                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       November 30, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-3126
                                                 (D.C. Nos. 2:16-CV-02437-CM &
NORMAN SHAW, JR.,                                     2:05-CR-20073-CM-1)
                                                             (D. Kan.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Norman Shaw, Jr., seeks a certificate of appealability (COA) to appeal the

district court’s order dismissing as untimely his motion seeking relief under

28 U.S.C. § 2255. We deny a COA and dismiss the appeal.

I.    Background

      Mr. Shaw pleaded guilty in 2006 to entering a bank with intent to rob it and to

bank robbery, both in violation of 18 U.S.C. § 2113(a). The district court sentenced

him to 165 months’ imprisonment. It based his sentence, in part, on a finding that he

qualified as a career offender under the advisory Sentencing Guidelines because he

had at least two prior felony convictions for crimes of violence. See U.S. Sentencing

      *
         This order is not binding precedent except under the doctrines of law of the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.
Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2005) (USSG). Mr. Shaw

did not appeal, but he filed a first § 2255 motion in 2007. The district court denied

§ 2255 relief, and we denied a COA and dismissed his appeal.

      In 2016, we granted Mr. Shaw authorization to file a second § 2255 motion to

assert a claim for relief based on Johnson v. United States, 135 S. Ct. 2551 (2015).

Johnson voided, in part, the definition of a qualifying “violent felony” used for

sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at 2563.

The Supreme Court held that the “residual clause” in the definition—covering crimes

“involv[ing] conduct that presents a serious potential risk of physical injury to

another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition

against vague criminal laws. Johnson, 135 S. Ct. at 2557, 2563. It held that an

increased sentence based on the ACCA’s residual clause therefore violates a

defendant’s right to due process. Id. In Welch v. United States, 136 S. Ct. 1257,

1268 (2016), the Court made Johnson’s holding retroactive to cases on collateral

review.

      We granted Mr. Shaw authorization to challenge his career-offender sentence

in a second § 2255 motion because this court had extended Johnson’s holding to

identical residual-clause language previously used to define a “crime of violence” in

USSG § 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11

(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017); In re

Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (holding a challenge to application of

the residual clause in § 4B1.2(a)(2) was “sufficiently based on Johnson to permit

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authorization under § 2255(h)(2)”). Mr. Shaw argued in his motion that his sentence

had been unlawfully enhanced based on two previous convictions for bank robbery

and armed robbery that qualified as crimes of violence under the residual-clause

definition in § 4B1.2(a)(2).

       The district court granted the government’s motion to stay the proceedings on

Mr. Shaw’s § 2255 motion pending the Supreme Court’s decision in Beckles v.

United States, 137 S. Ct. 886 (2017). Like Mr. Shaw, the petitioner in Beckles

sought to invalidate his sentence to the extent that it was based on § 4B1.2(a)(2)’s

residual clause. See id. at 891. Contrary to our decision in Madrid, the Supreme

Court rejected the petitioner’s claim that the career-offender residual clause is void

for vagueness under the reasoning in Johnson. See id. at 895. The Court

distinguished its holding in Johnson, explaining:

       Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
       range of sentences. To the contrary, they merely guide the exercise of a
       court’s discretion in choosing an appropriate sentence within the statutory
       range. Accordingly, the Guidelines are not subject to a vagueness
       challenge under the Due Process Clause. The residual clause in
       § 4B1.2(a)(2) therefore is not void for vagueness.
Id. at 892.

       In light of the Supreme Court’s decision in Beckles, the district court

dismissed Mr. Shaw’s § 2255 motion as untimely. It concluded that Beckles

foreclosed his claim based on a new rule of constitutional law; therefore, his time to

file his motion was not extended under 28 U.S.C. § 2255(f)(3). Consequently, his

motion was timely pursuant to § 2255(f)(1) only if he filed it within one year of the


                                            3
date on which his judgment of conviction became final. According to the district

court, Mr. Shaw’s second § 2255 motion filed in 2016 was therefore untimely. The

court dismissed the motion and denied a COA.

II.    Discussion

       Mr. Shaw must obtain a COA to pursue an appeal. See United States v.

McKenzie, 803 F.3d 1164, 1164 (10th Cir. 2015) (denying a COA to appeal dismissal

of § 2255 motion as time-barred); see also 28 U.S.C. § 2253(c). We liberally

construe his pro se opening brief and application for a COA. See Hall v. Scott,

292 F.3d 1264, 1266 (10th Cir. 2002). Because the district court’s ruling rested on

procedural grounds, Mr. Shaw must show both “that jurists of reason would find it

debatable whether the [motion] states a valid claim of the denial of a constitutional

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)

(emphasis added).

