United States v. Griego.
No. 25-2085. 10/14/2026. D.N.M. Judge Tymkovich. Certificate of Appealability—New Criminal Rule of Procedure—Retroactive Application—Collateral Review—Armed Career Criminal Act—Sentencing.
October 14, 2026
In 2018, Griego pleaded guilty to being a felon in possession of a firearm. At the time of sentencing, Griego had prior state convictions for two residential burglaries, a commercial burglary, trafficking methamphetamine, and an aggravated battery. At sentencing, the district court determined that Griego qualified as an armed career criminal under the Armed Career Criminal Act (ACCA) because he had committed at least three predicate crimes on different occasions. However, the district court did not identify which of the convictions made Griego ACCA eligible. The court imposed the ACCA’s mandatory minimum sentence of 15 years’ imprisonment, and Griego did not appeal. Several years after Griego’s conviction, the Supreme Court issued Wooden v. United States, 595 U.S. 360 (2022), determining that “occasion” as used in the ACCA essentially means an episode or event and that several crimes can occur on one occasion. Griego filed a 28 USC § 2255 motion to vacate or correct the ACCA sentence, arguing that Wooden applied retroactively and that his two same-day burglary offenses were not different occasions qualifying as separate ACCA predicate offenses. While that motion was pending, Erlinger v. United States, 602 U.S. 821 (2024), was decided, which held that the ACCA’s different-occasions requirement has to be alleged in the indictment and proven to a jury beyond a reasonable doubt. Griego then supplemented his motion, arguing that the district court violated his Fifth and Sixth Amendment rights by determining, using a preponderance of the evidence standard, that his prior offenses occurred on different occasions, even though that fact was not charged in the indictment. He also argued that Erlinger applies retroactively on collateral review because it was dictated by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). The district court found that Griego had not procedurally defaulted his Wooden or Erlinger claims and that his commercial burglary and drug offenses were not ACCA predicate offenses. However, the court determined that his two residential burglaries did not occur on the same “occasion” based on the time and distance between them, so they were separate convictions under the ACCA. The court also concluded that Erlinger did not apply retroactively on collateral review and therefore denied Griego’s § 2255 motion and a certificate of appealability (COA).
Griego sought a COA from the Tenth Circuit, which can issue only if Griego makes a “substantial showing of the denial of a constitutional right.” § 2253(c)(2). Given that the district court denied Griego’s claims on the merits, he must show that reasonable jurists could debate or agree on whether the petition should have been resolved differently or that the issues presented were adequate to proceed further.
Griego argued that the district court erred by finding that his residential burglaries occurred on different occasions, based on documents in his case. This issue cannot support a COA because it does not involve the denial of a constitutional right under § 2253(c)(2).
Griego also contended that the district court erred by concluding that Erlinger announced a new rule and thus does not apply retroactively on collateral review, maintaining that Erlinger did not announce a new rule because it was dictated by the holdings in Apprendi and Alleyne. New constitutional rules of criminal procedure generally do not apply to cases that became final before announcement of the rule. Because Griego’s conviction was final before Erlinger, whether he can benefit from Erlinger depends on whether it announced a new rule. The Tenth Circuit concluded that Erlinger’s rule was not already apparent to all reasonable jurists when Griego’s conviction was finalized in 2018. Thus, in deciding Erlinger, while the Court relied on Apprendi and Alleyne, it was not dictated by those cases. Therefore, Erlinger announced a new rule, and Griego failed to make a substantial showing of the denial of a constitutional right.
The COA application was denied and the matter was dismissed.