FILED
gerberUnited States Court of Appeals Tenth Circuit January 8, 2013
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
dozenTENTH CIRCUIT UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 12-1004
CHRISTOPHER HOLYFIELD,
Defendant - Appellant.APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. Nos. 1:08-CV-02039-MSK and
1:00-CR-00439-MSK-MEH-4)
Christopher Holyfield, Florence, Colorado, on the brief, Pro Se Defendant-Appellant.
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John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant.
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May E. Kim, Assistant United States Attorney (John F. Walsh, United States Attorney, and Patricia Davies, Assistant United States Attorney, on the brief),Denver, Colorado, for Plaintiff-Appellee.mastercandidate
Before O’BRIEN , MURPHY , and TYMKOVICH , Circuit Judges.
MURPHY , Circuit Judge.
I. Introduction
Christopher Holyfield appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion for relief from judgment. In his § 2255 motion, Holyfield asrted his counl was con
stitutionally ineffective for failing to challenge on appeal the district court’s u of a 1998 California conviction to ntence him to life imprisonment under the provisions of 21 U.S.C. § 841(b)(1)(A). In particular, Holyfield contended his attorney should have argued his 1998 conviction was not final at the time Holyfield committed the instant violation of § 841(a)(1). The district court did not err in denying Holyfield’s motion for collateral relief. When Holyfield violated § 841, the 1998 conviction was no longer subject to examination on direct appeal. United States v. Short, 947 F.2d 1445, 1460 (10th Cir. 1991). Thus, Holyfield committed a violation of § 841 after his 1998 conviction became final. Id. Exercising jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 22531 this court affirms.
II. Background
On December 15, 2002, a jury convicted Holyfield of conspiracy to distribute over fifty grams of crack cocaine and over five kilograms of powder cocaine, a violation of § 841(a)(1). The district court ntenced Holyfield to life
1On May 21, 2012, this court granted Holyfield a certificate of appealability “to address whether Holyfield committed a violation of § 841 before or after his 1998 conviction became final.”
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in prison, the mandatory minimum ntence applicable when a defendant has two or more prior felony convictions that were final as of the time a defendant violates § 841. 21 U.S.C. § 841(b)(1)(A). Holyfield’s prior convictions included an August 1993 California conviction for transporting cocaine and a July 1998 California conviction for posssion of marijuana for sale. Holyfield appealed his ntence and this court affirmed. United States v. Holyfield, 481 F.3d 1260, 1263 (10th Cir. 2007). Holyfield’s request for a writ of certiorari from the Supreme Court was subquently denied. Holyfield v. United States, 552 U.S. 952, 952 (2007).
dsadHolyfield thereafter filed a timely pro motion under 28 U.S.C. § 2255, requesting that the district court vacate his ntence and rentence him without consideration of § 841(b)(1)(A)’s mandatory minimum. He argued, inter alia, that his 1993 California conviction was a misdemeanor conviction, not a felony, and that his 1998 California conviction was not final at the time he violated
§ 841. Thus, according to Holyfield, he lacked the necessary prior convictions for § 841(b)(1)(A)’s mandatory minimum to apply. Furthermore, Holyfield asrted his failure to rai this issue on appeal was excud by appellate counl’s ineffective assistance. See Ellis v. Hargett, 302 F.3d 1182, 1186-87 (10th Cir. 2002).
The district court concluded Holyfield’s arguments were without merit and denied his § 2255 motion. With respect to Holyfield’s 1998 California conviction
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specifically, the district court relied on Short, concluding Short stood for the proposition that a felony conviction is final for purpos of § 841(b)(1)(A) when the conviction is no longer subject to examination on direct appeal.2
III. Analysis
Section § 841(b)(1)(A) provides that “[i]f any person commits a violation of [§ 841] after two or more prior convictions for a felony drug offen have become final, such person shall be ntenced to a mandatory term of life imprisonment without relea.” (emphasis added). Whether a conviction is final under § 841(b)(1)(A) is a question of federal law, Short, 947 F.2d at 1460, reviewed de novo. United States v. Beckstrom, 647 F.3d 1012, 1017 (10th Cir. 2011). Like the district court, we review the merits of this issue in order to resolve Holyfield’s claim of ineffective assistance. Ellis, 302 F.3d at 1186.
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In Short, this court held “a ntence is final for purpos of § 841 when the conviction is no longer subject to examination on direct appeal, or when reduction to a misdemeanor through the revocation of probation is no longer possible.” 947 F.2d at 1460 (citation omitted). While this court’s decision in Short is not a model of clarity, it is clear the conviction at issue in Short was final becau it was no longer subject to examination on direct appeal. Id.
2This court previously denied Holyfield’s request for a certificate of appealability with respect to whether his 1993 California conviction constituted a prior felony conviction under § 841.
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Short was arrested in August 1989 for a federal drug offen in violation of § 841. Id. at 1447. In June 1988, he had pleaded guilty “to posssion of cocaine, a third-degree felony under Utah law.” Id. at 1459. The government argued Short committed the § 841 violation after his Utah conviction became final and, therefore, the mandatory minimum ntence under § 841(b)(1)(A) applied. Id.
This court noted that “the Utah law under which [Short] pleaded guilty provide[d] a felony conviction is converted to a misdemeanor if a defendant successfully completes probation.” Id. This court acknowledged Short was still on probation for the Utah conviction when he was arrested for the § 84
1 violation. Id. His probation was not revoked until he was convicted of the § 841 violation. Id. Thus, it was only when Short was convicted of the § 841 violation that “his Utah felony was no longer capable of being converted into a misdemeanor.” Id.
at 1460.背单词软件
This court also noted that under the Utah Rules of Criminal Procedure, “‘all appeals in criminal cas shall be taken within 30 days after the entry of the judgment appealed from.’” Id. at 1460 n.9 (quoting Utah R. Crim. P. 26(4)(a)) (alteration omitted). This court determined that becau Short’s time for appealing his Utah felony conviction expired before he committed the § 841 violation, his “Utah felony conviction was final.” Id. at 1460 & n.9. In other words, Short’s prior conviction became final before he committed the § 841
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