                                                                                FILED
                                                                    United States Court of Appeals
                                        PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        April 8, 2019

                                                                        Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                          Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-2046

 MARK HOPKINS,

       Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                            for the District of New Mexico
            (D.C. Nos. 2:17-CV-00419-MCA and 2:09-CR-00863-MCA-1)
                       _________________________________

Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for Defendant -
Appellant.

C. Paige Messec, Assistant U.S. Attorney (John C. Anderson, U.S. Attorney, with her on
the brief), Albuquerque, New Mexico, for the Plaintiff - Appellee.
                        _________________________________

Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.
                   _________________________________

       Dr. Mark Hopkins filed a motion under 28 U.S.C. § 2255 to vacate his 2010

conviction and sentence for tax evasion. Before his trial, the district court ordered him to

make monthly payments into the court’s registry to ensure he was complying with federal

tax law. Several months later, Dr. Hopkins requested release of the funds so he and his
wife, who was being tried with him, could pay their attorneys. The district court ordered

the funds’ return. But then the IRS filed notice of a lien on the funds, prompting the

court clerk to file an interpleader action. The district court reversed course. Dr. Hopkins

never received the funds. He and his wife were convicted in a jury trial.

          Dr. Hopkins filed his § 2255 motion on March 29, 2017, following the Supreme

Court’s decision in Luis v. United States, 136 S. Ct. 1083 (2016). Luis recognized a

defendant’s Sixth Amendment right to use untainted assets to hire counsel of choice.1

Because his conviction became final in 2013, however, Dr. Hopkins’s motion fell outside

the usual one-year time limit set by § 2255(f)(1). He sought to avoid that time bar by

relying on § 2255(f)(3), arguing that Luis created a “newly recognized” right that would

be “retroactively applicable to cases on collateral review.” The district court held that

Luis did not create such a right, dismissed the motion, and granted a certificate of

appealability. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), (c)(1), we

affirm.




          1
         See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006) (“The right to
select counsel of one’s choice . . . has been regarded as the root meaning of the
constitutional guarantee [of the Sixth Amendment].”).

                                             2
                                    I. BACKGROUND

                                A. Trial and Direct Appeal

   Indictment and Pretrial Proceedings

       Dr. Hopkins and his wife Sharon Hopkins were tax protestors. They failed to pay

income taxes for more than 13 years. In April 2009, a grand jury indicted them on one

count of conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371, and seven counts

of tax evasion, in violation of 26 U.S.C. § 7201. The Government moved to revoke Dr.

Hopkins’s pretrial release, arguing that he was not making quarterly income tax payments

required by 26 U.S.C. § 6654. At a hearing on the motion, Dr. Hopkins agreed to make

tax payments to an escrow account in the court registry. Between October 2009 and June

2010, he paid approximately $130,000 into the registry.

       In June 2010, Dr. and Ms. Hopkins moved to end the required payments and have

the funds returned. They asserted the payments had “drain[ed] their ability to pay” their

lawyers, “thereby causing them to ultimately lose their constitutionally protected right of

choice of counsel” under the Sixth Amendment. Aplt. App. at 121. The district court

ordered the funds be returned to the Hopkinses. But before the funds’ release, the IRS

served notice of a federal tax lien on the court clerk. The clerk then filed an interpleader

action for clarification as to the proper distribution of the funds. In response, the district

court denied the Hopkinses’ emergency motion to release the funds. Ms. Hopkins’s




                                               3
attorney—who, the Hopkinses claim, “was an integral part of the defense team” for both

of them, Aplt. Reply Br. at 8—withdrew on July 15, 2010.2

   Conviction and Sentence

       A jury convicted the Hopkinses on all counts. The district court sentenced Dr.

Hopkins to 120 months in prison and three years of supervised release. It ordered the

Hopkinses to pay more than $1,700,000 in restitution.3

   Direct Appeal

       The Hopkinses filed a joint appeal, and this court affirmed their convictions and

sentences. See United States v. Hopkins, 509 F. App’x 765, 767 (10th Cir. 2013)

(unpublished). Although only Ms. Hopkins asserted a deprivation of the right to counsel

of choice on appeal, see id. at 770,4 our treatment of that issue on her appeal provides

context for our consideration of Dr. Hopkins’s § 2255 appeal.


