United States v. Greer, 881 F.3d 1241

Jason Greer was convicted of armed bank robbery (2002) and sentenced under the mandatory Sentencing Guidelines as a career offender based on prior Colorado convictions, including second-degree assault on a peace officer.
The district court treated Greer’s prior convictions as crimes of violence under U.S.S.G. § 4B1.2(a), and he received 188 months’ imprisonment; his judgment became final in 2005.
In Johnson v. United States, the Supreme Court (2015) invalidated the ACCA residual clause as unconstitutionally vague; Welch made Johnson retroactive on collateral review (2016).
Greer filed a successive § 2255 claim arguing Johnson also invalidates the identically worded residual clause in the mandatory Guidelines and that his sentence therefore requires resentencing; the district court denied relief, finding he was sentenced under the element (force) clause, not the residual clause.
The Supreme Court’s Beckles decision (2017) held the advisory Guidelines are not subject to vagueness challenges but left open whether mandatory Guidelines can be attacked for vagueness; Greer pressed that open question on appeal.
The Tenth Circuit affirmed, holding Greer’s Johnson-based challenge to the mandatory Guidelines is untimely because the Supreme Court has not recognized a new right (i.e., invalidation of the mandatory Guidelines’ residual clause) made retroactive on collateral review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Greer’s § 2255 Johnson-based challenge to the mandatory Guidelines’ residual clause is timely under 28 U.S.C. § 2255(f)(3)	Greer: Johnson’s invalidation of a similarly worded residual clause supports a timely collateral attack on his mandatory-Guidelines enhancement	Government: The Supreme Court has recognized no new right invalidating the mandatory-Guidelines residual clause; Johnson’s rule applies only to the ACCA residual clause, so § 2255(f)(3) does not apply	Held: Untimely. Greer did not assert a right recognized by the Supreme Court; collateral relief limited to rights the Supreme Court has newly recognized and made retroactive

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated the ACCA residual clause as unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson retroactive on collateral review)
Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Guidelines not subject to vagueness challenges; left open question re: mandatory Guidelines)
United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017) (timeliness analysis: invoking a newly recognized right can make § 2255 timely where record could show the clause applied)
United States v. Brown, 868 F.3d 297 (4th Cir. 2017) (challenge to mandatory-Guidelines residual clause is not a right recognized by Johnson for AEDPA purposes)
Davis v. McCollum, 798 F.3d 1317 (10th Cir. 2015) (Miller limitation—only the specific new right recognized by the Supreme Court can make a petition timely)
Dodd v. United States, 545 U.S. 353 (2005) (only the Supreme Court can recognize a new constitutional right for AEDPA purposes)
Chaidez v. United States, 568 U.S. 342 (2013) (definition of what constitutes a newly recognized rule)
Teague v. Lane, 489 U.S. 288 (1989) (limits on retroactive application of new rules in collateral review)