NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0388n.06
No. 17-3976
UNITED STATES COURT OF APPEALS
FILED
Aug 03, 2018
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
CHRISTOPHER L. PROWELL, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) NORTHERN DISTRICT OF
UNITED STATES OF AMERICA, ) OHIO
)
Respondent-Appellee. ) OPINION
)
BEFORE: COOK, STRANCH, and NALBANDIAN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Christopher Prowell appeals the district court’s
denial of his motion for resentencing brought pursuant to 28 U.S.C. § 2255. Because the relief
sought by Prowell is foreclosed by published circuit precedent, we AFFIRM.
I. BACKGROUND
In 1999, Christopher Prowell pled guilty to six counts of bank robbery, in violation of
18 U.S.C. § 2113(a) and (d), and one count of brandishing a firearm in commission of an armed
bank robbery, in violation of 18 U.S.C. § 924(c)(1). Prowell was designated a career offender
based, in part, on a 1994 Alabama conviction for third-degree burglary, which at that time
constituted a crime of violence. As a result, he received an enhanced sentence of 272 months of
imprisonment under then mandatory Guidelines.
In 2016, Prowell moved to vacate his sentence under 28 U.S.C. § 2255. He argued that his
Alabama burglary conviction was no longer a crime of violence in light of Johnson v. United
No. 17-3976, Prowell v. United States
States, 135 S. Ct. 2551, 2557 (2015), which held that the “residual clause” of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague. Citing our decision in Raybon v. United
States, 867 F.3d 625 (6th Cir. 2017), the district court denied Prowell’s § 2255 motion, holding
that it was untimely. The district court granted Prowell’s motion for a certificate of appealability
and this appeal followed.
II. ANALYSIS
A. Standard of Review
“On appeal from the denial of a § 2255 motion, we review legal conclusions de novo and
factual findings for clear error.” Howard v. United States, 743 F.3d 459, 463 (6th Cir. 2014)
(quoting Regaldo v. United States, 334 F.3d 520, 523–24 (6th Cir. 2003)).
B. Prowell’s § 2255 Motion
Section 2255 motions must be filed within one year of final judgment, or as is relevant
here, within one year of a Supreme Court decision recognizing the right asserted and making it
retroactively applicable to cases on collateral review. 28 U.S.C § 2255(f)(1), (3). Prowell argues
that his § 2255 motion is timely because it was filed within one year of the Supreme Court’s
decision in Johnson. This case requires that we determine the filing deadline applicable to
Prowell’s motion.
The governing law begins with the Supreme Court’s 2015 decision in Johnson. For a brief
period of time, the law of this circuit held that the identically worded provision of the Guidelines’
residual clause was also unconstitutionally vague. United States v. Pawlak, 822 F.3d 902, 903
(6th Cir. 2016). In Beckles v. United States, 137 S. Ct. 886, 890 (2017), however, the Supreme
Court held that the advisory sentencing Guidelines are not subject to a void for vagueness
challenge.
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No. 17-3976, Prowell v. United States
Because he was sentenced prior to United States v. Booker, 543 U.S. 220 (2005), and was
therefore subject to a mandatory Guidelines sentence, Prowell argues that his challenge is not
foreclosed by Beckles. See Beckles, 137 S. Ct. at 895 (“[W]e hold that the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the Due Process Clause and that
§ 4B1.2(a)’s residual clause is not void for vagueness.” (emphasis added)); id. at 903 n.4
(Sotomayor, J. concurring) (“The Court’s adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the question whether defendants sentenced to
terms of imprisonment before our decision in United States v. Booker . . . may mount vagueness
attacks on their sentences.”). If the mandatory sentencing Guidelines are subject to void for
vagueness challenges, Prowell argues, then the residual clause of the mandatory Guidelines is
unconstitutional for the same reasons articulated in Johnson. Prowell also notes that the Eleventh
Circuit has held that his third-degree burglary conviction does not constitute a crime of violence
under any of the ACCA’s crime of violence provisions. Mays v. United States, 817 F.3d 728 (11th
Cir. 2016); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014).
Prowell’s argument runs headlong into our published precedent. As he acknowledges, our
decision in Raybon considered and rejected precisely this challenge. 867 F.3d at 630. There, we
reasoned that because it is an “open question” whether a petitioner may mount a Johnson challenge
to a sentence imposed under the mandatory Guidelines, there has been no decision by the United
States Supreme Court recognizing a right that has been made retroactive. Id.; 28 U.S.C.
§ 2255(f)(3). And because no right has been recognized, Prowell’s § 2255 motion should have
been filed within one year of the district court’s entry of final judgment, rather than within one
year of the Johnson decision.
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No. 17-3976, Prowell v. United States
The district court entered judgment in Prowell’s case on December 21, 1999. Prowell did
not take a direct appeal, and the time to appeal the judgment expired 14 days later on January 4,
2000. Fed. R. App. P. 4(b)(1)(A)(i). His § 2255 motion needed to be filed within one year of that
date. 28 U.S.C. § 2255(f)(1); Raybon, 867 F.3d at 630–31. Prowell’s § 2255 motion filed on June
13, 2016 was untimely. Although Prowell urges that Raybon be revisited by the en banc court, we
cannot disregard published precedent absent a decision by the en banc court or intervening
Supreme Court precedent. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.
1985) (“[A] prior decision remains controlling authority unless an inconsistent decision of the
United States Supreme Court requires modification of the decision or this Court sitting en banc
overrules the prior decision.”).
III. CONCLUSION
Under our binding precedent, Prowell’s § 2255 motion was untimely. We therefore
AFFIRM the decision of the district court denying Prowell’s motion for resentencing.
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