       2
         The Government contends that Dr. Hopkins’s counsel of choice represented him
throughout the trial. The district court’s docket indicates that after Dr. Hopkins retained
counsel and his court-appointed attorney withdrew in June 2009, his retained counsel
remained counsel of record throughout the trial. When the district court considered the
§ 2255 motion, it did not consider whether Dr. Hopkins had been deprived of his right to
counsel of choice at trial. Because we conclude Dr. Hopkins’s motion was untimely, we
do not reach this issue.
       3
         Ms. Hopkins was sentenced to 97 months followed by three years of supervised
release. See United States v. Hopkins, 509 F. App’x 765, 770 (10th Cir. 2013)
(unpublished).
       4
         Dr. Hopkins’s only argument on appeal was that the “district court erroneously
applied the offense level enhancement for obstruction of justice pursuant to [United
States Sentencing Guidelines] § 3C1.1.” Hopkins, 509 F. App’x at 780. Because we
affirm the district court’s dismissal of Dr. Hopkins’s § 2255 motion on timeliness

                                             4
       In deciding the right to counsel of choice issue, we relied on Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617 (1989), and United States v. Monsanto, 491

U.S. 600 (1989). In Caplin & Drysdale, the defendant was charged with running a

large-scale drug importation and distribution business. After he pled guilty and was

ordered to forfeit the proceeds of his crimes under 21 U.S.C. § 853(a),5 his attorney

petitioned to collect his legal fees from the forfeited property. Id. at 621. The Supreme

Court held the attorney could not recover fees out of the forfeited funds. Id. at 622. It

explained that title to forfeitable assets vests in the government “at the time of the

criminal act giving rise to forfeiture,” id. at 627, and in light of that vesting, “a defendant

has no Sixth Amendment right to spend another person’s money for services rendered by

an attorney, even if those funds are the only way that that defendant will be able to retain

the attorney of his choice,” id. at 626.




grounds, we do not address any potential ramifications of his failure to raise a Sixth
Amendment argument on direct appeal.
       5
          Title 21 U.S.C. § 853(a) allows for forfeiture of the proceeds of certain drug
offenses. It requires that a defendant convicted of the relevant offenses forfeit (1) “any
property constituting, or derived from, any proceeds the person obtained, directly or
indirectly, as the result of such violation” or (2) “any of the person’s property used, or
intended to be used, in any manner or part, to commit, or to facilitate the commission of,
such violation.” Id. Section 853(c) states that “[a]ll right, title, and interest in property
described in [§ 853(a)] vests in the United States upon the commission of the act giving
rise to forfeiture under this section.” Id. § 853(c).




                                               5
       In Monsanto, decided the same day, the Supreme Court extended Caplin &

Drysdale’s holding to authorize freezing of a defendant’s forfeitable assets before

conviction to prevent dissipation, even when doing so prevents the defendant from

paying counsel. 491 U.S. at 602. The indictment alleged that the defendant had obtained

a house, an apartment, and $35,000 in cash through drug trafficking. Id. The

government obtained an order freezing those assets under 21 U.S.C. § 853(a). Id. at 603.

Pointing to Caplin & Drysdale, the Court held that the order did not violate the

defendant’s right to obtain counsel of choice. It said, “[I]f the Government may,

post-trial, forbid the use of forfeited assets to pay an attorney, then surely no

constitutional violation occurs when, after probable cause is adequately established, the

Government obtains an order barring a defendant from frustrating that end by dissipating

his assets prior to trial.” Id. at 616.

       In the Hopkinses’ appeal, we concluded that these cases foreclosed Ms. Hopkins’s

Sixth Amendment challenge. “[N]either the Fifth nor the Sixth Amendment to the

Constitution requires Congress to permit a defendant to use assets adjudged to be

forfeitable to pay that defendant’s legal fees.” Hopkins, 509 F. App’x at 773 n.6 (quoting

Monsanto, 491 U.S. at 614). Just as the government had rightful possession over the

forfeited property in Caplin & Drysdale, the IRS had been “within its rights to file the

levy [over the registry funds], which limited Sharon Hopkins’s right to the same funds.”

Id. at 773. Accordingly, the district court’s refusal to return the $130,000 to Dr. and Ms.

Hopkins did not violate the Sixth Amendment right to counsel of choice. Id. at 773, 776.

                                               6
       Following this court’s decision, Dr. Hopkins did not seek certiorari from the

United States Supreme Court. His conviction thus became final no later than June 11,

2013. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (explaining that under

§ 2255(f)(1), a criminal conviction becomes final when the Supreme Court affirms the

conviction or denies certiorari, or, if review by the Supreme Court is not sought, when the

time for filing a certiorari petition expires); Sup. Ct. R. 13(1) (2017) (providing that a

certiorari petition is timely if filed within 90 days of entry of judgment).

                                  B. Luis v. United States

       On March 30, 2016, nearly three years after Dr. Hopkins’s conviction became

final, the Supreme Court decided Luis v. United States, 136 S. Ct. 1083 (2016). In that

case, Sila Luis was charged with health care fraud. Id. at 1087. At the government’s

request, and pursuant to 18 U.S.C. § 1345(a)(2), the district court prohibited Ms. Luis

from “dissipating, or otherwise disposing of . . . assets . . . up to the equivalent value of

the proceeds” of the crime. Id. at 1088. The court’s order forbade her from spending not

just the proceeds of the crime, but also innocently-obtained property of the same

value. Id.6 She therefore could not use untainted funds to hire an attorney. Ms. Luis

argued this restriction violated her right to counsel of her choice.




       6
         Section 1345(a)(2) allows for pretrial freezing of property “obtained as a result
of” certain healthcare or banking violations, property “traceable” to the crime, and other
“property of equivalent value.” 18 U.S.C. § 1345(a)(2).

