United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2099

___________________________

Joseph R. Grooms

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

____________

 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________

 Submitted: January 17, 2014

 Filed: February 21, 2014

[Unpublished]

____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

____________

PER CURIAM.

Joseph Grooms pled guilty to possession with intent to distribute cocaine,

possession with intent to distribute methamphetamine, and felon in possession of

firearms. The district court determined that Grooms was subject to enhanced 1

The Honorable Dean Whipple, United States District Judge for the Western 1

District of Missouri. 
sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),

because of three prior violent felony convictions, including a Kansas conviction for

involuntary manslaughter. It sentenced Grooms to serve concurrent 188 month terms

on each count, and Grooms appealed his convictions. While the appeals were

pending, the Supreme Court clarified the definition of a violent felony under § 924(e)

in Begay v. United States, 553 U.S. 137 (2008). Grooms now brings a pro se motion

to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, asserting that his

involuntary manslaughter conviction was not a violent felony as defined in Begay. 

The district court denied his motion, and Grooms appeals. We affirm for the reasons

stated. 

Grooms was arrested on January 25, 2005 after police received a report that he

had threatened to get a gun from his truck and shoot a security employee at a Kansas

City night club. Police searched his vehicle and discovered two handguns, quantities

of cocaine and methamphetamine, and a digital scale. Grooms told police that the

guns were not his, explaining that when he was 17 years old he had accidentally shot

and killed his best friend and had been uncomfortable around guns ever since. After

his motion to suppress the evidence taken from his truck was denied, Grooms pled

guilty to one count each of felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1)

and 924(e)(1), possession with intent to distribute cocaine, and possession with intent

to distribute methamphetamine, 21 U.S.C. § 841(a)(1) and (b)(1)(C). 

The presentence report for Grooms calculated his total offense level to be 25

and his criminal history to be VI, and stated that he was subject to an armed career

criminal enhancement under § 924(e) and U.S.S.G. § 4B1.4. The recommended

enhancement was based on three prior convictions for violent felonies, including a

September 1993 conviction for involuntary manslaughter. Combined with a further

enhancement for having possessed firearms in connection with a controlled substance

offense, his resulting offense level was 34. After subtracting three levels for

acceptance of responsibility and timely notice of intent to plead guilty, the final

-2-
offense level for Grooms was 31, resulting in a sentencing guideline range of 188 to

235 months. 

During the sentencing hearing, Grooms told the court that while he agreed that

two of his prior felonies would support the category of armed career criminal, his

involuntarymanslaughter conviction would not because the shooting was an accident.

The presentence investigation report indicated that Grooms had been 17 years old at

the time of the manslaughter conviction and that court records showed the killing was

unintentional. Nonetheless, Grooms' attorney did not object to the presentence report

or the enhanced guideline range. The district court adopted the report's findings in

February 2007 and sentenced Grooms to three concurrent 188 month terms, one for

each of the firearm and drug possession counts. 

Grooms filed an appeal through new counsel, challenging his conviction, but

not his sentence, on grounds that the district court had erred in admitting the evidence

taken from his vehicle. We affirmed his conviction in November 2007. The

following April the Supreme Court issued its decision in Begay, clarifying the

definition of a violent felony under § 924(e). 553 U.S. 137 (2008). The next month

the Supreme Court reversed Grooms' conviction, remanding his case for further

consideration of the lawfulness of his vehicle search in light of Arizona v. Gant, 556

U.S. 332 (2009). Grooms v. United States, 556 U.S. 1231 (2009). We reopened

Grooms' case in January 2010 and ordered the parties to file supplemental briefs on

the vehicle search issue. Grooms complied, filing a brief which again did not

challenge his sentence and made no mention of Begay. We reaffirmed Grooms'

conviction in April 2010, and the Supreme Court denied certiorari on October 12,

2010 and rehearing on January 18, 2011. 

