United States v. Schubert

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 10, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-6059
(D.C. Nos. 5:18-CV-00642-F &
ALLAN DOUGLAS SCHUBERT, 5:16-CR-00005-F-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.
_________________________________

Allan Schubert, appearing pro se,1 seeks a certificate of appealability (COA) under

28 U.S.C. § 2253(c) to contest the district court’s denial of his motion to vacate under

28 U.S.C. § 2255. Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and

dismiss this matter.

BACKGROUND

In 2016, Schubert pleaded guilty to possession of a firearm by a felon in violation

of 18 U.S.C. § 922(g)(1). The district court concluded Schubert had four prior violent


This order is not binding precedent except under the doctrines of law of the case,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.
1
Because Schubert is pro se, we construe his filings liberally but do not act as his
advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
convictions for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e):

(1) armed robbery in Illinois, to which he pleaded guilty in 1993; (2) assault with a

dangerous weapon in Oklahoma, to which he pleaded guilty in 2002; (3) assault and

battery in Oklahoma, to which he pleaded guilty in 2002; and (4) feloniously pointing a

firearm in Oklahoma, to which he pleaded guilty in 2007. Because Schubert had at least

three qualifying offenses under the ACCA, the court imposed the mandatory minimum of

180 months’ imprisonment.

On appeal, Schubert declined to contest his prior Illinois conviction but argued his

three prior Oklahoma convictions were not qualifying offenses under the ACCA. United

States v. Schubert, 694 F. App’x 641, 645 (10th Cir. 2017). We agreed the conviction for

feloniously pointing a firearm was not a qualifying offense, but we rejected his challenge

to the two other Oklahoma convictions, which, combined with his Illinois conviction, left

him with three qualifying offenses. Id. at 645-47. Accordingly, we held his sentence was

properly enhanced under the ACCA, id. at 647, and we affirmed the judgment, id. at 649.

Thereafter, Schubert filed his § 2255 motion, claiming: (1) he received ineffective

assistance of counsel;2 (2) his guilty plea was invalid; (3) the government failed to carry

its burden of proving the prior convictions, and this court, on direct appeal, failed to

2
Specifically, Schubert alleged his attorney failed to: (1) object to the Illinois
conviction as a qualifying prior offense; (2) move to suppress the firearm; (3) determine
whether the Oklahoma convictions in 2002 were “non-violent charges” based on a plea
agreement; (4) pursue mitigating circumstances; (5) pursue a favorable plea bargain;
(6) disclose the option of a separate determination of guilt and sentencing; and (7) argue
the indictment failed to reference 18 U.S.C. § 924(e) or the potential punishment. He
also alleged cumulative ineffective assistance. Schubert later withdrew his allegation that
his attorney failed to pursue a favorable plea bargain.
2
conduct plain error review to determine whether the Illinois conviction was a qualifying

offense; (4) his sentence was unreasonable; (5) the district court lacked jurisdiction to

sentence him under the ACCA; (6) the ACCA was an unconstitutional bill of attainder;

and (7) the ACCA was an unconstitutional ex post facto law. After finding the first four

claims were without merit and the final three claims were procedurally defaulted, the

district court denied the § 2255 motion and denied a COA.

DISCUSSION

I. Standard of Review

“The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,

1241 (10th Cir. 2010). To obtain a COA, Schubert must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For his claims denied on the

merits, he must show “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

And for his claims denied as procedurally defaulted, he must show reasonable jurists

“would find it debatable” both (1) “whether the petition states a valid claim of the denial

of a constitutional right”; and (2) “whether the district court was correct in its procedural

ruling.” Id.

II. Analysis

A. Abandoned Claims

In his opening brief, Schubert failed to address: (1) any of the bases for his claim

of ineffective assistance of counsel except for his contention that his attorney failed to

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challenge the Illinois conviction as a qualifying offense under the ACCA; (2) his claim

that his guilty plea was invalid; and (3) his contention that we should have conducted

plain error review on direct appeal to determine whether the Illinois conviction was a

qualifying offense. We decline to address these issues. See United States v. Springfield,

337 F.3d 1175, 1178 (10th Cir. 2003) (declining to address a claim raised in a § 2255

motion that was not included in the COA application or brief to this court); see also

Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (noting that “[a]rguments not clearly

made in a party’s opening brief are deemed waived” and that this applies even to pro se

litigants who “are entitled to liberal construction of their filings”).

B. Claims Denied on the Merits

i. Whether Schubert Received Ineffective Assistance of Counsel

Schubert contends his counsel was constitutionally ineffective because he failed to

object to the Illinois conviction as a qualifying offense under the ACCA. For this claim,

he must show: (1) “his counsel’s representation fell below an objective standard of

reasonableness,” and (2) “a reasonable probability that, but for the counsel’s error, the

result of the proceeding would have been different.” United States v. Challoner,

583 F.3d 745, 749 (10th Cir. 2009) (internal quotation marks omitted). The district court

found Schubert failed to show either deficient performance or prejudice.