                                               7
       The Supreme Court agreed. Observing that “[t]he Sixth Amendment right to

counsel grants a defendant ‘a fair opportunity to secure counsel of his own choice,’” id.

at 1085 (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)), Justice Breyer said in the

plurality opinion that “the pretrial restraint of legitimate, untainted assets needed to retain

counsel of choice violates the Sixth Amendment.” Id. at 1088.7 It distinguished Caplin

& Drysdale and Monsanto, both of which concerned a defendant’s right to pay counsel

using assets linked to the crime. The plurality explained, “The relevant difference

consists of the fact that the property here is untainted; i.e., it belongs to [Ms. Luis], pure

and simple.” Id. at 1090 (“[B]oth Caplin & Drysdale and Monsanto relied critically upon

the fact that the property at issue was ‘tainted.’”). The difference between tainted and

untainted assets was “the difference between what is yours and what is mine.” Id.

at 1091. The government had a property interest in the defendants’ crime-tainted

forfeitable assets in Caplin & Drysdale and Monsanto. But in Ms. Luis’s case, the

court’s order extended to freezing “untainted” assets that were not tied to her crime. And

even if these assets may have been subject to forfeiture upon her conviction, the

government’s contingent interest in the untainted assets did not outweigh Ms. Luis’s right

to use the assets to obtain counsel of her choice. Id. at 1092.


       7
         Justice Thomas concurred in the court’s judgment because “constitutional rights
necessarily protect the prerequisites for their exercise,” such that “[w]ithout constitutional
protection for at least some of a defendant’s assets, the Government could nullify the
right to counsel of choice.” Luis, 136 S. Ct. at 1096, 1098 (Thomas, J., concurring). He
noted that the Sixth Amendment right to counsel originally encompassed “only the right
to hire counsel of choice.” Id. at 1097.
                                               8
       The Luis decision drew two dissenting opinions. Justice Kennedy, joined by

Justice Alito, called the Court’s holding “unprecedented,” adding that the decision

“ignore[d] this Court’s precedents and distort[ed] the Sixth Amendment right to counsel.”

Id. at 1103 (Kennedy, J., dissenting). He reasoned that Caplin & Drysdale and Monsanto

“make clear that a defendant has no Sixth Amendment right to spend forfeitable assets (or

assets that will be forfeitable) on an attorney.” Id. Those cases involved assets that

“belong[ed] to the defendant,” just like Ms. Luis’s assets, but because there was probable

cause to believe the assets would be forfeited upon conviction, they could be seized or

frozen before trial. Id. at 1106. Accordingly, Justice Kennedy reasoned, the plurality’s

distinction between “tainted” and “untainted” assets lacked support. In a separate dissent,

Justice Kagan expressed doubts about the correctness of Monsanto’s holding, but

concluded that it should control the case. Id. at 1112 (Kagan, J., dissenting).

                          C. District Court § 2255 Proceedings

   Section 2255(f) Statute of Limitations

       Section 2255(f) imposes a one-year statute of limitations on a prisoner filing a

§ 2255 motion. As relevant to this case, the one-year period runs from “the latest of . . .

the date on which the judgment of conviction becomes final,” id. § 2255(f)(1), 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)(3).



                                              9
   Dr. Hopkins’s § 2255 motion

       On March 29, 2017,8 Dr. Hopkins filed a pro se motion to vacate his conviction

under 28 U.S.C. § 2255.9 He argued that the Luis decision was “a substantive change in

the law” that entitled him to file the motion more than one year after his conviction had

become final. Aplt. App. at 387. He contended that the funds he was ordered to pay into

the registry were “innocent assets . . . needed to pay counsel of choice.” Id. at 392.

Under Luis, he said, the district court’s refusal to release the registry funds amounted to

“unconstitutional and impermissible restraint of [his] innocent assets,” in violation of his

Sixth Amendment right to counsel of choice. Id. at 400. The Government did not file a

response and the district court did not order it to do so.




       8
         The Luis decision was handed down on March 30, 2016. Dr. Hopkins’s motion
was filed with the district court on April 6, 2017. Because Dr. Hopkins was a prisoner
and filed his motion pro se, he may rely on the “prison mailbox rule,” which makes the
date on which he presented his motion to prison officials for mailing the filing date for
timeliness purposes. See Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). The
record shows he gave his motion to prison officials on March 29, 2017. He therefore
filed his motion within one year of the Supreme Court’s decision in Luis. See 28 U.S.C.
§ 2255(f)(3).
       9
         Although Dr. and Ms. Hopkins were indicted and tried together, Ms. Hopkins is
not a party to this § 2255 proceeding. Following the Luis decision, Ms. Hopkins filed a
motion to dismiss the indictment, which the district court construed as a § 2255 motion
and dismissed on the same grounds as it dismissed Dr. Hopkins’s motion. See United
States v. Hopkins, No. 2:09-CR-00863 MCA, 2018 WL 550594 at *3 (D.N.M. Jan. 23,
2018). Ms. Hopkins did not appeal that decision.

