Erlinger Announces a New Rule: Limits on Retroactive ACCA Challenges After Final Conviction

1. Introduction

In United States v. Griego, the Tenth Circuit addressed whether a defendant whose conviction became final before Erlinger v. United States could obtain appellate review of a collateral challenge to an Armed Career Criminal Act (ACCA) sentence. The central issue was whether Erlinger announced a new constitutional rule or merely applied a rule already dictated by earlier Supreme Court decisions.

The distinction mattered because new constitutional rules of criminal procedure generally do not apply retroactively to convictions that were already final. Although Erlinger drew heavily on established jury-trial principles, the Tenth Circuit concluded that its particular requirement—jury determination of whether ACCA predicate offenses occurred on different occasions—was not apparent to all reasonable jurists before that decision.

The court therefore denied Dennis Griego a certificate of appealability (COA). It also held that his separate challenge to the district court’s statutory application of ACCA could not independently support a COA because it did not involve the denial of a constitutional right.

The decision’s central principle is that a constitutional ruling may follow naturally from earlier precedents yet still be “new” for retroactivity purposes if those precedents did not dictate its specific result.

2. Background and Procedural History

The conviction and ACCA enhancement

In 2018, Griego pleaded guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that he had at least three qualifying prior convictions committed on different occasions and imposed ACCA’s mandatory minimum sentence of fifteen years under 18 U.S.C. § 924(e)(1).

Without the ACCA enhancement, the statutory maximum applicable to Griego’s offense was ten years. Congress later increased the maximum for § 922(g) offenses to fifteen years, but the opinion expressly states that the later amendment did not apply to him.

Griego had five prior state convictions:

• Two residential burglaries;
• One commercial burglary;
• Trafficking methamphetamine; and
• Aggravated battery.

The original sentencing court did not identify precisely which convictions supplied the necessary ACCA predicates. Griego did not appeal, and his conviction became final in 2018.

The intervening Supreme Court decisions

In Wooden v. United States, 595 U.S. 360 (2022), the Supreme Court interpreted an ACCA “occasion” as essentially an episode or event. Multiple offenses therefore need not occur at exactly the same moment to constitute one occasion.

Following Wooden, Griego moved under 28 U.S.C. § 2255 to vacate or correct his sentence. He argued that his two residential burglaries, committed on the same day, should count as offenses occurring on one occasion rather than two.

While that motion was pending, the Supreme Court decided Erlinger v. United States, 602 U.S. 821 (2024). As the Tenth Circuit described its holding, ACCA’s different-occasions requirement must be alleged in the indictment and proved to a jury beyond a reasonable doubt.

Griego supplemented his motion to assert that judicial determination of that uncharged fact, under a preponderance-of-the-evidence standard, violated his Fifth and Sixth Amendment rights. He maintained that Erlinger applied retroactively because its result was dictated by Apprendi v. New Jersey and Alleyne v. United States.

The district court’s ruling

The government asserted procedural default and opposed retroactive application of Erlinger. The district court found neither claim procedurally defaulted. It also concluded that Griego’s commercial burglary and drug convictions were not ACCA predicates.

Nevertheless, relying on permissible conviction records known as Shepard documents, the district court found that the residential burglaries were sufficiently separated by time and distance to constitute different occasions. It further held that Erlinger did not apply retroactively on collateral review. The court denied both § 2255 relief and a COA.

3. Summary of the Opinion

The Tenth Circuit considered two proposed grounds for a COA and rejected both.

1. The statutory different-occasions challenge: Griego disputed the district court’s use of the Shepard documents to conclude that the burglaries occurred on separate occasions. The appellate court held that this issue, as presented, did not allege the denial of a constitutional right and therefore could not support a COA under 28 U.S.C. § 2253(c)(2).
2. The constitutional retroactivity challenge: Griego argued that Erlinger announced no new rule because Apprendi and Alleyne already required its result. The court disagreed, concluding that no reasonable jurist could debate the district court’s determination that Erlinger announced a new rule.

Three considerations supported the latter conclusion: the longstanding judicial interpretation of the prior-conviction exception; unanimous pre-Erlinger federal appellate authority permitting judges to decide the occasions question; and the views expressed in the Erlinger dissent.

Griego did not argue that an exception to the general bar on retroactive application of new rules applied. The panel expressly declined to address that issue. It denied the COA and dismissed the matter rather than proceeding to a full merits appeal.