Schubert first contends the record does not identify the statute or the elements of

the Illinois offense, “which the court needs to make a determination” under the ACCA.

Aplt. Opening Br. at 4. But at sentencing, Schubert’s counsel explained he was not

objecting to the Illinois conviction because of “circuit cases that ha[d] actually analyzed

4
that statute and [found] that they [did] qualify for purposes of the [ACCA].” R. Vol. 1 at

60 (emphasis added). And in an affidavit filed in the § 2255 proceeding, Schubert’s

counsel clarified: (1) he requested and obtained records regarding the Illinois conviction;

(2) those records cited the statute as “paragraph 18-2(a), Chapter 38, Illinois Revised

Statutes”; and (3) he reviewed that statute and “the elements” listed for armed robbery.

Id. at 165-66.3

Although Schubert insists his “conviction was for ‘Strong Arm Robbery’ and not

Armed Robbery or plain robbery,” Aplt. Opening Br. at 3, he has offered only conclusory

statements and no factual support for this assertion. The record, on the other hand, shows

that both his attorney and the prosecutor referred to the conviction as “armed robbery.”

R. Vol. 1 at 28, 41. The Presentence Investigation Report (PSR), adopted by the district

court, identified the offense as “Armed Robbery” in addition to providing the case

number and summarizing the facts from the charging document, R. Vol. 2 at 32. And

despite personally addressing the court during the sentencing hearing, Schubert never

disputed the characterization of the Illinois offense as an armed robbery. Moreover,

although he insists “[t]he statutory elements” of “strong arm robbery” are different from

those of robbery or armed robbery, Aplt. Opening Br. at 3, the Illinois statutes in effect

when he committed his offense in 1992 provided for the offenses of robbery and armed

robbery, with no mention of “strong arm robbery.” See Ill. Rev. Stat. 1991, ch. 38,

¶ 18-1(a) (“A person commits robbery when he takes property from the person or

3
The statutes for robbery and armed robbery have been re-codified at 720 Ill.
Comp. Stat. 5/18-1 and -2, respectively.
5
presence of another by the use of force or by threatening the imminent use of force.”); id.

¶ 18-2(a) (“A person commits armed robbery when he or she violates Section 18-1 while

he or she carries on or about his or her person, or is otherwise armed with a dangerous

weapon.”).

Finally, Schubert challenges the case law cited by both the district court and his

attorney for the proposition that the Illinois conviction was a qualifying offense under the

ACCA. Specifically, Schubert’s attorney stated in an affidavit that: (1) prior to deciding

whether to challenge the Illinois conviction, he reviewed United States v. Watson-El,

376 F. App’x 605, 608 (7th Cir. 2010), which found an argument that “prior convictions

in Illinois for robbery . . . are not violent felonies” to be “frivolous”; and (2) he, therefore,

“exercise[d] his professional judgment in determining which prior convictions to

challenge” and opted not to challenge the Illinois conviction. R. Vol. 1 at 166-67

(internal quotation marks omitted). Schubert’s counsel also noted that, shortly after

Schubert’s sentencing, a district court in Adams v. United States, No. 16-1096, 2016 WL

4487835, at *3 (C.D. Ill. Aug. 25, 2016), “ruled armed robbery under Illinois law is a

crime of violence for purposes of the [ACCA].” Id. at 166.

Based on Watson-El, the district court found Schubert’s counsel was not deficient

in failing to object to the conviction. See United States v. Holloway, 939 F.3d 1088, 1103

(10th Cir. 2019) (“To be constitutionally deficient, counsel’s performance must have

been completely unreasonable, not merely wrong, so that it bears no relationship to a

possible defense strategy.” (internal quotation marks omitted)). And based on both

Watson-El and Adams, the court found Schubert could not establish prejudice because an

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objection would have failed. See Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir.

2006) (noting there can be no prejudice in failing to raise a meritless argument).

Schubert counters that Watson-El and Adams were decided long after his 1993

conviction and, thus, offer little value “as precedent” for purposes of his conviction.

Aplt. Opening Br. at 5. But the prior armed robbery conviction at issue in Adams

occurred in 1981, see Adams, 2016 WL 4487835, at *3, and the defendant in Watson-El

was convicted of robbery in 1993 and attempted armed robbery in 1997.4 Moreover, in a

recent consolidated appeal addressing robbery convictions spanning four decades,

including several contemporaneous with Schubert’s conviction, the Seventh Circuit

reaffirmed its view that robbery and armed robbery in Illinois are qualifying offenses

under the ACCA. See Klikno v. United States, 928 F.3d 539, 547-50 (7th Cir. 2019).

