                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 8, 2013
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                               No. 12-1004
 CHRISTOPHER HOLYFIELD,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. Nos. 1:08-CV-02039-MSK and
                    1:00-CR-00439-MSK-MEH-4)


Christopher Holyfield, Florence, Colorado, on the brief, Pro Se Defendant-
Appellant.

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the brief), Denver, Colorado, for Defendant-
Appellant.

May E. Kim, Assistant United States Attorney (John F. Walsh, United States
Attorney, and Patricia Davies, Assistant United States Attorney, on the brief),
Denver, Colorado, for Plaintiff-Appellee.


Before O’BRIEN, MURPHY, and TYMKOVICH, Circuit Judges.


MURPHY, Circuit Judge.
I. Introduction

      Christopher Holyfield appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion for relief from judgment. In his § 2255 motion, Holyfield asserted

his counsel was constitutionally ineffective for failing to challenge on appeal the

district court’s use of a 1998 California conviction to sentence him to life

imprisonment under the provisions of 21 U.S.C. § 841(b)(1)(A). In particular,

Holyfield contended his attorney should have argued his 1998 conviction was not

final at the time Holyfield committed the instant violation of § 841(a)(1). The

district court did not err in denying Holyfield’s motion for collateral relief. When

Holyfield violated § 841, the 1998 conviction was no longer subject to

examination on direct appeal. United States v. Short, 947 F.2d 1445, 1460 (10th

Cir. 1991). Thus, Holyfield committed a violation of § 841 after his 1998

conviction became final. Id. Exercising jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253 1 this court affirms.

II. Background

      On December 15, 2002, a jury convicted Holyfield of conspiracy to

distribute over fifty grams of crack cocaine and over five kilograms of powder

cocaine, a violation of § 841(a)(1). The district court sentenced Holyfield to life


      1
       On May 21, 2012, this court granted Holyfield a certificate of appealability
“to address whether Holyfield committed a violation of § 841 before or after his
1998 conviction became final.”


                                         -2-
in prison, the mandatory minimum sentence applicable when a defendant has two

or more prior felony convictions that were final as of the time a defendant

violates § 841. 21 U.S.C. § 841(b)(1)(A). Holyfield’s prior convictions included

an August 1993 California conviction for transporting cocaine and a July 1998

California conviction for possession of marijuana for sale. Holyfield appealed his

sentence and this court affirmed. United States v. Holyfield, 481 F.3d 1260, 1263

(10th Cir. 2007). Holyfield’s request for a writ of certiorari from the Supreme

Court was subsequently denied. Holyfield v. United States, 552 U.S. 952, 952

(2007).

      Holyfield thereafter filed a timely pro se motion under 28 U.S.C. § 2255,

requesting that the district court vacate his sentence and resentence him without

consideration of § 841(b)(1)(A)’s mandatory minimum. He argued, inter alia,

that his 1993 California conviction was a misdemeanor conviction, not a felony,

and that his 1998 California conviction was not final at the time he violated

§ 841. Thus, according to Holyfield, he lacked the necessary prior convictions

for § 841(b)(1)(A)’s mandatory minimum to apply. Furthermore, Holyfield

asserted his failure to raise this issue on appeal was excused by appellate

counsel’s ineffective assistance. See Ellis v. Hargett, 302 F.3d 1182, 1186-87

(10th Cir. 2002).

      The district court concluded Holyfield’s arguments were without merit and

denied his § 2255 motion. With respect to Holyfield’s 1998 California conviction

                                         -3-
specifically, the district court relied on Short, concluding Short stood for the

proposition that a felony conviction is final for purposes of § 841(b)(1)(A) when

the conviction is no longer subject to examination on direct appeal.2

III. Analysis

      Section § 841(b)(1)(A) provides that “[i]f any person commits a violation

of [§ 841] after two or more prior convictions for a felony drug offense have

become final, such person shall be sentenced to a mandatory term of life

imprisonment without release.” (emphasis added). Whether a conviction is final

under § 841(b)(1)(A) is a question of federal law, Short, 947 F.2d at 1460,

reviewed de novo. United States v. Beckstrom, 647 F.3d 1012, 1017 (10th Cir.