                                              10
   District Court Ruling

       The district court dismissed Dr. Hopkins’s § 2255 motion as untimely. United

States v. Hopkins, No. 2:09-CR-00863 MCA, 2018 WL 1393780, at *2 (D.N.M. Mar.

19, 2018). It explained that to obtain relief, Dr. Hopkins needed to show the Luis

decision recognized a new right that applies retroactively. Id.

       It is not clear whether the district court dismissed Dr. Hopkins’s motion because

Luis did not recognize a new right or because that right was not retroactively applicable

to Dr. Hopkins’s collateral proceeding. The court’s order contains statements pointing in

both directions. Immediately after setting forth the test for whether a Supreme Court

decision announces a new right, the district court stated that “Luis was based primarily on

the application of two existing cases,” Caplin & Drysdale and Monsanto, suggesting it

did not view the Luis rule as new. Id. But in the following sentence the court stated that

“courts have consistently held that Luis is not retroactively applicable on review.” Id.

The district court also granted a certificate of appealability because this court has not

previously addressed Luis’s retroactivity. Id.

                                     II. DISCUSSION

       The single issue on appeal is whether Dr. Hopkins’s motion was time-barred under

the one-year time limit in 28 U.S.C. § 2255(f). We can resolve this issue by deciding a

pure question of law: whether Luis applies retroactively. Because we conclude it does

not, Dr. Hopkins’s motion is untimely.



                                             11
                                  A. Standard of Review

       “[W]e review the district court’s legal rulings on a § 2255 motion de novo and its

findings of fact for clear error.” United States v. Miller, 868 F.3d 1182, 1186 (10th Cir.

2017) (quotations omitted).

                                       B. Analysis

       A § 2255 motion typically must be filed within one year of “the date on which the

judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). But it may be brought

after that time period if the movant files the motion within one year of “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)(3). Our analysis focuses on the application of

§ 2255(f)(3).

   Timeliness Waiver

       Dr. Hopkins argues that the Government may not challenge the timeliness of his

§ 2255 motion because it did not file a response to the motion in the district court. We

disagree.

       In a § 2255 proceeding, “[t]he respondent is not required to answer the motion

unless a judge so orders.” Rule 5(a), Rules Governing Section 2255 Proceedings in the

U.S. District Courts. Under Rule 5(a), the Government was not required to file a

response to Dr. Hopkins’s motion absent an order from the district court. Because the

district court never ordered a response, the first time the Government was required to

                                            12
address Dr. Hopkins’s arguments was in this appeal. See United States v. Lopez-Aguilar,

912 F.3d 1327, 1329 (10th Cir. 2019). The Government’s failure to raise its timeliness

defense in the district court—where it did not file a response and the court did not order it

to do so—does not preclude it from arguing timeliness on appeal. See id. (“If the district

court did not order the government to respond to the § 2255 motion, the government

could raise the [argument seeking enforcement of the defendant’s appeal waiver] for the

first time in the appeal.”).10




       10
           The parties do not address Rule 5(a). But even as to the argument Dr. Hopkins
makes, the Government did not “intentionally relinquish[]” its timeliness defense in any
filing. Wheeler v. Falk, 556 F. App’x 734, 734 (10th Cir. 2014) (unpublished); see Aplt.
Reply Br. at 13-14. Courts may consider the timeliness of a § 2255 motion sua sponte
unless the government affirmatively waives the issue. Wood v. Milyard, 566 U.S. 463,
473-74 (2012) (holding that the government had waived a timeliness defense by stating to
the district court it “[would] not challenge, but [was] not conceding” the motion’s
timeliness); see also United States v. Mulay, 725 F. App’x 639, 643-44 (10th Cir. 2018)
(unpublished) (holding that the government waived a timeliness objection by failing to
raise it in the district court and stating on appeal that timeliness was “not implicated”).
        As discussed above, when the Government filed its brief in this court, it raised a
timeliness defense. Unlike in Wood and Mulay, the Government never suggested it was
not contesting the timeliness of Dr. Hopkins’s motion. The Government thus has not
“intentionally relinquished” its argument that Dr. Hopkins’s motion was untimely.
Wheeler, 556 F. App’x at 734.
        Although not precedential, we find the reasoning of the unpublished decisions
cited in this opinion to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App.
P. 32.1.



                                             13
   Timeliness of Dr. Hopkins’s § 2255 Motion

       a. Legal background

       To determine whether Dr. Hopkins’s motion was timely under § 2255(f)(3), we

must evaluate whether Luis recognized a new right that is retroactively applicable on

collateral review. When, as in Luis, the Supreme Court has not said whether a right is

new or retroactive, we look for guidance to Teague v. Lane, 489 U.S. 288 (1989).11

       Teague provides guidance on (1) whether a Supreme Court decision recognized a

new right and (2) whether the right is retroactively applicable on collateral review. See

id. at 301, 311. We follow this guidance when evaluating timeliness under § 2255(f)(3).

