                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS April 19, 2019
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 18-1242
                                               (D.C. Nos. 1:16-CV-01583-MSK
 WALLACE RAYMOND CROOKS,                         and 1:00-CR-00439-MSK-6)
                                                          (D. Colo.)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MATHESON, McKAY, and BACHARACH, Circuit Judges.



      Appellant Wallace Raymond Crooks seeks a certificate of appealability to

appeal the district court’s dismissal of his 28 U.S.C. § 2255 habeas motion as

untimely.

      In 2002, Appellant was convicted of conspiracy to possess with intent to

distribute cocaine base. He was sentenced to 360 months of imprisonment based

in part on two prior state court convictions that qualified as “crimes of violence”



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
under Section 4B1.2(a) of the then-mandatory Sentencing Guidelines. This

section defined a “crime of violence” in part to include any felony that “involves

conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a)(2) (2001).

      In 2015, the Supreme Court struck down as unconstitutionally vague an

identical definition in the Armed Career Criminal Act. Johnson v. United States,

135 S. Ct. 2551 (2015). Within a year of that decision, Appellant filed a motion

under § 2255 in which he argued that his sentence was thus unconstitutional under

Johnson because he, like the defendant in Johnson, had been sentenced based on

this unconstitutionally vague definition.

      The district court dismissed his § 2255 motion as untimely under 28 U.S.C.

§ 2255(f) because it had not been brought within one year after his conviction

became final. Although Appellant argued that his motion was timely under

§ 2255(f)(3) because it had been brought within one year of “the date on which

the right asserted was initially recognized by the Supreme Court,” the district

court found this argument foreclosed by this circuit’s decision in United States v.

Greer, 881 F.3d 1241 (10th Cir. 2018). In Greer, we held that “the only right

recognized by the Supreme Court in Johnson was a defendant’s right not to have

his sentence increased under the residual clause of the ACCA,” and thus a

defendant challenging the identical definition in U.S.S.G. § 4B1.2—or any other


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similar or identical provision—could not rely on Johnson to make his claim

timely because “he was not sentenced under any clause of the ACCA,” but was

“attempting to apply the reasoning of Johnson in a different context not

considered by the Court.” Id. at 1248. “The Court did not consider in Johnson,

and has still not decided, whether the mandatory Guidelines can be challenged for

vagueness in the first instance, let alone whether such a challenge would prevail.

And it is not for this court acting on collateral review to do so.” Id. In United

States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir. 2019), we affirmed the

continued validity of “Greer’s holding[] that Johnson does not create a new rule

of constitutional law applicable to the mandatory Guidelines.”

      The district court acknowledged that Greer’s reasoning presents a problem

for defendants, like Appellant, who were sentenced under the mandatory

Guidelines regime. Under Greer, each statute or Guideline provision that uses the

language found unconstitutional in Johnson must be separately challenged by a

defendant who has recently been convicted or sentenced under this specific statute

or provision, since a timely attempt to extend Johnson’s reasoning to another

context can only be raised by someone whose judgment of conviction has been

final for less than one year. However, no defendants have been sentenced under

the mandatory Guidelines since 2005, when the Supreme Court decided United

States v. Booker, 543 U.S. 220 (2005). As all pre-Booker defendants have


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presumably already “exhausted their direct appeals and timely § 2255

petitions[,] . . . there is no conceivable vehicle by which a pre-Booker defendant

will be able to get the question of the constitutionality of § 4B1.2 in a mandatory-

Guidelines scheme before the Supreme Court.” (R. at 150–51 n.1.) And, in turn,

there is “no conceivable way for defendants like Mr. Crooks to be able to bring a

timely Johnson-type challenge to their sentences.” (R. at 151 n.1.) However, the

district court concluded, “To the extent that this situation creates unfair

disparities between pre-Booker defendants and others who may someday be able

to seek Johnson-type relief, this Court is unable to resolve the problem,” and “[t]o

the extent the rule in Greer yields unjust results, it is the 10th Circuit, not this

Court, that must address it.” (Id.) The district court thus dismissed Appellant’s

§ 2255 motion as untimely based on Greer.

