FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
WYOMING (D.C. Nos. 2:16-CV-00058-ABJ and 2:04-CR-00118-ABJ-1)
Meredith B. Esser, Assistant Federal Public Defender
(Virginia L. Grady, Federal Public Defender, with her on the
briefs), Denver, Colorado, for Defendant-Appellant.
M. Conder, Assistant United States Attorney, Lander, Wyoming
(Christopher A. Crofts, United States Attorney, and David A.
Kubichek, Assistant United States Attorney, Casper, Wyoming,
on the brief), for Plaintiff-Appellee.
KELLY, BRISCOE, and McHUGH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
28 U.S.C. § 2255 motion, Michael Lee Snyder asks for
immediate release from federal custody on the basis that he
has already served more than the maximum sentence allowed by
law for his crimes. In particular, he argues that the Supreme
Court's recent decision in Johnson v. United
States, U.S., 135 S.Ct. 2551 (2015), invalidates his
sentence enhancement under the Armed Career Criminal Act
(ACCA). The district court denied Snyder's motion.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm. In doing so, we conclude that Snyder has timely
asserted a Johnson claim and has established cause
and prejudice to avoid procedural default, but his claim
fails on the merits because, after examination of the record
and the relevant background legal environment, it is apparent
that he was not sentenced based on the ACCA's residual
clause that was invalidated in Johnson.
December 2004, Snyder pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). ROA, Vol. 2 at 416. A presentence report (PSR) was
prepared and submitted to the district court and the parties.
The PSR concluded, in a section entitled "Offense Level
Computations, " that Snyder was "subject to an
enhanced sentence under the provisions of 18 U.S.C. §
924(e) as an armed career criminal" because "[h]e
ha[d] sustained two convictions for Burglary of two
residences, and a conviction of a controlled substance
offense, Delivery of Marijuana." Supp. ROA at 7. The PSR
in turn, in a section entitled "THE Defendant'S
[sic] CRIMINAL HISTORY, " discussed Snyder's
criminal history and noted, in pertinent part, that Snyder
had a November 1994 Wyoming state conviction for delivery of
marijuana, as well as two Wyoming state convictions for
burglary of inhabited residences, one arising in October 1995
and the other in January 2004. Id. at 7, 12-13, 18.
Finally, in a section entitled "SENTENCING OPTIONS,
" the PSR concluded that Snyder's "minimum term
of incarceration [wa]s fifteen years and the maximum term
[wa]s life" pursuant to "18 U.S.C. §
924(e)(1)." Id. at 25.
objected to the PSR's proposed application of the ACCA on
the grounds that doing so would violate Apprendi v. New
Jersey, 530 U.S. 466 (2000), because the fact of his
prior convictions had not been alleged in the indictment or
proven to a jury beyond a reasonable doubt.
district court sentenced Snyder on March 1, 2005.
Snyder's counsel reiterated the Apprendi-based
objection to Snyder being sentenced under the ACCA. At no
time, however, did Snyder's counsel otherwise argue that
Snyder's Wyoming burglary convictions failed to
constitute predicate offenses under the ACCA. The district
court rejected Snyder's Apprendi-based
objection, adopted the PSR's calculations and
recommendations, and sentenced Snyder to the statutory
minimum sentence of 15 years, less seven months and nineteen
days served on a related state sentence, for which credit
could not be granted by the Federal Bureau of Prisons
pursuant to 18 U.S.C. § 3585.
filed a direct appeal challenging his sentence. In doing so,
he asserted only his Apprendi-based objections and
made no argument that his prior convictions failed to qualify
as predicate offenses under the ACCA. This court rejected
Snyder's arguments and affirmed his sentence. See
United States v. Snyder, 158 F.App'x. 942 (10th Cir.
26, 2015, the Supreme Court decided Johnson. On
October 15, 2015, Snyder filed a letter with the district
court asking for assistance in obtaining relief under
Johnson. ROA, Vol. 1 at 6. Then, on March 30, 2016,
with the assistance of counsel, he filed a motion to vacate
his sentence and for immediate release pursuant to 28 U.S.C.
§ 2255. Id. at 39. In this motion, he asserted
that, following the Court's decision in Johnson,
his Wyoming state burglary convictions no longer qualify as
predicate offenses under the ACCA, so he is not an armed
career criminal, and his enhanced sentence exceeds the
maximum authorized by law. See id. at 41.
district court denied Snyder's motion and also denied a
Certificate of Appealability (COA). See id. at
132-52; see Fed. R. App. P. 22. We granted a COA and
heard argument on the merits.
appeal from the denial of a § 2255 motion, ordinarily
'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) (quoting United States v. Rushin, 642
F.3d 1299, 1302 (10th Cir. 2011)).
§ 2255 motion must be filed within one year of the
latest of four qualifying events. 28 U.S.C. § 2255(f).
As relevant here, this is the latest of either "the date
on which the judgment of conviction bec[ame] 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." Id.
§ 2255(f)(1), (3).
district court concluded that Snyder's motion was not
timely under either of these subsections. To begin with, it
concluded that the motion was not timely under §
2255(f)(1) because it was filed more than a year after the
date on which his judgment of conviction became final.
Further, the district court concluded that the motion was not
timely under § 2255(f)(3) because, even though it
alleged a right to relief under Johnson, "[t]he
actual facts of record in this matter offer[ed] no basis
whatsoever for the notion the sentence [Snyder] received was
based on the ACCA's 'residual clause, ' rather
than its 'enumerated offenses clause.'" ROA at
133. In other words, the district court looked beyond the
allegations contained in Snyder's § 2255 motion and
determined whether Snyder was actually entitled to relief
under Johnson. Id. Although, as we shall
explain below, we ultimately agree with the district court
that Snyder is not entitled to relief under Johnson,
we disagree that his § 2255 motion was untimely.
plain language, the statute allows a § 2255 motion to be
filed within one year of "the date on which the right
asserted was initially recognized by the Supreme
Court." 28 U.S.C. § 2255(f)(3) (emphasis added).
"We give the words of a statute their ordinary,
contemporary, common meaning, absent an indication Congress
intended them to bear some different import." Wall
v. Kholi, 562 U.S. 545, 551 (2011) (quoting Williams
v. Taylor, 529 U.S. 420, 431 (2000)). To
"assert" means "[t]o state positively" or
"[t]o invoke or enforce a legal right."
Assert, Black's Law Dictionary (10th
ed. 2014). Thus, in order to be timely under §
2255(f)(3), a § 2255 motion need only ...