Grooms then filed this pro se motion on October 3, 2011 to vacate, set aside,

or correct his sentence under § 2255. He argues that his involuntary manslaughter

conviction does not qualify as a violent felony under the Supreme Court's analysis in

-3-
Begay. He asserts that his 188 month sentence for possession of firearms is thus

illegal. The district court denied his motion, and Grooms appeals. We review de

novo the denial of a § 2255 motion and review underlying findings of fact for clear

error. United States v. Lee, 715 F.3d 215, 221 (8th Cir. 2013). Section 2255 entitles

a federal prisoner to relief if his "sentence was imposed in violation of the

Constitution or laws of the United States, or . . . was in excess of the maximum

authorized by law." King v. United States, 595 F.3d 844, 852 (8th Cir. 2010)

(quoting 28 U.S.C. § 2255(a)). 

A preliminary question is whether Grooms procedurally defaulted his Begay

claim. A prisoner who fails to raise a claim on direct appeal generally may not raise

it in a § 2255 motion. Jennings v. United States, 696 F.3d 759, 762–63 (8th Cir.

2012). An exception to this rule exists when "new law has been made since the trial

and appeal." Davis v. United States, 417 U.S. 333, 342 (1974) (internal quotation

marks and ellipsis omitted). Procedural default will be excused if the petitioner

shows cause and prejudice or miscarriage of justice. Winfield v. Roper, 460 F.3d

1026, 1034 (8th Cir. 2006). Grooms first argues that his failure to raise this claim on

direct appeal falls within the new law exception because Begay was decided while

his appeal was still pending. While that is true, Grooms' appeal had been reopened

for new briefing after the Supreme Court had decided Begay and remanded his case. 

That gave Grooms a new procedural opportunity to raise his claim. See Reed v. Ross,

468 U.S. 1, 14 (1984). He failed to so, and we therefore conclude that Grooms

procedurally defaulted it. 

Grooms next argues that he had cause for his default because his appellate

counsel was unaware of the existence and relevance of Begay at the time his appeal

was reopened for new briefing. He states that he only became aware of Begay's

relevance while he was preparing the pro se motion now before the court. Cause may

be satisfied when a "claim is so novel that its legal basis is not reasonably available

to counsel" at the time of appeal. Reed, 468 U.S. at 16. In Reed, the Court excused

-4-
a prisoner's procedural default on a constitutional claim because its precedent at the

time of his default would not have supported it; only a single circuit had. Id. at 18. 

In contrast, Begay was law at the time of Grooms' default, and at the time his

attorney filed supplemental briefing, three other circuits had interpreted Begay to

exclude offenses with the mens rea of recklessness from the category of violent

felonies. United States v. Ossana, 638 F.3d 895, 901 (8 Cir. 2011) (citing United

th

States v. Gray, 535 F.3d 128, 131–32 (2d Cir. 2008); United States v. EsparzaHerrera, 557 F.3d 1019, 124–25 (9th Cir. 2009); United States v. McFalls, 592 F.3d

707, 716 (6th Cir. 2010)). There was thus a reasonable basis upon which to develop

a legal theory under Begay at the time Grooms' appeal was reopened, and he cannot

show cause for his default. As Grooms fails to show cause and prejudice excusing

his procedural default and does not seek any other exception, he is barred from

bringing his claim. 

In any event, the district court could have legally sentenced Grooms to a 188

month sentence for his drug convictions alone. The statutory maximum for Grooms'

drug convictions is 20 years imprisonment, 21 U.S.C. § 841(b)(1)(C). Grooms' two

unchallenged violent felony convictions qualified him as a career offender under

U.S.S.G. § 4B1.1. Because of the 20 year maximum penalties for Grooms' two drug

convictions, his base offense level would have been 32, § 4B1.1(b)(3), reduced to 29

because of his acceptance of responsibility and timely notice of intent to plead guilty. 

§ 3E1.1(a), (b). With a criminal history of VI, Grooms' sentencing range for the two

drug convictions would have been 151 to 188 months even without an armed career

criminal enhancement.

The judgment of the district court is affirmed. 

______________________________

-5-