United States v. McClendon

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6323
(D.C. Nos. 5:16-CV-00446-F and
JOSHUA ANTONIO McCLENDON, 5:13-CR-00117-F-1)
(W.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Joshua McClendon seeks a certificate of appealability (“COA”) to appeal the
district court’s dismissal of his 28 U.S.C. § 2255 motion. We deny a COA and
dismiss the appeal.
McClendon pled guilty to bank robbery in federal court pursuant to a plea
agreement. Under that agreement, McClendon waived his right to “collaterally
challenge . . . his sentence as imposed by the Court and the manner in which the
sentence is determined, provided the sentence is within or below the advisory
guideline range determined by the Court to apply in this case.” McClendon’s
presentence investigation report (“PSR”) recommended that he be sentenced as a
*
This order is not binding precedent, except under the doctrines of law of the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.
career offender under U.S.S.G. § 4B1.2 and proposed a Guidelines range of 188 to
235 months. The district court adopted the PSR and imposed a sentence of 192
months.
McClendon filed a § 2255 motion arguing that he was entitled to relief
pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). The government
moved to enforce the plea agreement’s collateral attack waiver. After ordering
McClendon to respond, the district court granted the motion to enforce, dismissed
McClendon’s § 2255 motion, and denied a COA. McClendon now seeks a COA
from this court.
A prisoner may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2).
If a district court dismisses a § 2255 motion on procedural grounds, a prisoner can
meet this standard only by showing “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, 484 (2000); see also United
States v. Snider, 504 F. App’x 674, 677 (10th Cir. 2012) (unpublished) (enforcement
of a collateral attack waiver constitutes a procedural ruling).
We do not need to consider whether the district court’s procedural ruling is
debatable because McClendon’s substantive claim necessarily fails. In Beckles v.
United States, 137 S. Ct. 886 (2017), the Supreme Court held that Johnson does not
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apply to sentences imposed under U.S.S.G. § 4B1.2 because the Guidelines are not
subject to vagueness challenges. Beckles, 137 S. Ct. at 890. Accordingly,
McClendon cannot prevail on the sole claim he asserted in his § 2255 motion.
We DENY a COA and DISMISS the appeal. McClendon’s motion to proceed
in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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