United States v. Chang Hong, 671 F.3d 1147, 1150-51 (10th Cir. 2011); see United States

v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016) (unpublished) (applying Teague to

evaluate retroactivity under § 2255(f)(3)). We address both considerations below.

              i. Newly recognized rights under § 2255

       As other courts have done, we have used the words “right” and “rule”

interchangeably in discussing whether a Supreme Court decision restarts the one-year

statute of limitations under § 2255(f)(3). See United States v. Greer, 881 F.3d 1241,

1244-45 (10th Cir. 2018); United States v. Snyder, 871 F.3d 1122, 1125-26 (10th Cir.

2017); see also Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017).




       11
        Justice O’Connor wrote Teague’s plurality opinion, which a majority of the
Court adopted in Penry v. Lynaugh, 492 U.S. 302, 313 (1989).

                                            14
       Under Teague, a rule is not “new” if it was “dictated by precedent existing at the

time the defendant’s conviction became final,” 489 U.S. at 301, is “apparent to all

reasonable jurists,” Chaidez v. United States, 568 U.S. 342, 347 (quotations omitted), or

is “merely an application” of an existing right or principle, id. at 348. Conversely, a right

is “newly recognized” for § 2255(f)(3) purposes if it is “not dictated by precedent.”

Greer, 881 F.3d at 1245 (quotations omitted).

       A Supreme Court decision recognizing a right over a dissent is less likely to be

dictated by precedent.12 For example, in Chang Hong, we held that the Supreme Court

announced a new rule in Padilla v. Kentucky, 559 U.S. 356 (2010), when it held that a

criminal defense lawyer must inform a client of the potential deportation consequences of

conviction. Chang Hong, 671 F.3d at 1154-55. We said Padilla recognized a new rule

because (1) “[b]efore Padilla, most state and federal courts had considered the failure to

advise a client of potential collateral consequences of a conviction to be outside the

requirements of the Sixth Amendment”; and (2) Padilla “generated both a strong



       12
          Even a unanimous Supreme Court decision can produce a new rule when the
Court arrives at its decision by choosing among several plausible readings of existing
precedent. In Johnson v. McKune, 288 F.3d 1187 (10th Cir. 2002), we held that
Sandstrom v. Montana, 442 U.S. 510 (1979)—holding a particular jury instruction about
intent was unconstitutional—announced a new rule, even though the decision was
unanimous. McKune, 288 F.3d at 1196-97. We noted that the Sandstrom Court had
rejected a line of precedent the losing party urged, which suggested that the Court’s
ultimate result was not “dictated” by precedent. Id. at 1196. (“The fact that contrary
federal or state precedent exists, while not dispositive, is relevant to our analysis.”).



                                             15
concurrence and dissent,” including an opinion by Justice Alito calling the ruling a

“major upheaval in Sixth Amendment law.” Id. at 1154. Although Padilla had not

overturned any precedent, its holding was new. Id. at 1155; see also Chaidez, 568 U.S.

at 354, 358 (concluding Padilla announced a new rule).

              ii. General bar on retroactivity and exceptions

       “It is generally agreed that both lower federal courts and the Supreme Court can

decide the retroactive applicability of a new rule of constitutional law announced by the

Supreme Court when reviewing an initial petition” under § 2255. Brian R. Means,

Federal Habeas Manual § 9A:30 (2018).13 Under Teague, a new constitutional rule of

criminal law or procedure is not generally applicable retroactively to cases on collateral

review. 489 U.S. at 310. But Teague recognized two exceptions: (1) rules that change

what conduct is punishable under substantive criminal law, and (2) “watershed rules of

criminal procedure.” Id. at 311; accord Means, Federal Habeas Manual § 9A:30 (“A

‘new rule’ is retroactively applicable to cases on collateral review for purposes of

§§ 2244(d)(1)(C) and 2255(f)(3) if either of the two non-retroactivity exceptions

established in [Teague] apply . . . .”).




       13
         The Government appears to argue that Dr. Hopkins’s motion is untimely
because (1) § 2255(f)(3) can provide relief based on a “newly recognized right” only
when another court has previously held the right to be retroactive and (2) no court has
done so as to Luis. See Aplee. Br. at 6 (quoting United States v. Hoon, 762 F.3d 1172,
1173 (10th Cir. 2014)). We do not address this argument. We instead assume without
deciding that we can reach the issue of whether Luis can be applied retroactively to Dr.
Hopkins’s case, and we conclude it cannot.
                                            16
       First, newly recognized substantive rules—those “forbid[ding] criminal

punishment of certain primary conduct” or “prohibit[ing] a certain category of

punishment for a class of defendants because of their status or offense”—are not subject

to the general retroactivity bar. Montgomery v. Louisiana, 136 S. Ct. 718, 732

(2016) (quotations omitted). A rule is “substantive rather than procedural if it alters the

range of conduct or the class of persons that the law punishes.” Welch v. United States,

136 S. Ct. 1257, 1264-65 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348, 353

(2004)); see also Williams v. United States, 91 S. Ct. 1171, 1180 (1971) (Harlan, J.,

concurring) (explaining that substantive rules “place . . . certain kinds of primary, private

individual conduct beyond the power of the criminal law-making authority”).

