United States v. Elliott ( 2021 )

Appellate Case: 21-8016 Document: 010110623774 Date Filed: 12/23/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 23, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8016
(D.C. Nos. 1:20-CV-00101-SWS &
JOEL S. ELLIOTT, 1:15-CR-00042-SWS-1)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.
_________________________________
Joel S. Elliott requests a Certificate of Appealability (“COA”) to appeal the
district court’s order denying his second or successive motion to vacate or set aside
his conviction and sentence under 28 U.S.C. § 2255. In an order filed earlier today,
we granted panel rehearing and vacated our previous order denying a COA, which
was entered on July 14, 2021, in light of Borden v. United States, 141 S. Ct. 1817(2021). For the reasons set forth below, we now grant a COA. In addition, we vacate
the district court’s order entered on January 13, 2021, and remand Elliot’s § 2255
motion to the district court for further proceedings consistent with this Order.
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 21-8016 Document: 010110623774 Date Filed: 12/23/2021 Page: 2
I.
To obtain a COA, Elliott must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c). That requires Elliott to prove “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
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). This debatability standard “does
not require a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). “In evaluating whether an applicant has satisfied this burden, we
undertake a preliminary, though not definitive, consideration of the legal framework
applicable to each of the claims.” United States v. Parker, 720 F.3d 781, 785
(10th Cir. 2013) (brackets and internal quotation marks omitted).
At the time of the district court’s ruling, this court had held that an offense that
can be committed with a mens rea of recklessness can serve as a qualifying crime of
violence under 18 U.S.C. § 924(c)(3)(A). See United States v. Mann, 899 F.3d 898,
902-08 (10th Cir. 2018). This court had likewise held that an offense committed with
a mens rea of recklessness can serve as a qualifying “violent felony” under
§ 924(e)(2)(B) of the Armed Career Criminal Act.1 See United States v. Pam,
867 F.3d 1191, 1207-08 (10th Cir. 2017), abrogated by Borden, 141 S. Ct. at 1817.
This caselaw is relevant because the federal arson statute that served as a predicate
1
The residual clause in § 924(e)(2)(B) was deemed unconstitutional in
Johnson v. United States, 576 U.S. 591, 606 (2015).
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for Elliott’s § 924(c) conviction is violated if a defendant “maliciously damages or
destroys, or attempts to damage or destroy,” certain types of property “by means of
fire or an explosive.” 18 U.S.C. § 844(f)(1) (emphasis added). And this court has
defined the term “maliciously” in this statute to include both intentional and reckless
behavior. United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998).
The district court applied Mann in denying Elliott’s § 2255 motion on January
13, 2021. See R., Vol. 4 at 154 & n.3. It affirmatively stated that “an offense that
can be committed with a ‘recklessness’ mens rea can serve as a qualifying ‘crime of
violence’ under . . . § 924(c)(3)(A).” Id. at 154 n.3. Five months later, the Supreme
Court held in Borden that a criminal offense requiring only a mens rea of
recklessness cannot count as a violent felony under the elements clause of the Armed
Career Criminal Act, § 924(e)(2)(B)(i). 141 S. Ct. at 1821-22, 1825. The Court
focused on the meaning of “against another” within the phrase the “use of physical
force against the person of another” in the definition of “violent felony” in
§ 924(e)(2)(B)(i). It reasoned that “‘against another[]’ . . . demands that the
perpetrator direct his action at, or target, another individual” and “[r]eckless conduct
is not aimed in that prescribed manner.” 141 S. Ct. at 1825. The language in
§ 924(e)(2)(B)(i) closely resembles the language in § 924(c)(3)(A), except the former
states “against the person of another” while the latter states “against the person or
property of another.”
Having considered this recent legal development, we now conclude that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition
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should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further,” Slack, 529 U.S. at 484(internal quotation marks omitted). Because Elliott has made a substantial showing
of the denial of a constitutional right, a COA should issue.
II.
We grant a COA. In addition, we vacate the district court’s order entered on
January 13, 2021, and remand Elliot’s § 2255 motion to the district court for further
proceedings consistent with this Order and Judgment—including, if necessary,
additional briefing from the parties on the effect, if any, of the Supreme Court’s
decision in Borden and any other recent developments in the law. The mandate shall
issue forthwith.
Entered for the Court
Allison H. Eid
Circuit Judge
4