2011). Like the district court, we review the merits of this issue in order to

resolve Holyfield’s claim of ineffective assistance. Ellis, 302 F.3d at 1186.

      In Short, this court held “a sentence is final for purposes of § 841 when the

conviction is no longer subject to examination on direct appeal, or when reduction

to a misdemeanor through the revocation of probation is no longer possible.” 947

F.2d at 1460 (citation omitted). While this court’s decision in Short is not a

model of clarity, it is clear the conviction at issue in Short was final because it

was no longer subject to examination on direct appeal. Id.



      2
        This court previously denied Holyfield’s request for a certificate of
appealability with respect to whether his 1993 California conviction constituted a
prior felony conviction under § 841.

                                          -4-
      Short was arrested in August 1989 for a federal drug offense in violation of

§ 841. Id. at 1447. In June 1988, he had pleaded guilty “to possession of

cocaine, a third-degree felony under Utah law.” Id. at 1459. The government

argued Short committed the § 841 violation after his Utah conviction became final

and, therefore, the mandatory minimum sentence under § 841(b)(1)(A) applied.

Id.

      This court noted that “the Utah law under which [Short] pleaded guilty

provide[d] a felony conviction is converted to a misdemeanor if a defendant

successfully completes probation.” Id. This court acknowledged Short was still

on probation for the Utah conviction when he was arrested for the § 841 violation.

Id. His probation was not revoked until he was convicted of the § 841 violation.

Id. Thus, it was only when Short was convicted of the § 841 violation that “his

Utah felony was no longer capable of being converted into a misdemeanor.” Id.

at 1460.

      This court also noted that under the Utah Rules of Criminal Procedure, “‘all

appeals in criminal cases shall be taken within 30 days after the entry of the

judgment appealed from.’” Id. at 1460 n.9 (quoting Utah R. Crim. P. 26(4)(a))

(alteration omitted). This court determined that because Short’s time for

appealing his Utah felony conviction expired before he committed the § 841

violation, his “Utah felony conviction was final.” Id. at 1460 & n.9. In other

words, Short’s prior conviction became final before he committed the § 841

                                         -5-
violation because the prior conviction was “no longer subject to examination on

direct appeal” by the time the § 841 violation occurred. See id. at 1460. 3

      The conspiracy that gave rise to Holyfield’s conviction under § 841 ran

from October 1996 through September 2000. The prior felony conviction at issue

occurred in July 1998, when Holyfield pleaded guilty to illegal marijuana

possession in California state court. The California court suspended imposition

of Holyfield’s sentence and placed him on probation. Pursuant to the terms of

that probation, there was a possibility Holyfield’s felony conviction would be

reduced to a misdemeanor at some point during his probation. Cal. Penal Code

§ 1203.3(b)(1)(B). Like in Short, Holyfield was still on probation in connection

with his 1998 California conviction when he committed the instant violation of

§ 841. Also like in Short, his probation was revoked by the time he was

      3
        Other circuits have stated an identical rule in cases involving deferred
action. See, e.g., United States v. Maxon, 339 F.3d 656, 658-59 (8th Cir. 2003)
(holding a prior North Dakota conviction was final before the defendant
committed a violation of § 841, even though the prior conviction was not yet final
under North Dakota law, because the time for direct appeal of the prior conviction
had passed when the defendant committed the federal offense); United States v.
Vasquez, 298 F.3d 354, 358-59 (5th Cir. 2002) (holding a prior conviction was
final for purposes of § 841(b)(1)(A) because the time for seeking direct appellate
review had elapsed); United States v. Meraz, 998 F.2d 182, 184 (3d Cir. 1993)
(holding a prior New Mexico conviction was final under § 841(b)(1)(A) because
it was no longer subject to attack on direct appeal); United States v. Campbell,
980 F.2d 245, 249-50 (4th Cir. 1992) (holding a sentence of probation, although
not a final order of conviction under state law, was final for purposes of
§ 841(b)(1)(A)). Because the facts of this case do not implicate the issue, this
court offers no opinion as to whether a prior felony conviction that has been
reduced to a misdemeanor before the violation of § 841 occurs is considered a
“prior conviction[] for a felony” for purposes of § 841(b)(1)(A).

