MURPHY, Circuit Judge.
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 asserted his counsel was constitutionally ineffective for failing to challenge on appeal the district court's use of a 1998 California conviction to sentence 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 2253
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
Holyfield thereafter filed a timely pro se motion under 28 U.S.C. § 2255, requesting that the district court vacate his sentence and resentence 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 asserted his failure to raise this issue on appeal was excused by appellate counsel'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 specifically, the district court relied on Short, concluding Short stood for the proposition that a felony conviction is final for purposes of § 841(b)(1)(A) when the conviction is no longer subject to examination on direct appeal.
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 offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release." (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.
In Short, this court held "a sentence is final for purposes 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 because it was no longer subject to examination on direct appeal. Id.
Short was arrested in August 1989 for a federal drug offense in violation of § 841. Id. at 1447. In June 1988, he had pleaded guilty "to possession 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 sentence under § 841(b)(1)(A) applied. Id.
This court also noted that under the Utah Rules of Criminal Procedure, "`all appeals in criminal cases 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 because 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 violation because the prior conviction was "no longer subject to examination on direct appeal" by the time the § 841 violation occurred. See id. at 1460.
The conspiracy that gave rise to Holyfield's conviction under § 841 ran from October 1996 through September 2000. The prior felony conviction at issue occurred in July 1998, when Holyfield pleaded guilty to illegal marijuana possession in California state court. The California court suspended imposition of Holyfield's sentence and placed him on probation. Pursuant to the terms of that probation, there was a possibility Holyfield's felony conviction would be reduced to a misdemeanor at some point during his probation. Cal.Penal Code § 1203.3(b)(1)(B). Like in Short, Holyfield was still on probation in connection with his 1998 California conviction when he committed the instant violation of § 841. Also like in Short, his probation was revoked by the time he was convicted of the instant violation of § 841.
The California state court's act of placing Holyfield on probation and suspending imposition of his sentence is deemed a final judgment for purposes of appeal. Cal.Penal Code § 1237 (providing that an order granting probation "shall be deemed to be a final judgment" for purposes
Because Short is factually indistinguishable in all relevant respects from this case, it forecloses Holyfield's argument his 1988 conviction was not final at the time he committed the § 841 violation.