner must assert the right; (2) the right asserted

must have been recognized in the Supreme Court decision; (3) that recognition by the

Supreme Court must be new; and (4) the newly recognized right must have been made

retroactively applicable to cases on collateral review by the Supreme Court. In my view,

the majority overlooks all but the first of these requirements in its interpretation of

§ 2255(f)(3). And by doing so, the majority interprets the statute inconsistently with

Congress’s intent to limit the number of collateral-review cases before the federal courts
and thereby encourage respect for the finality of convictions. See Case v. Hatch, 731 F.3d

1015, 1045 (10th Cir. 2013) (“Congress enacted AEDPA, not only to afford the

appropriate respect for the finality of state court proceedings, but also with the intent to

conserve judicial resources and to streamline the federal habeas process . . . .”).

       By focusing on only part of the language of § 2255(f)(3), the majority ignores the

ways in which Congress cabined a petitioner’s ability to defeat these legislative goals. To

be sure, the majority provides a well-reasoned and persuasive analysis of the term

“asserts,” concluding that it requires merely that the petitioner “state positively” or

“invoke or enforce a legal right.” Maj. Op. at 6. But an assertion is only a part of what

must occur before an otherwise untimely petition can be filed under § 2255(f)(3).

       The statute next requires that the right asserted be “recognized by the Supreme

Court.” 28 U.S.C. 2255(f)(3). The majority correctly states that we must give statutory

terms “their ordinary, contemporary, common meaning, absent an indication Congress

intended them to bear some different import.” Wall v. Kholi, 562 U.S. 545, 551 (2011)

(quoting Williams v. Taylor, 529 U.S. 420, 431 (2000)). Maj. Op. at 6. There is no

contrary indication here, so we apply the common meaning of the term “recognize” used

in § 2255(f)(3). To “recognize” means “to admit the fact, truth or validity of.” Recognize,

Webster’s Third New International Dictionary of the English Language Unabridged

(2002).

       The only right the Supreme Court “admit[ted] the fact, truth, or validity of” in

Johnson, is the right not to be sentenced as an armed career criminal under the residual

clause of the Armed Career Criminal Act (“ACCA”). Thus, to the extent a petitioner

                                              2
asserts any other right, I would hold that it is not a right “recognized” by Johnson. See

United States v. Kundo, No. 16-4128, 2017 WL 3084628, at *3 (10th Cir. July 20, 2017)

(unpublished) (holding that the petition was untimely despite the assertion of Johnson

because the petitioner had not been sentenced under the ACCA); United States v.

Contreras, __ F. App’x __, 2017 WL 1857236, at *2 (10th Cir. Mar. 8, 2017)

(unpublished) (holding that the petition was untimely despite the assertion of Johnson

because the petitioner’s sentence was imposed under enumerated-offenses clause of 18

U.S.C. § 3559(c) (three strikes law), rather than the residual clause of the ACCA). See

also Holt v. United States, 843 F.3d 720, 724 (7th Cir. 2016) (holding that although

petitioner’s burglary conviction was misclassified as a crime of violence, “the argument

being made was statutory rather than constitutional and did not rest on Johnson or any

other retroactive rule of constitutional law”). In Douglas v. United States, the Seventh

Circuit explained:

       The invocation of § 2255 is problematic. Douglas treats . . . [Johnson] as
       opening to collateral review all sentences under the Armed Career Criminal
       Act. Yet the Court did not hold the Act invalid; [Johnson] concerns only a
       part of § 924(e)(2)(B)(ii). The elements clause in § 924(e)(2)(B)(i) remains
       in effect, as does the burglary clause in § 924(e)(2)(B)(ii). . . . The district
       court concluded that Douglas’s prior convictions are violent felonies under
       the elements clause of § 924(e)(2)(B)(i), so [Johnson], does not affect his
       situation.

858 F.3d 1069, 1070 (7th Cir. 2017). Because the United States failed to object to the

defendant’s use of § 2255(f)(3), however, the Seventh Circuit gave effect to the United

States’ waiver. Id.




                                              3
       Thus, I do not agree that any petitioner who “asserts” a Johnson claim is then

entitled to challenge his career criminal status under any or all clauses of the Armed

Career Criminal Act, 18 U.S.C. § 924(e). Maj. Op. at 8–9. Instead, I would hold that the

court may reject a petition asserted under Johnson as untimely where the record reveals

that the petitioner is not asserting the right recognized in Johnson—the right not to be

sentenced as an armed career criminal under the residual clause of the ACCA. If the

petitioner is asserting any other right, including a right not to be sentenced under a

different clause of the ACCA, I would hold that § 2255(f)(3) is inapplicable and the

motion is untimely if not filed within one year of when the conviction became final.

       Accordingly, I would not extend the Supreme Court’s decision in Johnson as far as

the majority opinion would. In my view, when the sentencing court identifies the

particular clause of the ACCA that justifies the enhanced sentence, the defendant must

make a timely challenge to that enhancement if he believes the sentencing court’s

assessment was in error. Under the plain language of § 2255(f)(3), a defendant who fails

to do so cannot use the Supreme Court’s recognition of the right not to receive an

enhanced sentence under a different clause of the ACCA as a vehicle to raise that

challenge years later.

       Although I disagree with the application of the majority opinion’s analysis of

timeliness generally, I am in agreement as to the timeliness of Mr. Snyder’s petition. The

sentencing court in Mr. Snyder’s case did not indicate how he qualified as a career

criminal. Thus, he has asserted a right that may have been recognized by the Supreme

Court in Johnson. Under these circumstances, I would allow Mr. Snyder to rely on

                                              4
§ 2255(f)(3) and I would conclude that the petition is timely. See United States v.

Winston, 850 F.3d 677, 682 (4th Cir. 2017) (“We therefore hold that when an inmate’s

sentence may have been predicated on application of the now-void residual clause and,

therefore, may be an unlawful sentence under the holding in Johnson II, the inmate has

shown that he ‘relies on’ a new rule of constitutional law within the meaning of 28

U.S.C. § 2244(b)(2)(A).”). See also In re Chance, 831 F.3d 1335, 1340–41 (11th Cir.

2016).

         I am also in agreement with the majority’s analysis concerning Mr. Snyder’s

inability to prevail on the merits. Although the sentencing court did not identify the

specific basis for the ACCA enhancement, the record when read in light of the “relevant

background legal environment” leaves no doubt that Mr. Snyder’s ACCA enhancement

was based on the sentencing court’s application of the enumerated offenses clause. Maj.

Op. at 14. That clause remains in full force and effect after Johnson.

         I therefore join in the majority’s conclusion that the decision of the district court

denying Mr. Snyder’s motion under 28 U.S.C. § 2255 should be affirmed. Maj. Op. at 14.




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