United States v. Wilfong
705 F. App'x 672
| 10th Cir. | 2017Background
- In 2011 Wilfong was convicted of possession of a firearm by a felon (18 U.S.C. § 922(g)(1)) and later sentenced under the ACCA to 300 months after the district court treated prior convictions as ACCA predicates.
- The Probation Office identified four prior convictions as predicates: one federal § 844(e) (bomb/threat by phone) conviction, one Oklahoma larceny-from-a-person conviction, and two state assault-with-a-dangerous-weapon convictions.
- On direct appeal (2013) this court affirmed; Wilfong conceded the two assault convictions were violent felonies, and this court held the larceny conviction qualified under the ACCA residual clause; the panel did not decide whether the § 844(e) conviction qualified under the elements clause.
- After Johnson v. United States (2015) invalidated the ACCA residual clause and the Supreme Court made that retroactive in Welch (2016), Wilfong filed a § 2255 motion (Mar. 4, 2016) arguing Johnson entitled him to relief and raising for the first time an ineffective-assistance-of-appellate-counsel claim for failing to challenge the court’s reliance on presentence-report facts to classify the § 844(e) conviction.
- The government conceded that the larceny predicate no longer counted post-Johnson but argued Wilfong’s § 2255 claims were untimely because the sentencing court had treated the § 844(e) conviction as a violent felony under the elements clause (not the residual clause). The district court denied relief as time-barred and denied a COA; this court initially denied a COA, then on rehearing granted a partial COA limited to the ineffective-assistance claim and ordered further briefing.
- On appeal the Tenth Circuit affirmed: Wilfong’s § 2255 motion (including the ineffective-assistance claim) was untimely, Johnson did not help because the sentencing court had relied on the elements clause for the § 844(e) conviction, and Wilfong’s Suspension Clause argument (raised later) fails on plain-error review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of § 2255 motion | Wilfong: Johnson-created right (residual-clause invalidation) permits filing under § 2255(f)(3) | Govt: Johnson does not supply a new right relevant to Wilfong because the sentencing court relied on the elements clause for the § 844(e) conviction; motion filed after § 2255 deadline | Motion untimely; Johnson does not provide relief because the elements-clause finding insulated the § 844(e) conviction from Johnson |
| Sufficiency of ACCA predicates | Wilfong: § 844(e) not a violent felony; larceny fails post-Johnson | Govt: two assaults + larceny (pre-Johnson) supplied three predicates; even without larceny, assaults qualify under elements clause | Two assault convictions qualify under elements clause; larceny conceded by Govt to be invalid post-Johnson but not dispositive because assaults suffice |
| Ineffective-assistance-of-appellate-counsel claim timing | Wilfong: Counsel’s failure to challenge sentencing court’s use of PSR facts prejudiced him, but prejudice could only be shown after Johnson; claim therefore should be considered under § 2255(f)(3) or Suspension Clause | Govt: Claim is untimely under § 2255(f)(1); Johnson does not revive it because it did not change the elements-clause analysis; alternative: forfeited or procedurally defaulted | Claim is untely; court affirms district court that § 2255 motion and ineffective-assistance claim are time-barred |
| Suspension Clause challenge to § 2255 time bar | Wilfong: Applying the one-year limit here effectively suspends habeas because he could not show Strickland prejudice until after Johnson but by then the limitations period had expired | Govt: § 2255’s limitations do not render habeas inadequate or ineffective; Congress may set scope; Wilfong bears burden to show inadequacy | Suspension Clause argument fails on plain-error review; no clear/obvious precedent to show plain error and Wilfong did not meet the burden |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidating ACCA residual clause as void for vagueness)
- Welch v. United States, 578 U.S. 120 (2016) (holding Johnson retroactive to cases on collateral review)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel: deficiency and prejudice)
- Felker v. Turpin, 518 U.S. 651 (1996) (judgments about scope of writ normally for Congress; habeas limitations not always Suspension Clause violations)
- Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) (habeas remedy inadequate or ineffective standard under the Suspension Clause)
- United States v. Burch, 202 F.3d 1274 (10th Cir. 2000) (finality of conviction after direct appeal when certiorari not filed)