FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 16-5167
(D.C. Nos. 4:16-CV-00540-CVE-FHM
v. and 4:12-CR-00016-CVE-1)
(N.D. Oklahoma)
LESLIE SUSAN HARRISON,
Defendant - Appellant.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Leslie Susan Harrison, a federal prisoner proceeding pro se,1 seeks a certificate
of appealability (COA) to challenge the district court’s denial of her 28 U.S.C.
§ 2255 application. Ms. Harrison also requests leave to proceed in forma pauperis.
Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that reasonable jurists
would not find it debatable whether the district court was correct in denying
*
This order is not binding precedent, except under the doctrines of law of the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 Ms. Harrison is proceeding pro se, we construe her filings liberally.
See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). “[T]his rule of liberal
construction stops, however, at the point at which we begin to serve as [her]
advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
Ms. Harrison’s § 2255 motion as untimely. Accordingly, we deny the COA, grant the
motion to proceed in forma pauperis, and dismiss the appeal.
I. BACKGROUND
Following a jury trial in June 2012, Ms. Harrison was found guilty of
conspiracy to manufacture and distribute fifty or more grams of methamphetamine.
See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. The district court sentenced Ms.
Harrison to 360 months’ imprisonment, and she appealed to this court. We vacated
the sentence and remanded for resentencing. United States v. Harrison, 743 F.3d 760
(10th Cir. 2014). On remand, the district court sentenced Ms. Harrison to 136
months’ imprisonment. Ms. Harrison again appealed, but on January 30, 2015, we
affirmed her sentence. See United States v. Harrison, 591 F. App’x 684 (10th Cir.
2015) (unpublished). Ms. Harrison did not seek rehearing or file a petition for writ of
certiorari.
On August 15, 2016, Ms. Harrison filed a motion to vacate, set aside, or
correct her sentence pursuant to 28 U.S.C. § 2255 and Amendment 794 of the United
States Sentencing Commission Guidelines Manual. The district court first denied the
motion as untimely, concluding Ms. Harrison’s time to file a § 2255 motion expired
on April 30, 2016. Second, the court concluded Amendment 794 is “not retroactive
under the sentencing guidelines, federal statutes, or Tenth Circuit precedent” and
“may not serve as the basis on which to reduce [Ms. Harrison’s] sentence.” Ms.
Harrison timely appealed.
2
II. ANALYSIS
Ms. Harrison seeks a COA to challenge the district court’s order denying her
28 U.S.C. § 2255 petition as untimely. “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). Where, as here, the
district court’s decision rests on procedural grounds, we will issue a COA only if the
petitioner “demonstrate[s] both 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.’” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because we conclude jurists of reason
would not find it debatable whether the district court was correct in its procedural
ruling, we need not decide whether the petition states a valid claim of the denial of a
constitutional right.
The district court ruled the § 2255 motion untimely under 28 U.S.C. § 2255(f).
This section establishes a one-year statute of limitations for filing a § 2255 motion,
running from the latest of four possible dates. 28 U.S.C. § 2255(f)(1)–(4). The
district court determined § 2255(f)(1) applied to Ms. Harrison’s motion—the date of
the final judgment of conviction. If a petitioner does not file a petition for writ of
certiorari with the United States Supreme Court after her direct appeal, the judgment
becomes “final” and the one-year clock starts when “the time for filing a certiorari
petition expires.” United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000). The
3
time for filing a petition for writ of certiorari expires ninety days after entry of the
judgment. Sup. Ct. R. 13.1. Because Ms. Harrison did not file a petition for writ of
certiorari, her one-year clock began running on April 30, 2015, ninety days after we
affirmed her sentence on January 30, 2015. Thus, her time to file a § 2255 motion
expired on April 30, 2016. She did not file her motion until August 15, 2016, which
was untimely.
