United States v. Elliott
21-8016
| 10th Cir. | Jul 14, 2021Background
- In 2014 Joel S. Elliott set fire to a Sheridan County building used by the County Attorney; he was convicted of arson under 18 U.S.C. § 844(f), a § 924(c) firearms offense, and other charges, and sentenced to 444 months (largely a mandatory consecutive 360 months under § 924(c)).
- The Tenth Circuit affirmed his convictions on direct appeal and denied relief on his first § 2255 motion and subsequent Rule 60 motions as unauthorized successive petitions.
- After the Supreme Court decided United States v. Davis, Elliott obtained authorization to file a second/successive § 2255 motion limited to Davis-based arguments (challenging the § 924(c) residual clause).
- The district court addressed only the Davis question and found Elliott’s arson predicate (§ 844(f)) satisfied the § 924(c)(3)(A) elements clause (physical force against property of another), making any Davis defect harmless; it denied the successive motion and COA.
- The Tenth Circuit denied Elliott’s application for a Certificate of Appealability, denied appointment of counsel, and denied other ancillary motions, concluding reasonable jurists could not debate the elements-clause holding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether arson under § 844(f) is a "crime of violence" under § 924(c)(3)(A) (elements clause) | Elliott: § 844(f) criminalizes damage to "any building," potentially including one’s own property, so it may not require force "against the property of another." | Government/District Ct: § 844(f) applies only to buildings owned/possessed by federal or federally funded entities, so it necessarily involves force against another’s property; setting fire uses physical force. | Court: § 844(f) satisfies the elements clause; arson is a crime of violence; COA denied. |
| Whether Davis (invalidating the residual clause) requires vacatur of Elliott’s § 924(c) conviction | Elliott: Davis removes the residual-clause predicate and thus may invalidate his § 924(c) conviction. | Government/District Ct: Only residual clause invalidated; the elements clause remains and is met by § 844(f), so any Davis infirmity is harmless. | Court: District court properly limited review and correctly found harmlessness. |
| Whether a Certificate of Appealability should issue | Elliott: The legal question is debatable and merits appellate review. | Government: Elliott must make a substantial showing of a constitutional violation; reasonable jurists could not debate the elements-clause conclusion. | Court: COA denied. |
| Whether counsel should be appointed on appeal | Elliott: Requested appointed counsel. | Government/Court: Consider complexity, merit, and Elliott’s ability to present claims; issues are uncomplicated and Elliott litigated capably. | Court: Appointment of counsel denied. |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court invalidating § 924(c)(3)(B) residual clause for vagueness)
- United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019) (held Davis is retroactive on collateral review; applied categorical approach)
- United States v. Doggart, 947 F.3d 879 (6th Cir. 2020) (held intentional setting of fire uses physical force for elements-clause purposes)
- United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013) (arson qualifies as a violent offense under elements clause)
- Mbea v. Gonzalez, 482 F.3d 276 (4th Cir. 2007) (fire is a physical force; malicious arson uses force against property)
- United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009) (explaining the categorical approach for predicate-offense analysis)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for granting a Certificate of Appealability)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA requires more than absence of frivolity; debatability standard)
- Rucks v. Boergermann, 57 F.3d 978 (10th Cir. 1995) (factors to consider when appointing counsel in habeas proceedings)