United States v. Silas ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-4007
(D.C. Nos. 2:18-CV-00279-DN and
ROYAL EVERETT SILAS, 2:15-CR-00071-DN-1)
(D. Utah)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges.
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Royal Silas seeks a certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss this
matter.
I
Silas pled guilty to violating 18 U.S.C. § 1951 (“Hobbs Act Robbery”). In his
plea agreement, Silas waived the right to direct appeal or collateral review, including
§ 2255 motions, except on the issue of ineffective assistance of counsel. His
judgment of conviction was entered on May 22, 2015. He was sentenced as a career
*
This order is not binding precedent, except under the doctrines of law of the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.
offender under U.S.S.G. § 4B1.1. In April 2018, Silas filed the § 2255 motion at
issue. He argued Hobbs Act Robbery is not a crime of violence within the meaning
of § 4B1.2, and his career offender status should be vacated. The district court
dismissed his motion as untimely and as barred by the terms of his plea agreement,
and denied a COA. Silas appealed.1
II
Silas may not appeal the denial of habeas relief under § 2255 without a COA.
28 U.S.C. § 2253(c)(1)(B). This court may issue a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
Because the district court dismissed Silas’ petition on procedural grounds, he must
show “that jurists of reason would find it debatable whether the petition 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, 478 (2000).
Jurists of reason could not find debatable the district court’s determination that
Silas’ § 2255 motion was untimely. His conviction became final on June 5, 2015, the
date on which his time to file a direct appeal expired. Fed. R. App. P. 4(b)(1)(A),
1
Silas filed his notice of appeal after the deadline passed. However, his notice
of appeal was within the time to file a motion for an extension of time under 28
U.S.C. § 2107(c) and Fed. R. App. P. 4(a)(5). This court entered an order construing
his notice of appeal as equivalent to a motion for an extension of time and partially
remanded to the district court to determine whether to grant an extension. The
district court granted Silas an extension of time. That extension validated his notice
of appeal, and his appeal is therefore timely. See Hinton v. City of Elwood, 997 F.2d
774, 778 (10th Cir. 1993).
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26(a)(1). He filed this § 2255 motion nearly three years later, on April 2, 2018. But
there is a one-year limitations period for filing § 2255 motions. 28 U.S.C. § 2255(f).
This period generally runs from the “date on which the judgment of conviction
becomes final.” § 2255(f)(1).
However, Silas contends his limitations period should run from “the date on
which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” § 2255(f)(4). He brings the motion solely
based on this court’s publication of United States v. O’Connor, 874 F.3d 1147 (10th
Cir. 2017). Silas argues that relevant facts were not available to him until this court’s
decision in O’Connor, and therefore his petition is timely under § 2255(f)(4). But he
does not specify what facts from his own case he did not know before this court’s
decision in O’Connor that prevented him from arguing Hobbs Act Robbery is not a
violent crime under the Guidelines. He also alleges O’Connor recognized a new right
that is retroactive on collateral appeal under § 2255(f)(3). But that subsection applies
exclusively to rights newly recognized by the Supreme Court; an opinion by this
court cannot excuse an otherwise untimely habeas petition. Therefore, the one-year
limitations period began to run on June 5, 2015, and Silas’ petition is untimely.
3
III
We DENY Silas’ request for a COA and DISMISS this matter. Silas’ motion
to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4