Accordingly, Schubert has failed to show reasonable jurists would find debatable the

district court’s ruling on his claim of ineffective assistance of counsel.

ii. Whether the Government Failed to Prove a Qualifying Offense

Next, Schubert contends the district court erred in denying his claim that the

government failed to carry its burden of proving that his Illinois conviction was a

qualifying offense under the ACCA and, thus, that he had three prior qualifying offenses

4
Although not stated in the Seventh Circuit’s opinion, district court filings in
Watson-El confirm the dates of these convictions. See, e.g., Def. George Watson-El’s,
Addition to Att’y’s Sent’g Mem. at 31-32, United States v. Watson-El, No. 1:04-cr-00131
(N.D. Ill. Aug. 20, 2008), ECF No. 102. It is well-settled that “we may exercise our
discretion to take judicial notice of publicly-filed records in our court and certain other
courts concerning matters that bear directly upon the disposition of the case at hand.”
United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
7
for an enhanced sentence. The district court declined the government’s request to deem

the claim procedurally defaulted but found the claim lacked merit.

Schubert correctly notes the government has the burden of proving “‘that an

enhancement is appropriate,’” Aplt. Opening Br. at 13-14 (quoting United States v.

Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997)), and that “‘a past offense qualifies as an

ACCA predicate,’” id. at 14 (quoting United States v. Titties, 852 F.3d 1257, 1264-65

(10th Cir. 2017)). However, “[a]bsent an objection to the PSR, the district court may

accept any undisputed portion of the presentence report as a finding of fact.” United

States v. Harris, 447 F.3d 1300, 1306 (10th Cir. 2006) (internal quotation marks

omitted).

Because Schubert did not object to the Illinois conviction, the court was permitted

to adopt the PSR’s description of the offense. See id. And in its order, the district court

found that its analysis with respect to Schubert’s ineffective-assistance claim applied with

equal force to this claim. Schubert has not demonstrated otherwise. Accordingly, he has

failed to show reasonable jurists would debate the district court’s ruling on this claim.

iii. Whether the District Court Abused Its Discretion During Sentencing

Schubert next claims that the district court “abused [its] discretion in going outside

of the guidelines and imposing a variant sentence, without specifying [its] reasons,

without any aggravating circumstances, and without the expression of justification—on

the record—for the excessive, i.e., enhanced sentence.” Aplt. Opening Br. at 15. The

district court declined the government’s request to deem this claim procedurally defaulted

but nevertheless found the claim lacked merit.

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 As the court observed, Schubert received “the mandatory minimum,” and “[g]iven

that the defendant was subject to the ACCA” and “there were no assistance-related

considerations for defendant” under 18 U.S.C. § 3553(e), “the court could not have

imposed a lower sentence.” R. Vol. 1 at 229. Although Schubert “asserts that the

sentence of fifteen (15) years for simple possession of a firearm—with nothing more—

was unreasonable,” Aplt. Opening Br. at 15, there was something more—his three prior

qualifying offenses under the ACCA. And to the extent he argues the court failed to state

on the record its reasons for imposing the sentence “as was required by the statute,” id.

(emphasis added), a COA can be granted only for “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2) (emphasis added), not a statutory claim,

see United States v. Taylor, 454 F.3d 1075, 1078-79 (10th Cir. 2006). Accordingly,

Schubert has failed to satisfy his burden for a COA on this claim.

iv. Claims Denied as Procedurally Defaulted

Finally, the district court deemed procedurally defaulted Schubert’s claims that:

(1) the “court was without authority and jurisdiction to impose the aggravated

punishment because the potential ACCA punishment was not alleged in the indictment”;

(2) the ACCA is an unconstitutional bill of attainder; and (3) the ACCA is an

unconstitutional ex post facto law. R. Vol. 1 at 230-31. The court found that Schubert

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should have raised these issues on direct appeal and that he failed to show either cause

and prejudice or a fundamental miscarriage of justice in order to excuse the default.5

In his brief, Schubert has repeated the arguments he made below but has failed to

address the district court’s ruling that the claims were procedurally defaulted. Schubert,

therefore, has not shown that reasonable jurists “would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

CONCLUSION

We deny Schubert’s request for a COA and dismiss the matter. We grant his

motion to proceed in forma pauperis.

Entered for the Court

Allison H. Eid
Circuit Judge

5
The court alternatively found the jurisdictional claim was without merit based on
United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (holding “the government
need not charge the ‘fact’ of a prior conviction in an indictment and submit it to a jury”).
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