United States v. Martinez ( 2019 )


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  •                                                                                      FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                             Tenth Circuit
    FOR THE TENTH CIRCUIT                                July 16, 2019
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                            No. 18-2113
    (D.C. Nos. 1:16-CV-00617-WJ-SCY &
    SEFERINO MARTINEZ,                                      1:96-CR-00186-WJ-1)
    (D. N.M.)
    Defendant - Appellant.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    _________________________________
    Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
    _________________________________
    Seferino Martinez seeks a certificate of appealability (COA) to appeal the district
    court’s denial of his 28 U.S.C. § 2255 motion as untimely. See id. § 2253(c)(1)(B). We
    deny a COA and dismiss this matter.
    I. BACKGROUND
    In 1996, Mr. Martinez was sentenced to 327 months in prison as a career offender
    when the United States Sentencing Guidelines were mandatory. Nearly 20 years later,
    Mr. Martinez filed a § 2255 motion under Johnson v. United States, 
    135 S. Ct. 2551
    (2015), which held that the Armed Career Criminal Act’s residual clause was
    
    This order is not binding precedent except under the doctrines of law of the case,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.
    unconstitutionally vague. See id. at 2557, 2563. He argued that because he received an
    enhanced sentence under the mandatory Guidelines’ similarly worded residual clause, his
    sentence is unconstitutional under Johnson.
    The district court denied the motion as untimely under § 2255(f)(3). That
    provision imposes a one-year limitations period for filing a § 2255 motion from “the date
    on which the right asserted was initially recognized by the Supreme Court . . . and made
    retroactively applicable to cases on collateral review.” Id. The district court determined
    that Johnson did not recognize a right made retroactively applicable to cases on collateral
    review to challenge the constitutional vagueness of the mandatory Guidelines. Hence,
    Mr. Martinez’s motion was untimely. Moreover, the court concluded that our decision in
    United States v. Greer, 
    881 F.3d 1241
     (10th Cir.), cert. denied, 
    139 S. Ct. 374
     (2018)
    resolved this issue. It denied a COA. Mr. Martinez renews his request for a COA in this
    court.
    II. DISCUSSION
    A COA is a jurisdictional prerequisite to our review. See Miller-El v. Cockrell,
    
    537 U.S. 322
    , 336 (2003). To obtain a COA, Mr. Martinez must make “a substantial
    showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires
    him to show “that reasonable jurists could debate whether (or, for that matter, agree that)
    the [motion] should have been resolved in a different manner or that the issues presented
    were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
    
    529 U.S. 473
    , 484 (2000) (internal quotation marks omitted). When the district court
    denied the motion on procedural grounds—here, untimeliness—the prisoner must show
    2
    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.” Id. (emphasis
    added).
    No reasonable jurist could debate the district court’s conclusion that the § 2255
    motion was untimely. As Mr. Martinez acknowledges, our decision in Greer forecloses
    the issue he seeks to raise. Indeed, Greer rejected as untimely an identical challenge to
    the mandatory Guidelines’ career-offender residual clause. 881 F.3d at 1244, 1248-49.
    Greer held the Supreme “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.” Id. at 1248. Because Johnson did not
    recognize a new right applicable to a sentence imposed under the mandatory Guidelines,
    Greer concluded that the § 2255 motion was untimely. Id. at 1248-49.
    Mr. Martinez recognizes that his § 2255 motion is untimely “as long as Greer
    remains good law,” COA Appl. at 11, but he says Greer was overruled by Sessions v.
    Dimaya, 
    138 S. Ct. 1204
    , 1210-11 (2018), which invalidated a similarly worded residual
    clause in 18 U.S.C. § 16(b). Our recent decision in United States v. Pullen, 
    913 F.3d 1270
     (10th Cir. 2019), forecloses that argument. Pullen reiterated after Dimaya that
    “Johnson did not create a new rule of constitutional law applicable to the mandatory
    Guidelines.” Id. at 1284. Given this binding circuit precedent, no reasonable jurist could
    debate the district court’s conclusion that Mr. Martinez’s § 2255 motion was untimely.
    3
    III. CONCLUSION
    We deny a COA and dismiss this matter.
    Entered for the Court
    Scott M. Matheson, Jr.
    Circuit Judge
    4
    

Document Info

Docket Number: 18-2113

Filed Date: 7/16/2019

Precedential Status: Non-Precedential

Modified Date: 7/16/2019