       For example, in Welch, the Supreme Court stated that its decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), which held the residual clause of the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is void for vagueness, applies

retroactively. Welch, 136 S. Ct. at 1268. The Welch Court explained that “the rule

announced in Johnson is substantive. By striking down the residual clause as void for

vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act,

altering ‘the range of conduct or the class of persons that the [Act] punishes.’” Id. at

1265 (quoting Schriro, 542 U.S. at 353).14


       14
            The Court elaborated on the substantive impact of Johnson:
                Before Johnson, the Act applied to any person who possessed
                a firearm after three violent felony convictions, even if one or

                                               17
       Second, “watershed rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding” are not subject to the general rule

against retroactivity. Beard v. Banks, 542 U.S. 406, 417 (2004) (quotations omitted). To

qualify as watershed, the rule must (1) be “necessary to prevent an impermissibly large

risk of an inaccurate conviction” and (2) “alter our understanding of the bedrock

procedural elements essential to the fairness of a proceeding.” Whorton v. Bockting, 549

U.S. 406, 418 (2007) (quotations omitted).

       Since Teague, the Supreme Court has never identified a rule that meets this

description. See Beard, 542 U.S. at 417 (“[W]e have yet to find a new rule that falls

under the second Teague exception.”). It has repeatedly referred to its decision in Gideon

v. Wainwright, 372 U.S. 335 (1963)15—recognizing an indigent defendant’s right to

appointed counsel in felony cases—as the only rule that might have fallen within the

second Teague exception, if it had been decided after Teague.16 See Whorton, 549 U.S.



             more of those convictions fell under only the residual clause.
             An offender in that situation faced 15 years to life in prison.
             After Johnson, the same person engaging in the same conduct
             is no longer subject to the Act and faces at most 10 years in
             prison.
Welch, 136 S. Ct. at 1265.
       15
         “[I]n our adversary system of criminal justice, any person haled into court, who
is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him.” Gideon, 372 U.S. at 344.
       16
      In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court said the Sixth
Amendment right to counsel requires federal courts to appoint lawyers for indigent

                                             18
at 419. The Court has explained that this exception is “meant to apply only to a small

core of rules requiring observance of those procedures that . . . are implicit in the concept

of ordered liberty,” Beard, 542 U.S. at 417, and has “not hesitated to hold that less

sweeping and fundamental rules [than Gideon] do not fall within Teague’s second

exception,” id. at 418. For instance, in Beard, the Supreme Court ruled that its decision

in Mills v. Maryland, 486 U.S. 367 (1988), which invalidated capital sentencing schemes

that required juries to disregard mitigating factors that are not found unanimously, was

not a “watershed rule.” Beard, 542 U.S. at 420. The Court explained, “However

laudable the Mills rule might be, it has none of the primacy and centrality of the rule

adopted in Gideon.” Id. (quotations omitted).

       Very few cases discuss the retroactivity of Supreme Court decisions extending the

Sixth Amendment right to counsel of choice, and we have not found a case holding that

any such decision was retroactively applicable. The Seventh Circuit has even held that




defendants in felony cases. Id. at 462-63; see Alabama v. Shelton, 535 U.S. 654, 661
(2002). Gideon made “it unconstitutional to try a person for a felony in a state court
unless he had a lawyer or had validly waived one.” Burgett v. Texas, 389 U.S. 109,
114 (1967). In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court held that the Sixth
and the Fourteenth Amendments require states to provide appointed counsel to
defendants who face a sentence of incarceration for any crime. Id. at 40. Before Teague
was decided, the right to counsel at trial, Gideon, on appeal, Douglas v. California, 372
U.S. 353 (1963), and at other critical stages of criminal proceedings were made
retroactive. See Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968); Stovall v. Denno, 388
U.S. 293, 297 (1967).



                                             19
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), which established that a

deprivation of the right to counsel of choice constitutes structural error, is not a watershed

rule. Rodriguez v. Chandler, 492 F.3d 863, 866 (7th Cir. 2007).

       b. Luis recognized a new right that is not retroactively applicable

       Dr. Hopkins filed his § 2255 motion more than one year after his conviction

became final. His motion would be timed-barred under § 2255(f)(1) unless he could

show under § 2255(f)(3) that the right recognized in Luis is new and retroactive. We

conclude that Luis recognized a new right. But because we also conclude that Luis is

neither a Teague substantive rule nor a “watershed rule[] of criminal procedure,” Beard,

542 U.S. at 417, that warrants retroactive application, we hold his motion does not satisfy

the requirements of § 2255(f)(3) and was thus untimely.

