F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 7, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-4115
SA M U EL N EIL C HR ISTEN SEN,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH *
(D .C . N OS. 2:05-C V-286-D AK and 2:03-C R-108-D AK )
Samuel Neil Christensen, pro se.
Paul M . W arner, United States Attorney (W ayne T. Dance, Assistant United
States Attorney), District of Utah, Salt Lake City, Utah, for the Plaintiff -
Appellee.
Before HA RTZ, SE YM OU R and M cCO NNELL, Circuit Judges.
HA RTZ, Circuit Judge.
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Samuel Neil Christensen pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), upon a
finding by the sentencing judge that his prior arson conviction in N evada was a
“violent felony.” Judgment was entered June 21, 2004. M r. Christensen did not
appeal his conviction. He did, however, file in the U nited States D istrict Court
for the District of Utah on M arch 31, 2005, a motion for habeas relief under
28 U.S.C. § 2255, contending that his sentence violated United States v. Booker,
543 U.S. 220 (2005), and Shepard v. United States, 544 U.S. 13 (2005). The
district court denied the motion, ruling that Booker is not applicable to cases on
collateral review and that whether a prior conviction constitutes a crime of
violence is a question of law not implicated by Booker. The court did not
specifically address Shepard. M r. Christensen now seeks review in this court.
To appeal the district court’s ruling, M r. Christensen must first obtain a
certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1). He is entitled to
a COA “only if [he makes] a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must
demonstrate “that reasonable jurists could debate w hether (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. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
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B ecause the district court did not rule on M r. Christensen’s petition for a COA,
we deem it denied. See United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th
Cir. 2000). For the following reasons, we, too, deny a COA.
In his pleadings before this court, M r. Christensen concedes that Booker is
not retroactive and does not provide him a basis to attack his sentence. See
U nited States v. Bellam y, 411 F.3d 1182, 1186-87 (10th Cir. 2005) (“W e now join
all other circuits that have examined the question and conclude Booker does not
apply retroactively to initial habeas petitions.”). This leaves his claim under
Shepard that the federal district court improperly made fact findings in
determining that his Nevada arson conviction was a “violent felony” under the
ACCA. His reliance on Shepard fails, however, because a COA cannot be
granted on a nonconstitutional claim, see United States v. Taylor, No. 05-3417,
2006 W L 1828525, at *2 (10th Cir. July 5, 2006), and Shepard, as we proceed to
explain, decided only a matter of statutory interpretation.
Shepard held that a sentencing court may look only to the “statutory
definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented” to determine w hether a prior conviction qualifies as a
predicate offense under the ACCA. See Shepard, 544 U.S. at 16. Although the
opinion noted constitutional concerns about judicial fact-finding for purposes of
sentencing enhancement, its holding was purely a matter of statutory
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interpretation. The Eleventh Circuit recently summarized Shepard’s holding as
follow s:
Shepard was not a constitutional decision. Shepard decided an issue
of statutory interpretation. The issue in Shepard was whether the
Armed Career Criminal Act permitted a sentencing court to consider
police reports and complaint applications to establish that prior
convictions for burglary were violent felonies. [Shepard, 544 U.S. at
16.] In Taylor v. United States, 495 U.S. 575 (1990), the Court had
held that “the ACCA generally prohibits the later court from delving
into particular facts disclosed by the record of conviction” to
determine the character of a prior conviction for the purpose of
enhancing a sentence under the ACCA. Shepard, 544 U.S. at 17. In
Shepard, the Court held that the rule in Taylor applies to convictions
on pleas, as well as to convictions on jury verdicts. Id. at 19.
United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005). To be sure,
Shepard raised the possibility that a different reading of the statute m ight violate
a defendant’s Sixth Amendment right to trial by jury. To buttress its decision to
read the ACCA as it did, the Court invoked “[t]he rule of reading statutes to avoid
serious risks of unconstitutionality.” Shepard, 544 U.S. at 25. But the Court did
not say that the Sixth Amendment required its interpretation of the ACCA, or that
a different reading would create a Sixth Amendment violation. It merely raised
the possibility. See, e.g., United States v. Thom pson, 421 F.3d 278, 282 n.3 (4th
Cir. 2005) (“It did not escape the Court’s notice in Shepard that the rule it
announced might have constitutional implications.” (emphasis added)).
Accordingly, M r. Christensen cannot obtain a COA based on Shepard’s holding.
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M oreover, even were we to interpret M r. Christensen’s brief as contending
that the requirements set forth in Shepard are, regardless of the expressed basis
for the holding, compelled by the Constitution, we still could not grant him a
COA. “Initial habeas petitions based upon a new rule of constitutional law . . .
are guided by the framew ork established by the Supreme Court in Teague v. Lane,
489 U.S. 288 (1989).” United States v. M ora, 293 F.3d 1213, 1218 (10th Cir.
2002). In Teague the Supreme Court held that ordinarily new rules of
constitutional law “will not be applicable to those cases which have become final
before the new rules are announced.” Teague, 489 U.S. at 310.
