An Untimely Appeal Under 28 U.S.C. § 2255

United States v. Salazar, No. 19-1119 (10th Cir. Aug. 16, 2019).

Issue: Defendants may appeal a sentence under 28 U.S.C. § 2255 but, with limited exceptions, must do so within one year.  The defendant was sentenced on March 20, 2017 and appealed his sentence in January 2019.  The defendant argued that because the statute was recently found unconstitutional, he was entitled to a newly recognized right making his appeal timely.  Was the defendant’s motion timely? 

Answer: No.  The defendant failed to show the denial of a constitutional right because, even assuming a newly recognized right was created, it is not retroactive because a nonessential procedural rule was implicated. 

Facts: The defendant was on supervised release for failing to register as a sex offender when his parole office filed a superseding petition alleging, he had committed five supervised release violations under 18 U.S.C. § 3583(k).  His conviction became final on March 20, 2017. In January 2019, the defendant filed a motion to vacate the conviction under 28 U.S.C. § 2255, but the district court denied the defendant’s motion, concluding that it was untimely and did not satisfy any applicable exceptions. The Supreme Court then decided United States v. Haymond, which held that 18 U.S.C. § 3583(k)—the statute under which Defendant was convicted—was unconstitutional.

Discussion: Under § 2255(f)(3), the one-year period statutory time to file suit shall run “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”  Therefore, if the court recognized that Supreme Court precedent recognized a new right, then Defendant’s appeal would be timely. 

The court applied a three-step inquiry to determine if a new right is retroactively applicable.  The defendant’s argument failed the third step because even assuming it was a new rule, it did not fall “within either of the two narrow exceptions to nonretroactivity.”  The two narrow exceptions apply “only if (1) the rule is substantive or (2) the rule is watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”  

In Haymond, the United States Supreme Court held § 3583(k) was unconstitutional because it violated defendants’ Fifth and Sixth Amendment rights.  Here, the 10th Circuit held that Haymond does not satisfy § 2255(f)(3) because Haymond announced a nonessential procedural rule not a substantive rule.  The court viewed the rule as nonessential because it “does not itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.”  Thus, the defendant’s motion was untimely. 

Key Authorities:

28 U.S.C. § 2255 (West 2008).

18 U.S.C. § 3583(k) (2016).

United States v. Haymond, 139 U.S. 2369 (2019).

Teague v. Lane, 489 U.S. 288 (1989).

Alleyne v. United States, 570 U.S. 99 (2013).