4. Analysis of the Precedents Cited

A. ACCA and the constitutional allocation of sentencing facts

Wooden v. United States, 595 U.S. 360 (2022)

Wooden supplied the statutory foundation for Griego’s original challenge. Its understanding of an “occasion” as an episode or event rejected any assumption that offenses necessarily constitute separate occasions merely because they occurred at different moments. The district court applied that interpretation but found the burglaries separate based on time and distance. The Tenth Circuit did not resolve the correctness of that application or separately decide Wooden’s retroactivity; it held that the statutory issue presented could not support a COA.

Erlinger v. United States, 602 U.S. 821 (2024)

Erlinger supplied the constitutional rule whose retroactivity was disputed: the ACCA occasions determination belongs to a jury applying the beyond-a-reasonable-doubt standard, rather than to a sentencing judge applying a lower standard. The Tenth Circuit considered both the majority’s reliance on earlier jury-trial decisions and the dissent’s characterization of the result as new constitutional law. The existence of the right for cases governed by Erlinger was not disputed; its availability to Griego on collateral review was.

Apprendi v. New Jersey, 530 U.S. 466 (2000)

Apprendi established that a fact increasing punishment beyond the prescribed statutory maximum generally must be submitted to a jury and proved beyond a reasonable doubt. This principle strongly supported Griego’s position because ACCA raised his sentencing exposure beyond the otherwise applicable ten-year maximum. But the Tenth Circuit held that the general principle did not necessarily dictate how the prior-conviction exception applied to the occasions inquiry.

Alleyne v. United States, 570 U.S. 99 (2013)

Alleyne held that a fact increasing a mandatory minimum is an element that must be submitted to the jury. It was directly relevant because ACCA imposed a fifteen-year mandatory minimum. Nevertheless, the panel distinguished a precedent’s logical implications from a result that every reasonable jurist was already compelled to accept.

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

This decision permits judges to find the fact of a prior conviction at sentencing. Lower courts had interpreted that exception as extending to whether prior crimes occurred on different occasions. Its scope created the doctrinal uncertainty central to the retroactivity analysis. Erlinger rejected that extension; it did not eliminate the prior-conviction exception itself.

Shepard v. United States, 544 U.S. 13 (2005)

Shepard supplied the label for the restricted category of conviction materials used by the district court, including judicial records, plea agreements, and plea colloquies. These records formed the evidentiary basis for the district court’s occasions finding. Their use did not resolve the distinct constitutional question of who must make that finding.

B. The COA requirement and the new-rule framework

Miller-El v. Cockrell, 537 U.S. 322 (2003)

Miller-El supplied the COA standard for claims denied on the merits: the applicant must show that reasonable jurists could debate the resolution or that the issues deserve encouragement to proceed further. The panel applied that threshold rather than conducting an unrestricted merits appeal.

Welch v. United States, 578 U.S. 120 (2016)

The court cited Welch for the general rule that new constitutional rules of criminal procedure do not apply to cases already final when the rules are announced. That principle made the classification of Erlinger as new or old decisive to Griego’s argument.

Teague v. Lane, 489 U.S. 288 (1989)

Teague furnished the governing definition of a new rule: one that breaks new ground, imposes a new governmental obligation, or reaches a result not dictated by precedent existing when the conviction became final. The panel focused on the last formulation. The inquiry concerned what existing precedent compelled in 2018, not simply how persuasively it supported the later decision.

Edwards v. Vannoy, 593 U.S. 255 (2021)

Edwards expressed the demanding nature of the inquiry: a rule is new unless it was already apparent to all reasonable jurists when the conviction became final. This formulation drove the court’s rejection of Griego’s claim that the general principles of Apprendi and Alleyne made Erlinger an old rule.

Lambrix v. Singletary, 520 U.S. 518 (1997)

The “apparent to all reasonable jurists” language quoted from Edwards originated in Lambrix. Its role was to reinforce that reasonable disagreement about the earlier precedents’ implications supports treating the later rule as new.

Stringer v. Black, 503 U.S. 222 (1992)

Stringer established that the reasonable-jurist inquiry is objective. Actual judicial disagreement is evidence, not an automatic answer. The panel therefore examined the substance and persistence of the contrary judicial views rather than simply counting judges.