              i. Luis recognized a new right

       We disagree with the district court’s apparent ruling that Luis did not recognize a

new right for § 2255(f)(3) purposes. See Hopkins, 2018 WL 1393780, at *2. The

holding in Luis was not “dictated by precedent existing at the time [Dr. Hopkins’s]

conviction became final.” Teague, 489 U.S. at 301. Luis’s rule that the Sixth

Amendment prevents the government from pretrial freezing or seizing of untainted assets

to prevent their dissipation was not “apparent to all reasonable jurists” in 2010. Chaidez,




                                             20
568 U.S. at 347 (quotations omitted).17 The pre-Luis cases—Caplin & Drysdale and

Monsanto—authorized the government to seize or freeze assets before trial upon

probable cause that the assets would be subject to post-conviction forfeiture, even if

doing so prevented the defendant from paying an attorney. As discussed above, Justice

Breyer’s plurality opinion explicitly distinguished Caplin & Drysdale and Monsanto. It

explained, “[T]he nature of the assets at issue here differs from the assets at issue in those

earlier cases. And that distinction makes a difference.” Luis, 136 S. Ct. at 1085. Neither

Caplin & Drysdale nor Monsanto had specified that only “tainted” assets could be

seized.18

       The dissenting Justices’ statements in Luis support that the Court established a

new rule. Justice Kennedy referred to the plurality’s ruling that untainted assets could

not be frozen as “unprecedented,” stating that it “ignore[d] . . . precedent[].” Luis,

136 S. Ct. at 1103 (Kennedy, J., dissenting). And Justice Kagan believed Monsanto


       17
           On direct appeal, this court also did not anticipate Luis’s conclusion that Caplin
& Drysdale and Monsanto would not apply to the Hopkinses’ escrowed funds. We said
that, just as the government in those cases had an interest in “obtaining full recovery of
all forfeitable assets,” the IRS had a “longstanding, strong interest in collecting
delinquent taxes and securing its interests in delinquent taxpayer’s property through liens
and levies.” Hopkins, 509 F. App’x at 773.
       18
         Title 21 U.S.C. § 853, the forfeiture statute at issue in Caplin & Drysdale and
Monsanto, authorizes forfeiture of untainted assets. It “permits the Government to
confiscate property untainted by the crime” as “substitute property” when property tied to
the crime is unreachable for a variety of reasons. Honeycutt v. United States, 137 S. Ct.
1626, 1633-34 (2017).


                                             21
controlled. Id. at 1112 (Kagan, J., dissenting). Thus, at least some “reasonable jurists,”

Chaidez, 568 U.S. at 347, could have concluded that Caplin & Drysdale and Monsanto

did not “dictate[]” the rule in Luis. Teague, 489 U.S. 301. Accordingly, Luis recognized

a new right that can support a late-filed § 2255 motion if it is retroactive.19

              ii. Luis is not retroactive on collateral review

       The Supreme Court has not stated that the rule it announced in Luis would apply

retroactively to cases on collateral review. As a result, the Luis rule can satisfy

§ 2255(f)(3) and render Dr. Hopkins’s motion timely only if it qualifies for one of

Teague’s two exceptions to the retroactivity bar. Because Luis does not qualify for either

exception, Dr. Hopkins’s motion was untimely under § 2255(f)(3).

                      1) Change in substantive law

       As Dr. Hopkins appears to acknowledge,20 Teague’s first exception does not

apply. Luis addressed whether the government could freeze or seize certain assets



       19
          Dr. Hopkins’s position on whether Luis stated a new rule appeared to shift from
his briefing to oral argument. In his brief, he contends that Luis “applied a well-
established constitutional principle to govern a case which is closely analogous to those
which have been previously considered in the prior case law.” Aplt. Br. at 8. In the
alternative, he argues that Luis qualifies for retroactivity under both of the Teague
exceptions. See id. at 15-18. At oral argument, counsel for Dr. Hopkins advanced only
the alternative argument, contending that Luis recognized a new right that qualifies for
retroactive applicability as a watershed rule of criminal procedure. When asked, “You’re
saying it was a new rule?,” counsel responded, “Yes, Your Honor. I think it’s a new
rule.” Oral Arg. at 6:02-6:08.
       20
         Dr. Hopkins’s counsel stated at oral argument that the § 2255 motion is timely
only if Luis qualifies for Teague’s second exception:

                                              22
depending on whether those assets were tainted or untainted by the defendant’s crime. It

did not exempt any conduct from criminal punishment or spare any defendants from

punishment because of their status or the nature of their offense. See Montgomery, 136

S. Ct. at 732. Rather than “plac[ing] . . . certain kinds of primary, private individual

conduct beyond the power of the criminal law-making authority,” Williams, 91 S. Ct. at

1180, Luis addressed a governmental function—freezing or seizing assets. Accordingly,

Luis cannot be eligible for retroactivity under Teague’s first exception.

                     2) Watershed procedural rule

       Luis also does not qualify for Teague’s second exception because it did not

announce a watershed rule of criminal procedure. As discussed above, the Supreme

Court has not held a new rule of criminal procedure to be retroactive since Teague and

has repeatedly stated that Gideon is the only such rule that would qualify. And we have

found no lower federal court case holding that a new Supreme Court rule on the right to

counsel of choice should apply retroactively on collateral review.




