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

                       FOR THE TENTH CIRCUIT                       October 7, 2019
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                    No. 17-4136
v.                                       (D.C. Nos. 2:16-CV-00589-DAK &
                                               2:02-CR-00502-DN-1)
SURMAN MILLER,                                       (D. Utah)

        Defendant - Appellant.
                    _________________________________

                                  ORDER
                     _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                _________________________________

      The issue in this appeal involves the timeliness of Mr. Surman

Miller’s motion to vacate his sentence. The district court dismissed the

motion on the ground that the limitations period had expired. Mr. Miller

wants to appeal; to do so, he requests a certificate of appealability and

initial consideration en banc. We deny the request for a certificate, dismiss

the appeal, and deny the request for initial consideration en banc as moot

because absent the grant of a certificate we do not have jurisdiction over

the merits of this appeal.

      Mr. Miller committed the offense in 2002; at that time, the United

States Sentencing Guidelines were considered mandatory. See, e.g., Burns

v. United States, 501 U.S. 129, 133 (1991), abrogated on other grounds,
Dillon v. United States, 560 U.S. 817, 820-21 (2010). These guidelines

treated an offense as a crime of violence if the offense created “a serious

potential risk of physical injury to another.” USSG § 4B1.2(a)(2) (2002). 1

(This provision is commonly known as the “residual clause.”)

     The guidelines are now considered advisory rather than mandatory.

See United States v. Booker, 543 U.S. 220, 237–39 (2005). After they

became advisory, the Supreme Court rejected a vagueness challenge to the

guidelines’ residual clause. Beckles v. United States, 137 S. Ct. 886, 890,

892, 894–95 (2017). But the Supreme Court has not squarely addressed a

vagueness challenge to the guidelines when they were considered

mandatory. See id. at 903 n.4 (Sotomayor, J., concurring).

     Mr. Miller contends that given the mandatory nature of the guidelines

in 2002, their residual clause should be subject to a vagueness challenge.

For this contention, Mr. Miller likens the guidelines’ residual clause to an

identical statutory clause in the Armed Career Criminal Act (18 U.S.C.

§ 924(e)(2)(B)(ii)), which was struck down in Johnson v. United States as

unconstitutionally vague. 135 S. Ct. 2551, 2563 (2015).

     To raise this contention on appeal, Mr. Miller needs a certificate of

appealability. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This




1
     The sentencing court used the 2002 version of the guidelines.

                                      2
certificate is available only if Mr. Miller shows that reasonable jurists

could debate the correctness of the district court’s ruling. Slack v.

McDaniel, 529 U.S. 473, 483–84 (2000). We conclude that Mr. Miller has

not made this showing.

      A motion to vacate the sentence is ordinarily due one year from when

the judgment became final. 28 U.S.C. § 2255(f)(1). An exception exists

when the defendant relies on a new rule of constitutional law that has been

deemed retroactive to cases on collateral review. 28 U.S.C. 2255(f)(3). Mr.

Miller invokes this exception here based on Johnson. Though Johnson did

not address the sentencing guidelines, our later opinion in United States v.

Greer did, holding that Johnson had not set out a new constitutional rule

applicable to the guidelines when they were considered mandatory. 881

F.3d 1241, 1247–49 (10th Cir.), cert denied, 139 S. Ct. 374 (2018).

      The defendant argues that Greer was abrogated by Sessions v.

Dimaya. In Dimaya, the Supreme Court applied Johnson to the definition

of a “crime of violence” in 18 U.S.C. § 16(b). Sessions v. Dimaya, 138 S.

Ct. 1204, 1213–16 (2018). But after the Supreme Court decided Sessions v.

Dimaya, we reiterated in United States v. Pullen that Johnson had not

created a new rule of constitutional law applicable to the mandatory

guidelines. United States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir.

2019), petition for cert. filed (U.S. July 17, 2019) (No. 19-5219). So


                                       3
Dimaya does not allow Mr. Miller to invoke § 2255(f)(3) based on

Johnson.

      Given our decisions in Greer and Pullen, we start the one-year period

of limitations from the date on which the conviction became final, not from

the date on which Johnson was decided. Applying this limitations period,

any reasonable jurist would conclude that Mr. Miller’s motion to vacate

was untimely.

      Mr. Miller’s sentence became final in 2004. United States v. Miller,

114 F. App’x 375, 376, 379 (2004) (unpublished). He then had one year to

move to vacate his sentence; but he waited roughly eleven years, missing

the limitations period by about ten years. Because Mr. Miller’s motion was

indisputably untimely, we (1) decline to issue a certificate of appealability,

(2) dismiss the appeal, and (3) deny the request for initial consideration en

banc as moot because absent the grant of a certificate we do not have

jurisdiction over the merits of this appeal.



                                       Entered for the Court


                                       Per Curiam




                                       4
United States v. Miller, No. 17-4136, Bacharach, J., dissenting.

      I agree with the majority that Mr. Miller’s claim fails under Greer

and Pullen. But I believe that Mr. Miller has satisfied the low threshold for

a certificate of appealability.

      As the majority explains, the issue for a certificate is whether

“reasonable jurists could debate the correctness of the district court’s

ruling.” Maj. Order at 3 (citing Slack v. McDaniel, 529 U.S. 483–84

(2000)). In my view, reasonable jurists could consider the underlying issue

debatable if presented to the en banc court. 1 See United States v. Crooks,

769 F. App’x 569, 571-72 (10th Cir. 2019) (unpublished) (granting a

certificate of appealability on the same issue); 2 see also Jordan v. Fisher,

135 S. Ct. 2647, 2651 (2015) (Sotomayor, J., dissenting from the denial of

cert.) (arguing that the Fifth Circuit should have granted a certificate of

appealability, though the claim was foreclosed by a Fifth Circuit



1
       Mr. Miller has requested an initial en banc, which we can consider
only upon the issuance of a certificate of appealability. Even if this request
is denied, however, Mr. Miller should at least have an opportunity to seek
rehearing en banc, where he could urge reconsideration of the holding in
Greer or Pullen. As an en banc court, we might or might not decide to
revisit these issues. But Mr. Miller cannot even ask us to convene as an en
banc court in the absence of a certificate of appealability. Thus, denial of a
certificate effectively prevents Mr. Miller from asking the en banc court to
revisit the holding in Greer or Pullen.
2
      We also granted a certificate of appealability on this issue in United
States v. Ford, No. 17-1122, slip op. at *3 (10th Cir. Aug. 8, 2019).
precedent, because judges elsewhere had found the same claim reasonably

debatable). 3 I would thus grant a certificate of appealability and affirm the

dismissal of Mr. Miller’s motion to vacate his sentence.




3
      I do not suggest that we should grant a certificate of appealability
based solely on the fact that judges in our court have granted certificates
on the same issue. See Griffin v. Sec’y, 787 F.3d 1086 (11th Cir. 2015). “If
the fact that one or more judges had granted a [certificate of appealability]
on an issue, or even concluded that the issue had merit, required all other
judges to grant a [certificate of appealability] on the issue, the standard
would be transformed from objective to subjective. It is not a subjective
standard.” Id. at 1095. I simply note that

           some judges in our court have regarded the same issue
            reasonably debatable even after Greer and Pullen,

           the en banc court need not be constrained by Greer or Pullen,

           Mr. Miller has already asked for en banc consideration and, if
            we were to grant a certificate, he could ask again after issuance
            of the panel’s order.

                                       2