      Appellant seeks a certificate of appealability to challenge this decision.

Although he acknowledges that this panel is likewise bound by Greer, he raises

his timeliness argument in order to preserve it for further review.

      We first consider whether Appellant is entitled to a certificate of

appealability. When a district court has denied a habeas petition on procedural

grounds without reaching the underlying constitutional claim, “a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional


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right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

      In considering whether reasonable jurists could debate the correctness of

the district court’s procedural dismissal of Appellant’s § 2255 motion as

untimely, we are mindful of the Supreme Court’s holding that “a COA does not

require a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.

322, 337 (2003). Rather, Appellant need only show that the “procedural ruling

barring relief is . . . debatable among jurists of reason,” Buck v. Davis, 137 S. Ct.

759, 777 (2017), and this standard can be satisfied even if “every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail,” id. at 774 (quoting Miller-El, 537

U.S. at 338).

      In Greer, this circuit ruled that a defendant in Appellant’s position cannot

rely on Johnson to render his challenge to U.S.S.G. § 4B1.2(a)(2) timely.

However, another circuit has reached a contrary decision on this issue. In Cross

v. United States, 892 F.3d 288, 293 (7th Cir. 2018), the Seventh Circuit rejected

the government’s argument “that Johnson recognized the invalidity of the residual

clause only vis-à-vis the ACCA.” The court held that this approach “suffers from

a fundamental flaw”: “It improperly reads a merits analysis into the limitations


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period.” Id.

      Section 2255(f)(3) runs from “the date on which the right asserted
      was initially recognized by the Supreme Court.” 28 U.S.C.
      § 2255(f)(3) (emphasis added). It does not say that the movant must
      ultimately prove that the right applies to his situation; he need only
      claim the benefit of a right that the Supreme Court has recently
      recognized. An alternative reading would require that we take the
      disfavored step of reading “asserted” out of the statute.

Id. at 293–94. The Seventh Circuit then held that the appellants in that

case—prisoners who had been sentenced based on the crime-of-violence

definition contained in Section 4B1.2 of the then-mandatory Guidelines—had

“asserted” a right recently recognized by the Supreme Court in Johnson: “[t]he

right not to be sentenced under a rule of law using this vague language.” Id.

at 294.

      The Seventh Circuit’s opinion demonstrates that reasonable jurists could

debate the merits of the procedural ruling that barred relief in this case. See

Lambright v. Stewart, 220 F.3d 1022, 1027–28 (9th Cir. 2000) (“[T]he fact that

another circuit opposes our view satisfies the standard for obtaining a COA.”);

Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006) (“Even if a question is well

settled in our circuit, [the issue] is debatable if another circuit has issued a

conflicting ruling.”); Wilson v. Sec’y Pa. Dep’t of Corr., 782 F.3d 110, 115 (3d

Cir. 2015) (holding that a conflicting decision from the Sixth Circuit

“demonstrates that the issue [the petitioner] presents is debatable among jurists of


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reason” (internal quotation marks omitted)). We thus hold that Appellant has

satisfied this prong of the Slack analysis.

      To obtain a COA, Appellant must also show that reasonable jurists could

debate the merits of his constitutional claim for relief. See Slack, 529 U.S. at

484. However, because the district court denied his § 2255 motion on procedural

grounds, “we will not delve into the merits of the claim, but instead will

determine only whether the petition has facially alleged the denial of a

constitutional right,” Fleming v. Evans, 481 F.3d 1249, 1259 (10th Cir. 2007)

(internal quotation marks omitted), by taking a “quick look at the face of the

complaint,” Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000) (internal

quotation marks omitted). Our “quick look at the face of the complaint” in this

case satisfies us that Appellant facially alleged the denial of a constitutional right.

Id. Appellant has therefore satisfied this prong of the Slack analysis as well.

      We accordingly GRANT Appellant’s request for a certificate of

appealability. We then AFFIRM the district court’s dismissal of Appellant’s

§ 2255 motion as untimely based on our precedential decisions in Greer and

Pullen.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge

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