C. The significance of judicial disagreement and institutional consensus

Chaidez v. United States, 568 U.S. 342 (2013)

Chaidez played a central comparative role. It cautioned that neither lower-court disagreement nor a Supreme Court dissent automatically establishes a new rule. Yet it also treated the displacement of a longstanding and unanimous federal appellate position as important evidence of novelty. The Tenth Circuit relied on that distinction: Erlinger overturned an entrenched consensus, not merely one side of a circuit split.

Padilla v. Kentucky, 559 U.S. 356 (2010)

Padilla appeared through the court’s discussion of Chaidez, which held that Padilla announced a new rule. The panel used the relationship between those cases as an analogy: a decision crossing a line uniformly recognized by the federal appellate courts is more plausibly new than one resolving an ordinary disagreement. The separate opinions in Padilla also illustrated how judicial descriptions of a doctrinal change can inform the inquiry.

Beard v. Banks, 542 U.S. 406 (2004)

Beard supported considering Supreme Court dissents as evidence of what a reasonable jurist could have understood existing law to permit. It provided a basis for examining the dissenting views in Erlinger without treating those views as controlling.

Butler v. McKellar, 494 U.S. 407 (1990)

Butler supported consideration of contrary lower-court authority. It also supplied the answer to Griego’s reliance on the Erlinger majority’s description of its reasoning: even a statement that a decision is within an earlier case’s “logical compass,” or is “controlled” by it, does not conclusively establish that the rule is old under Teague.

United States v. Chang Hong, 671 F.3d 1147 (10th Cir. 2011)

This circuit precedent confirmed that concurring and dissenting Supreme Court opinions inform the new-rule inquiry. It reinforced the panel’s use of the Erlinger dissent as relevant evidence rather than an independent source of governing law.

United States v. Christensen, 456 F.3d 1205 (10th Cir. 2006)

Christensen had treated a Supreme Court dissent expressly identifying a rule as new as dispositive evidence, presuming that a Justice’s opinion constituted a reasonable, good-faith reading of precedent. In Griego’s case, the panel invoked that reasoning but ultimately relied on the combined force of several considerations, acknowledging that any one factor alone might leave room for doubt.

D. The Tenth Circuit’s pre-Erlinger occasions decisions

United States v. Michel, 446 F.3d 1122 (10th Cir. 2006)

Michel demonstrated that the Tenth Circuit had permitted judicial different-occasions findings after Apprendi. It supported the conclusion that reasonable jurists could understand the prior-conviction exception to encompass that determination.

United States v. Reed, 39 F.4th 1285 (10th Cir. 2022)

Reed showed that the circuit continued to permit such findings after Alleyne. Although it postdated Griego’s 2018 finality date, the opinion used it to demonstrate the persistence of the pre-Erlinger understanding. Neither circuit decision was treated as independently conclusive; together they illustrated the durability of the interpretation later rejected.

5. The Court’s Legal Reasoning

A. The statutory claim and constitutional claim were distinct

Griego’s first argument concerned whether the records established separate occasions under ACCA. His second concerned whether a judge could constitutionally decide that question. The distinction mattered because § 2253(c)(2) requires a substantial showing of the denial of a constitutional right.

The court rejected the first issue at that threshold. This was not an appellate endorsement of the district court’s assessment of the burglaries. Nor did it establish that every dispute involving Shepard documents is nonconstitutional. It held only that the statutory issue Griego presented did not satisfy the constitutional requirement for a COA.

B. “Dictated by precedent” requires more than logical consistency

The principal analytical move was to separate two propositions: that Erlinger followed from the principles in Apprendi and Alleyne, and that those cases already compelled its precise holding.

A court can extend an established constitutional principle into a previously unresolved setting without merely restating an old rule. Here, the uncertainty concerned the reach of the prior-conviction exception. Before Erlinger, appellate courts uniformly understood that exception to permit judicial findings about separate criminal occasions.

Consequently, the Erlinger majority’s statement that the case was “nearly on all fours” with the earlier decisions did not settle the retroactivity question. Strong doctrinal continuity did not establish that every reasonable jurist had to reach the same result before Erlinger.

C. The three considerations operated cumulatively

The panel’s conclusion rested on the interaction of three features:

1. A plausible doctrinal basis for the former rule: Lower courts relied on the surviving prior-conviction exception, rather than openly disregarding the jury-trial cases.
2. Uniform and longstanding appellate agreement: Every federal court of appeals hearing criminal cases had allowed judges to make the occasions determination.
3. Contemporaneous Supreme Court disagreement: The three-Justice dissent in Erlinger expressly characterized the majority’s rule as new constitutional law.