              The Court: I take it that you have to rely on a Teague
              exception to survive on this appeal.
              Counsel: I do.
              The Court: And so, your case . . . rises or falls on the
              watershed procedural rule.
              Counsel: It rises or falls on that. I absolutely believe that.
Oral Arg. at 15:10-15:28.



                                             23
       Dr. Hopkins argues that Luis fashioned a watershed rule because, like the Gideon

right to counsel, the right to use untainted assets to pay for counsel of choice “affect[s]

the determination of a defendant’s guilt.” Aplt. Reply Br. at 19. This is so because “the

inability to present a desired defense by counsel of choice does increase the likelihood of

inaccurate convictions and fundamental procedural fairness.” Id. Although this

argument is not without merit, it does not meet Teague’s high bar for a watershed rule.

       The right to counsel of choice and the Gideon right to court-appointed counsel are

distinct rights guaranteed under the Sixth Amendment. The right to counsel of choice

concerns the ability to select a particular lawyer and “does not extend to defendants who

require counsel to be appointed for them.” Gonzalez-Lopez, 548 U.S. at 151; see also

Caplin & Drysdale, 491 U.S. at 624 (“The Sixth Amendment guarantees a defendant the

right to be represented by an otherwise qualified attorney whom that defendant can afford

to hire.”).

       Deprivation of the right to counsel of choice can be a structural error that

“affec[ts] the framework within which the trial proceeds,” Gonzalez-Lopez, 548 U.S. at

148, not because of its impact on the accuracy of the trial but because it “protects an

interest in [the defendant’s] autonomy,” Rodriguez, 492 F.3d at 866; see also United

States v. Gordon, 710 F.3d 1124, 1135 (10th Cir. 2013) (explaining that the right to

counsel of choice “stems from a defendant’s right to decide what kind of defense he

wishes to present” (quotations omitted)). It therefore does not follow that an extension of

the right to counsel of choice satisfies the second Teague exception. Tyler v. Cain, 533

                                             24
U.S. 656, 666 n.7 (2001) (“Classifying an error as structural does not necessarily alter our

understanding of . . . bedrock procedural elements.”).

       The new right recognized in Luis does not meet the Whorton criteria for a

watershed rule. Dr. Hopkins has not shown that extending pretrial protection to untainted

assets so that he can pay counsel of choice is “necessary to prevent an impermissibly

large risk of an inaccurate conviction.” Whorton, 549 U.S. at 418 (quotations omitted).

Even without a right to the registry funds, he continued to have the right to appointed

counsel and effective assistance of counsel under the Sixth Amendment. Nor has he

shown that the Luis rule “alter[s] our understanding of the bedrock procedural elements

essential to the fairness of a proceeding.” Id. Even a “showing that a new procedural

rule is based on a ‘bedrock’ right” is insufficient because “a new rule must itself

constitute a previously unrecognized bedrock procedural element that is essential to the

fairness of a proceeding.” Id. at 420-21.

       We are not asked to decide whether the right to counsel of choice is itself a

watershed procedural rule, but rather whether Luis’s extension of that right qualifies as a

watershed rule. Luis’s new application protecting the right to use untainted, forfeitable

assets to pay for counsel of choice is not an extension of the core right to appointed

counsel recognized in Gideon. Before Luis, defendants who could not pay counsel of

their choice because their untainted assets were seized or frozen were not left without

legal representation. They could instead hire a less expensive lawyer or rely on

appointed counsel. After Luis, they may pay counsel of their choice. Because the right

                                             25
to counsel of choice is not the same as the right to have counsel at all, and because Luis’s

protection of the right to use untainted assets to hire counsel of choice is not an extension

of the Gideon right, Luis is not sufficient to meet Teague’s second exception. In short,

Luis is not Gideon, and Luis does not extend Gideon. See Chang Hong, 671 F.3d at

1158.21

                                   III. CONCLUSION

       The new right recognized in Luis is not retroactively applicable because (1) it did

not change what conduct is punishable under substantive criminal law and (2) it is not a

watershed procedural rule. As a result, Dr. Hopkins cannot rely on Luis to satisfy the

timeliness requirements of § 2255(f)(3). His § 2255 motion was properly dismissed as

untimely. We affirm the district court’s judgment.




       21
          In the Gideon right-to-counsel context, the Eleventh Circuit has allowed for
retroactive application of a new rule that extends the Gideon right to counsel on the
theory that such rules are inseparable from the “bedrock procedural element” of Gideon.
Howard v. United States, 374 F.3d 1068, 1080-81 (11th Cir. 2004). Luis would not
qualify for such treatment. Luis did not extend the right to counsel to a context in which
the Gideon right was not previously available. In cases like Luis and this one, defendants
already have the right to appointed counsel if they cannot afford to hire a lawyer. The
question in Luis was whether the defendant had the right to use untainted assets to pay for
counsel of choice.
                                             26