       We deny a COA. Although reasonable jurists would debate the district court’s

determination that Mr. Shaw’s motion was untimely, they would not find it debatable

that his motion fails to state a valid claim of the denial of a constitutional right

because Mr. Shaw’s claim under Johnson is foreclosed by the Supreme Court’s

decision in Beckles.




                                             4
      A.     Reasonable Jurists Would Debate Whether Mr. Shaw’s Motion was
             Untimely

      As relevant here, a motion filed under § 2255 is timely if it is filed within one

year of either “the date on which the judgment of conviction becomes final,”

§ 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,” § 2255(f)(3). The

district court held that Mr. Shaw’s motion was untimely under both of these

provisions. But that determination is debatable under our recent decision in United

States v. Snyder, 871 F.3d 1122 (10th Cir. 2017).

      The district court in Snyder held that a § 2255 motion was untimely under

§ 2255(f)(3) because the prisoner did not have a meritorious claim under Johnson.

Id. at 1126-27. We held that the court had misconstrued the statute, which “[b]y its

plain language . . . allows a § 2255 motion to be filed within one year of ‘the date on

which the right asserted was initially recognized by the Supreme Court.’” Id. at 1126

(quoting 28 U.S.C. § 2255(f)(3)). Construing “assert” as meaning “to invoke or

enforce a legal right,” we held that a motion is timely under § 2255(f)(3) if it

“invoke[s] the newly recognized right, regardless of whether or not the facts of

record ultimately support the movant’s claim.” Id. (brackets and internal quotation

marks omitted). And because the prisoner in Snyder had asserted in his motion that

his ACCA sentence was no longer valid under Johnson, his motion was timely if

filed within one year of that decision. Id.


                                              5
        Here, Mr. Shaw also invoked the newly recognized right in Johnson. He

argued in his § 2255 motion that his career-offender sentence—which was based on

residual-clause language identical to the language invalidated in Johnson—was

illegal. Johnson was decided on June 26, 2015; Mr. Shaw filed his § 2255 motion on

June 20, 2016. Under Snyder, reasonable jurists would debate whether the district

court correctly dismissed Mr. Shaw’s motion as untimely under § 2255(f).

      B.     Reasonable Jurists Would Not Debate Whether Mr. Shaw’s Motion
             States a Valid Claim of the Denial of a Constitutional Right

      Even if the district court’s procedural ruling is debatable, we may not grant a

COA unless Mr. Shaw has also shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right.”

Slack, 529 U.S. at 484. “In reaching this determination, we will not delve into the

merits of the claim, but instead will determine only whether the petitioner has

facially alleged the denial of a constitutional right.” Fleming v. Evans, 481 F.3d

1249, 1259 (10th Cir. 2007); see also Dulworth v. Evans, 442 F.3d 1265, 1266

(10th Cir. 2006) (deciding based on a quick review of the merits that a prisoner’s

claim debatably states a valid claim of the denial of a constitutional right).

      Applying the two-part Slack test applicable to procedural rulings, we have

denied a COA where there was no reasonable basis to debate that a § 2255 motion

failed to state a valid claim of the denial of a constitutional right. See United States

v. Springfield, 337 F.3d 1175, 1177-79 (10th Cir. 2003) (denying a COA because the

prisoner’s ex post facto claim was meritless based on Supreme Court precedent and


                                            6
consistent circuit court rulings); see also English v. Cody, 241 F.3d 1279, 1282-83

(10th Cir. 2001) (denying a COA, in part, because the prisoner’s suggestive

identification claim in his habeas petition failed under Supreme Court precedent).

Here, a quick review of the merits of Mr. Shaw’s sole claim convinces us that the

constitutional issue he seeks to raise on appeal is not “adequate to deserve further

proceedings.” Fleming, 481 F.3d at 1259. He asserts in his § 2255 motion that his

career-offender sentence is invalid under Johnson. But that claim is foreclosed by

the Supreme Court’s decision in Beckles, which held that, unlike the ACCA, the

discretionary Sentencing Guidelines “are not subject to a vagueness challenge under

the Due Process Clause.” 137 S. Ct. at 892. Consequently, Mr. Shaw has not shown

that he is entitled to a COA.

III.   Conclusion

       We deny a COA and dismiss the appeal.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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