                                         -6-
convicted of the instant violation of § 841. 4 Furthermore, the time for appealing

Holyfield’s 1998 conviction had passed by the time he committed the violation of

§ 841.

         The California state court’s act of placing Holyfield on probation and

suspending imposition of his sentence is deemed a final judgment for purposes of

appeal. Cal. Penal Code § 1237 (providing that an order granting probation “shall

be deemed to be a final judgment” for purposes of appeal); id. § 1203 (“As used

in this code, ‘probation’ means the suspension of the imposition or execution of a

sentence and the order of conditional and revocable release in the community

. . . .”); People v. Mower, 49 P.3d 1067, 1072 n.3 (Cal. 2002) (“What we treat as

the trial court’s judgment was an order suspending imposition of sentence and

placing defendant on probation. Such an order is deemed a judgment for the

limited purpose of appeal.”). Under California law, a defendant’s failure to

timely appeal the order granting probation precludes him from later appealing

issues related to the underlying conviction. People v. Howard, 48 Cal Rptr. 443,

444 (Cal. Dist. Ct. App. 1965) (“Since no appeal was taken within the allowable

time from this order [of probation], appellant is now precluded from going behind

the order granting probation.”); see also People v. Glaser, 48 Cal. Rptr. 427, 429-

30 (Cal. Dist. Ct. App. 1965) (holding that “matters arising prior to


         4
       On January 3, 2001, the California state court ordered Holyfield’s
probation revoked.

                                          -7-
pronouncement of judgment” must be reviewed during the time for appeal from

the order granting probation and cannot be reviewed on a later appeal),

disapproved on other grounds in People v. Barnum, 64 P.3d 788, 793-94 (Cal.

2003). Rule 8.308 of the California Rules of the Court requires that notice of a

criminal appeal be filed within 60 days “after the rendition of the judgment or the

making of the order being appealed.” 5 Thus, as the district court concluded,

Holyfield had until September 13, 1998, to appeal his 1998 conviction. Holyfield

does not argue he timely appealed his conviction. Because the time for appealing

his 1998 conviction had passed, the 1998 conviction was no longer subject to

direct examination on appeal when the conspiracy that gave rise to Holyfield’s

conviction under § 841 ended. 6 Thus, Holyfield committed a violation of § 841

after his 1998 conviction became final.

      IV. Conclusion

      Because Short is factually indistinguishable in all relevant respects from

this case, it forecloses Holyfield’s argument his 1988 conviction was not final at




      5
        At the time Holyfield was convicted in 1998, the sixty-day time limit for
filing a notice of appeal was found in Rule 31(d). The rule was renumbered
effective January 1, 2007. The parties do not dispute the Rule’s sixty-day
provision governed.
      6
       The district court concluded Holyfield’s 1998 conviction was properly
counted as a prior felony drug offense even though it became final during the
course of the conspiracy charged in his federal case. Holyfield does not appeal
that conclusion.

                                          -8-
the time he committed the § 841 violation. 7 This court therefore affirms the

district court’s denial of Holyfield’s motion for relief under 28 U.S.C. § 2255.




      7
        See FDIC v. Jennings, 816 F.2d 1488, 1492 (10th Cir. 1987) (defining
stare decisis as including “precedent in which a court has decided identical factual
issues”); accord Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 969-70 (3d Cir.
1979) (“The essence of the common law doctrine of precedent or [s]tare decisis is
that the rule of the case creates a binding legal precept. . . . A judicial precedent
attaches a specific legal consequence to a detailed set of facts in an adjudged case
or judicial decision, which is then considered as furnishing the rule for the
determination of a subsequent case involving identical or similar material facts
and arising in the same court or a lower court in the judicial hierarchy.”),
overruled on other grounds by Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 615-20
(1991).

                                         -9-
