United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
1989, following a jury trial, defendant Abelee Bronson was
convicted under 18 U.S.C. §§ 2113(a) and (d) of
armed robbery. Mr. Bronson was classified as a career
offender under § 4B1.1 of the then-mandatory guidelines
and was ultimately sentenced to 262 months imprisonment to
run consecutive to a like sentence he received in federal
court in Missouri for another robbery. Mr. Bronson's
classification as a career offender increased his sentencing
range from 84-105 months to 262-300 months. See United
States v. Brunson, 907 F.2d 117, 120 (10th Cir. 1990).
2016, Mr. Bronson filed a § 2255(f)(3) petition seeking
relief based on Johnson v. United States, 135 S.Ct.
2551 (2015). Shortly thereafter, counsel for the parties
agreed to stay the proceedings in this case pending the
Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886 (2017). After the Supreme Court
issued that decision (and left open the question whether
defendants who were sentenced under the mandatory
Guidelines-as Mr. Bronson was- may challenge their sentences
for vagueness), the court lifted the stay and the parties
briefed Mr. Bronson's § 2255 petition. Counsel for
Mr. Bronson then notified the court of his intent to file a
supplemental brief after the Supreme Court's opinion in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018) on the
grounds that Dimaya could bear on Mr. Bronson's
case. The court, then, essentially stayed the proceedings
again pending a decision in Dimaya and ordered Mr.
Bronson to file his supplemental brief within 21 days of the
Bronson has now filed a status report and a motion requesting
a briefing schedule so that the parties may fully address the
impact, if any, of Dimaya on two Tenth Circuit
decisions, United States v. Greer, 881 F.3d 1241
(10th Cir. 2018) and United States v. Mulay, 2018 WL
985741 (10th Cir. Feb. 20, 2018). Both Greer and
Mulay answered the question left open by the Supreme
Court in Beckles and held that Johnson does
not apply to mandatory Guidelines cases on collateral review.
In those cases, the Circuit reasoned that the right
recognized by the Supreme Court in Johnson-for
purposes of the procedural requirements of the Antiterrorism
and Effective Death Penalty Act (AEDPA)-was limited to a
defendant's right not to have his sentence increased
under the residual clause of the ACCA and, accordingly, a
defendant who had been sentenced under the mandatory
Guidelines rather than the ACCA had not invoked such a right.
In Dimaya, the Supreme Court did not limit
Johnson to the ACCA and, instead, applied the
reasoning of Johnson to support a finding that the
residual clause in a similarly worded statute, 8 U.S.C.
§ 16(b), was unconstitutionally vague. 138 S.Ct. at
Bronson contends that Dimaya directly contradicts
Greer and Mulay such that those cases have
been superseded and he asks this court to find that
Johnson applies to mandatory Guidelines cases on
collateral review and to grant his § 2255 petition on
that basis. In the alternative, Mr. Bronson asks the court,
if it denies his petition, to grant a certificate of
appealability on the issue of whether Dimaya has
sufficiently undermined Greer and Mulay to
warrant a retreat from the holding in those cases. Mr.
Bronson has advised the court that the government takes no
position on whether the court should grant a certificate of
court denies Mr. Bronson's motion requesting a briefing
schedule and dismisses Mr. Bronson's § 2255 petition
as untimely under § 2255(f)(3). As Mr. Bronson candidly
admits, the Circuit has settled the issue of whether
Johnson applies to mandatory Guidelines cases on
collateral review and has squarely held that, for purposes of
§ 2255(f)(3), the right recognized by the Supreme Court
in Johnson was limited to a defendant's right
not to have his sentence increased under the residual clause
of the ACCA. Under Circuit precedent, then, Mr. Bronson, who
was sentenced under the mandatory Guidelines rather than the
ACCA, has not invoked a “right . . . newly recognized
by the Supreme Court.” 28 U.S.C. § 2255(f)(3).
Moreover, the court rejects Mr. Bronson's argument that
Dimaya contradicts, supersedes or invalidates the
Circuit's holding in Greer and Mulay.
Dimaya applied the reasoning of Johnson to a
similarly worded statute outside the context of the AEDPA. In
both Greer and Mulay, the Circuit's
review was confined by the AEDPA and its procedural
requirement that a habeas petitioner file a claim for relief
within one year of a “newly recognized right” to
the relief requested. Dimaya, then, does not dictate
that Johnson, for purposes of the AEDPA, recognized
a right broader than the right described by the Tenth Circuit
in Greer and Mulay. Because Dimaya
does not contradict Greer and Mulay, this
court is required to follow those decisions. See United
States v. Spedalieri, 910 F.2d 707, 709 & n.2 (10th
Cir. 1990) (district court is bound by Tenth Circuit
precedent); see also Leatherwood v. Allbaugh, 861
F.3d 1034, 1042 n.6 (10th Cir. 2017) (“[W]e are bound
by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the
Supreme Court.”) (quoting Barnes v. United
States, 776 F.3d 1134, 1147 (10th Cir. 2015)). It is not
for this court to read the tea leaves to attempt to determine
whether the Circuit would rethink its position. In light of
Greer and Mulay, the court finds that Mr.
Bronson's § 2255(f)(3) petition is untimely filed
because it does not assert a right recognized by the Supreme
Court in Johnson.
the court is entering a final order adverse to Mr. Bronson,
it considers whether to issue a certificate of appealability.
“A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
To satisfy this standard, the petitioner must demonstrate
that “reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” See Saiz v. Ortiz, 393 F.3d 1166,
1171 n.3 (10th Cir. 2004) (quoting Tennard v.
Dretke, 542 U.S. 274, 282 (2004)). In addition, when the
court's ruling is based on procedural grounds, a
petitioner must demonstrate 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). Under
this standard, the court believes that a certificate of
appealability is appropriate because reasonable jurists would
find it debatable whether Dimaya sufficiently
undermines the Circuit's rationale in Greer and
Mulay to warrant a retreat from the holding in those
cases such that Mr. Bronson's petition would be deemed
timely filed for purposes of § 2255(f)(3). Whether it
did so is better left for the Court of Appeals.
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Bronson's motion to vacate under 28 U.S.C. § 2255
(doc. 98) is dismissed and Mr. Bronson's
motion to order briefing schedule (doc. 116) is
IS FURTHER ORDERED BY THE COURT THAT a certificate
of appealability is granted.