United States v. Rhodes ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6096
(D.C. Nos. 5:16-CV-00799-R and
JIMMY EUGENE RHODES, 5:01-CR-00202-R-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
_________________________________
Jimmy Rhodes appeals the district court’s denial of his 28 U.S.C. § 2255
motion. Exercising jurisdiction under 28 U.S.C. § 2253(c), we affirm.
I
In 2002, Rhodes was convicted in federal court of several drug and firearm
offenses. A Presentence Investigation Report (“PSR”) indicated that Rhodes was
subject to a fifteen-year mandatory minimum under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). It identified a prior conviction for shooting with
intent to kill and two prior convictions for second degree burglary, all in Oklahoma
state court. At sentencing, the district court asked defense counsel whether he
*
This order and judgment is not binding precedent, except under the doctrines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.
disagreed with the ACCA enhancement “based on the defendant’s prior convictions”
and counsel responded that he had no objection. The district court adopted the PSR.
It imposed a total sentence of 260 months. Neither the PSR nor the district court
explicitly stated which clause of ACCA was applied.1
We affirmed on direct appeal. United States v. Rhodes, 62 F. App’x 869, 870
(10th Cir. 2003) (unpublished). Rhodes did not raise any sentencing issues. He then
filed a § 2255 habeas motion arguing ineffective assistance of counsel, which was
denied. We did not grant a COA. United States v. Rhodes, 157 F. App’x 84 (10th
Cir. 2005) (unpublished).
Following the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), which invalidated the residual clause of ACCA, we granted Rhodes
authorization to file another habeas motion to raise claims based on Johnson. In his
motion, Rhodes argued that his sentence was invalid because his prior convictions
were considered under the residual clause of ACCA. The district court stated that
“the record does not support his contention” and concluded that Rhodes was not
actually raising a Johnson claim. It dismissed his motion as untimely. Rhodes
appealed, and we granted him a certificate of appealability.
1
At the time of Rhodes’ sentencing, a prior conviction could qualify as a
violent felony for ACCA purposes under three separate clauses: the elements clause,
which includes felonies that have “as an element the use, attempted use, or threatened
use of physical force against the person of another,” § 924(e)(2)(B)(i); the
enumerated offense clause, which covers “burglary, arson, or extortion, [or] involves
use of explosives,” § 924(e)(2)(B)(ii); or the residual clause, which encompassed
felonies that “otherwise involve[] conduct that presents a serious potential risk of
physical injury to another,” § 924(e)(2)(B)(ii).
2
II
In a § 2255 appeal, we “review the district court’s findings of fact for clear
error and its conclusions of law de novo.” United States v. Barrett, 797 F.3d 1207,
1213 (10th Cir. 2015) (quotation omitted). As relevant here, a habeas motion must
be filed within one year of “the date on which the judgment of conviction becomes
final” 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,” whichever date is later.
§ 2255(f)(1), (3). The district court concluded that, because Rhodes failed to show
his ACCA enhancement was imposed under the residual clause, he was not actually
asserting a claim under Johnson and that decision did not provide him a new
limitations period.
After briefing in this appeal was complete, we issued an opinion holding that
“to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly
recognized right, regardless of whether or not the facts of record ultimately support
the movant’s claim.” United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017).
We ordered supplemental briefing on the impact of Snyder. In light of that decision,
the government concedes that Rhodes’ motion is timely.
Although Snyder establishes that Rhodes motion is timely, it also fatally
undermines his claim. As we explained in that case, “it may be possible to determine
that a sentencing court did not rely on the residual clause—even when the sentencing
record alone is unclear—by looking to the relevant background legal environment at
3
the time of sentencing.” Id. at 1129 (quotation omitted). If a sentencing court did
not rely on the residual clause, a Johnson claim necessarily fails because the Supreme
Court did “not call into question application of [ACCA] to the four enumerated
offenses, or the remainder of [ACCA’s] definition of a violent felony.” 135 S. Ct. at
2563.
At the time Rhodes was sentenced, our court had repeatedly held that
Oklahoma second degree burglary qualified as an enumerated offense if underlying
documents indicated that the defendant burgled a building. See United States v.
Green, 55 F.3d 1513, 1515-16 (10th Cir. 1995); United States v. Hill, 53 F.3d 1151,
1153-55 (10th Cir. 1995) (en banc); United States v. Amos, 984 F.2d 1067, 1070-71
(10th Cir. 1993).2 Rhodes’ PSR and the government’s ACCA notice (to which state
court documents were attached) indicate that Rhodes was convicted of burgling
homes. We are not directed to any prior decision considering the Oklahoma statute at
issue under the residual clause. To the contrary, we declined to analyze whether
Oklahoma second degree burglary involved “serious potential risk of physical injury
to another” in Amos because we concluded the crime “meets the Taylor court’s
2
To qualify as an enumerated offense, a state statute must comport with the
“generic” definition of the crime: “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.” Taylor v.
United States, 495 U.S. 575, 598 (1990). Courts apply the categorical approach in
considering whether a prior offense qualifies, but may look to state court documents
in a narrow range of cases to determine whether a defendant was convicted of generic
burglary despite an otherwise overbroad statute. Id. at 602. We express no opinion
as to whether our prior cases remain good law following the Supreme Court’s more
recent clarifications regarding the so-called “modified categorical approach.” See
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
4
definition of burglary” under the enumerated offense clause and thus “qualifies as a
‘violent felony.’” 984 F.2d at 1071.
As in Snyder, “there would have been little dispute at the time of . . .
sentencing that” Rhodes’ burglary convictions constituted enumerated offenses. 871
F.3d at 1129. Accordingly, his “Johnson claim must fail because the district court’s
ACCA[] determination at the time of sentencing rested on the enumerated [offense]
clause rather than the residual clause.” Id. at 1130.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
5