The term new rule is somewhat imprecise. As the Supreme Court has
acknowledged, “[w]e have stated variously the formula for determining when a
rule is new.” O’Dell v. Netherland, 521 U.S. 151, 156 (1997). The formula it
adopted in O’Dell was whether a “court considering the defendant’s claim at the
time his conviction became final would have felt compelled by existing precedent
to conclude that the rule he seeks was required by the Constitution.” Id. (internal
quotation marks and brackets omitted). “Compelled by existing precedent” can
perhaps best be understood in light of the Court’s statement that “the Teague
doctrine validates reasonable, good-faith interpretations of existing precedents
made by state courts even though they are shown to be contrary to later
decisions.” Id. (internal quotation marks omitted). Although Teague (as well as
each of its Supreme Court progeny) involved a challenge by a state prisoner
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brought under 28 U .S.C . § 2254, whereas this is a case brought under § 2255, w e
have held “that Teague’s nonretroactivity doctrine applies equally to habeas
petitions brought under sections 2254 and 2255.” Daniels v. United States, 254
F.3d 1180, 1194 (10th Cir. 2001) (en banc).
Because M r. Christensen did not pursue a direct appeal of his state
conviction, that conviction became final 10 days after June 21, 2004, the date
judgment w as entered, see Bellamy, 411 F.3d at 1186 (citing Fed. R. App. P.
4(b)(1)(A)), and well before Shepard was decided on M arch 7, 2005. W hether the
constitutional rule M r. Christensen advocates is a new rule thus depends on
whether it was compelled by Supreme Court precedent existing on July 1, 2004.
W e think it beyond debate that it was not so compelled. At that time, only
the Supreme Court’s 1990 decision in Taylor even hinted at the constitutional
concern addressed more fully in Shepard. See Taylor, 495 U.S. at 601 (“If the
sentencing court were to conclude, from its own review of the record, that the
defendant actually committed a generic burglary, could the defendant challenge
this conclusion as abridging his right to a jury trial?”). And, like Shepard, the
holding in Taylor is purely a matter of statutory interpretation.
M r. Christensen might also point to Apprendi v. New Jersey, 530 U.S. 466
(2000), which stated: “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. But
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Apprendi did not compel the result he advocates. To reach that conclusion we
need look no further than the dissent in Shepard. W e deem it wise to presume
that an opinion by a Justice of the U nited States Supreme Court constitutes a
“reasonable, good-faith interpretation[] of existing precedents.” O’Dell, 521 U.S.
at 156 (internal quotation marks omitted). Accordingly, it is dispositive that
Justice O’Connor’s dissent for three Justices in Shepard stated: “The Court today
adopts a rule that is not compelled by statute or by this Court’s precedent,”
Shepard, 544 U.S. at 28 (O’Connor, J., dissenting), and “[e]ven in a post-
Apprendi world, I cannot understand how today’s case raises any reasonable
constitutional concern,” id. at 37. W e conclude that M r. Christensen is
advocating a new rule.
But this is not quite the end of the inquiry. The Teague doctrine recognizes
that in certain limited circumstances a habeas petitioner may benefit from a new
rule. See O’Dell, 521 U.S. at 156-57. The Court stated:
The first, limited exception is for new rules forbidding criminal
punishment of certain primary conduct and rules prohibiting a certain
category of punishment for a class of defendants because of their
status or offense. The second, even more circumscribed, exception
permits retroactive application of watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceeding.
Id. at 157 (internal quotation marks, citation, and brackets omitted). In other
w ords, “[n]ew substantive rules generally apply retroactively,” Schriro v.
Summerlin, 542 U.S. 348, 351 (2004), but “[n]ew rules of procedure . . . generally
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do not,” id. at 352. The type of rule at issue here— allocating fact-finding for
sentencing purposes— is procedural. See id. at 353 (“Rules that allocate
decisionmaking authority in this fashion [requiring that a jury rather than a judge
find the essential facts bearing on capital punishment] are prototypical procedural
rules.”). And it is not a watershed procedural rule. See M ora, 293 F.3d at 1218-
19 (Apprendi is not retroactive because “it is a rule that simply shifts the fact-
finding duties from an impartial judge to a jury” (internal quotation marks
omitted)); see also Bellam y, 411 F.3d at 1188 (Booker is not retroactive).
Because M r. Christensen has not “made a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(1), we DENY a COA and
DISM ISS the appeal.
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