The court also considered it significant that the majority did not dispel the dissent’s characterization of the rule’s novelty. That observation was supplementary, not a freestanding rule that a majority’s silence determines retroactivity.

Taken together, these considerations established that Erlinger’s rule had not been apparent to all reasonable jurists. The court therefore regarded the new-rule conclusion as beyond reasonable debate.

D. Two reasonable-jurist inquiries were involved

The opinion contains two related but distinct tests. Under Teague, the court asked whether all reasonable jurists would have recognized the constitutional rule when Griego’s conviction became final. Under the COA standard, it asked whether reasonable jurists could now debate the district court’s resolution of that retroactivity question.

Its conclusion was that reasonable jurists could previously have rejected Erlinger’s rule, making the rule new—and that no reasonable jurist could now debate that classification on the grounds Griego advanced.

E. The holding’s limits

The panel did not decide an asserted exception to nonretroactivity, because Griego asserted none. It also did not resolve every possible collateral challenge involving ACCA or independently review whether the two burglaries were one occasion.

The decision should therefore be understood as a new-rule determination resolving this COA application, not as an exhaustive adjudication of every possible retroactivity theory or every sentencing issue arising under Erlinger.

6. Potential Impact

Collateral challenges to final ACCA sentences

The published order substantially restricts the argument that Erlinger applies to already-final convictions simply because Apprendi and Alleyne predated them. Within the Tenth Circuit, applicants advancing that theory confront a decision holding the new-rule conclusion not reasonably debatable.

The practical consequence is significant: a sentencing procedure that would violate the later-announced constitutional rule does not automatically entitle a prisoner to reopen a final judgment.

Separation of ACCA’s substantive requirements from sentencing procedure

The opinion highlights the difference between deciding what constitutes a separate occasion under Wooden and deciding who must make that finding under Erlinger. A prisoner may dispute either or both, but the constitutional and statutory dimensions remain analytically distinct.

That distinction also matters at the COA stage: identifying a possible statutory sentencing error does not, without more, establish the constitutional showing required for appellate review.

Broader retroactivity methodology

Beyond ACCA, the opinion illustrates how longstanding institutional consensus can demonstrate that a later constitutional decision broke new ground. It rejects both extremes: judicial disagreement is not automatically decisive, but uniform contrary appellate authority cannot be dismissed as irrelevant merely because the later majority relied on familiar principles.

The ruling concerns collateral review of final convictions. It does not narrow Erlinger’s governing constitutional requirement in cases to which that decision otherwise applies.

7. Complex Concepts Simplified

ACCA predicate offense

A prior conviction qualifying toward ACCA’s enhanced punishment. Three qualifying convictions committed on different occasions trigger the statutory enhancement at issue.

Different occasions

Separate criminal episodes or events. Different offense counts do not necessarily mean different occasions, and same-day offenses are not necessarily one occasion.

Collateral review under § 2255

A federal prisoner’s challenge to a conviction or sentence after the ordinary direct-review process, subject to limits that do not apply in the same way on direct appeal.

Certificate of appealability

The authorization needed to appeal the denial of § 2255 relief. For the merits ruling here, Griego had to present a constitutional issue whose resolution reasonable jurists could debate.

New constitutional rule

A rule whose specific result was not already compelled by precedent when the conviction became final. It may be new even when based on longstanding constitutional principles.

Retroactivity

Whether a later judicial rule can benefit someone whose conviction was already final. Recognition of a constitutional right and permission to reopen an old judgment are separate questions.

Preponderance versus proof beyond a reasonable doubt

A preponderance means the fact is more likely true than not. Proof beyond a reasonable doubt is the substantially higher criminal-trial standard required for the jury finding at issue in Erlinger.

Procedural default

A restriction that may prevent consideration of a claim not properly raised earlier. The district court found no default here, so default was not the basis for the appellate disposition.

8. Conclusion

United States v. Griego establishes that Erlinger announced a new rule for purposes of the retroactivity argument presented. Its result was not dictated by Apprendi and Alleyne, given the prior-conviction exception, uniform contrary appellate authority, and the Supreme Court’s own disagreement.

The Tenth Circuit therefore denied a COA and dismissed the matter. The decision underscores two enduring limits on collateral relief: statutory disagreement alone does not satisfy the constitutional COA requirement, and a later constitutional ruling does not automatically reopen a final sentence. Any exception to nonretroactivity remained outside the decision because Griego advanced none.