In seeking a COA, Ms. Harrison does not dispute that her § 2255 motion was
untimely under § 2255(f)(1), but contends the district court erred in failing to
consider her motion under § 2255(f)(4), which provides that the statute of limitations
begins to run on “the date on which the facts supporting the claim . . . could have
been discovered through the exercise of due diligence.” 28 U.S.C. § 2254(f)(4). She
claims that Amendment 794 of the United States Sentencing Commission Guidelines
Manual constitutes a “new fact” not discovered until the date the amendment went
into effect—November 1, 2015—and accordingly, her petition was timely filed
because it was filed before November 1, 2016.
But Ms. Harrison cites no authority to support her assertion that an amendment
to the sentencing guidelines constitutes a “fact” that would reset the one-year statute
of limitations under § 2255(f)(4). A change or clarification of controlling law is not a
“fact” within the meaning of § 2255(f)(4). See Barreto-Barreto v. United States, 551
F.3d 95, 99 n.4 (1st Cir. 2008) (“[T]he discovery of a new legal theory does not
constitute a discoverable ‘fact’ for purposes of § 2255(f)(4).”); Lo v. Endicott, 506
F.3d 572, 575 (7th Cir. 2007) (state supreme court’s clarification of the law is not a
4
“factual predicate” under § 2255(f)(4)); E.J.R.E. v. United States, 453 F.3d 1094,
1097–98 (8th Cir. 2006) (a federal court of appeals decision is not a discoverable fact
under § 2255(f)(4)); Shannon v. Newland, 410 F.3d 1083, 1088–89 (9th Cir. 2005)
(state supreme court’s decision is not a “fact” entitling application of § 2255(f)(4));
United States v. Pollard, 161 F. Supp. 2d 1, 10 (D.D.C. 2001) (concluding
§ 2254(f)(4) “is only triggered when a defendant discovers facts, not the legal
consequences of those facts”); United States v. Hines, 592 F. App’x 755, 756 (10th
Cir. 2015) (unpublished) (holding a Supreme Court decision “does not constitute a
newly discovered fact under § 2255(f)(4)”).
An exception to this rule, as detailed in Johnson v. United States, provides that
the vacatur of a prior conviction enhancing a defendant’s sentence is a “fact” under
§ 2255(f)(4) that resets the statute of limitations. 544 U.S. 295, 302 (2005); cf.
United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996) (“If a defendant successfully
attacks state sentences, he may then apply for reopening of any federal sentence
enhanced by the state sentences.”).
Here, the district court found Ms. Harrison did not “identify any facts that
could not be discovered until months after her sentence was finalized,” and “all the
facts related to her sentence were necessarily available at her resentencing in 2014.”
Amendment 794 to the sentencing guidelines is not a “fact” relating to Ms.
Harrison’s criminal history and does not otherwise allow her to invoke § 2254(f)(4).
United States v. Bazaldua, Nos. 06-CR-0100 (JNE/JSM) & 16-CV-2479 (JNE), 2016
WL 5858634, at *1 (D. Minn. Oct. 5, 2016) (unpublished) (“Amendment 794 to the
5
Sentencing Guidelines . . . is not a basis for Bazaldua to invoke § 2255(f)(4).”).
Therefore, because we conclude reasonable jurists could not debate whether the
district court correctly applied the date of the final judgment of conviction, see 28
U.S.C. § 2255(f)(1), we deny Ms. Harrison a COA.2
As a final matter, we turn to Ms. Harrison’s motion to proceed in forma
pauperis on appeal. After reviewing Ms. Harrison’s affidavit in support of her
motion, we conclude she has demonstrated “a financial inability to pay the required
fees and the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 812 (10th Cir. 1997) (internal quotation marks omitted). We therefore grant her
request to proceed in forma pauperis on appeal.
CONCLUSION
Reasonable jurists could not debate whether the district court correctly
dismissed Ms. Harrison’s § 2255 petition as untimely. Accordingly, we DENY her
request for a COA and DISMISS the appeal. We also GRANT Ms. Harrison’s motion
to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
2
We do not address whether Amendment 794 should be retroactively applied
to Ms. Harrison’s sentence under 18 U.S.C. § 3582(c) because she has waived this
argument.
6