Christopher Mitchell v. United States

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0171p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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CHRISTOPHER ALAN MITCHELL,

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Petitioner-Appellant, │

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v. > No. 20-6031

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UNITED STATES OF AMERICA, │

Respondent-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville.

Nos. 2:09-cr-00017-1; 2:14-cv-00183—J. Ronnie Greer, District Judge.

Argued: April 28, 2022

Decided and Filed: August 5, 2022

Before: McKEAGUE, GRIFFIN, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,

INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES

ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust,

FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,

Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,

Knoxville, Tennessee, for Appellee.

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OPINION

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CHAD A. READLER, Circuit Judge. Almost a decade ago, inmate Christopher Alan

Mitchell moved to vacate his sentence on the ground that he had been erroneously designated as

a career offender under the Armed Career Criminal Act. At first, Mitchell’s efforts bore fruit.

No. 20-6031 Mitchell v. United States Page 2

Relying on then-existing law, the district court granted Mitchell’s 28 U.S.C. § 2255 motion,

vacated his sentence, and set the case for resentencing. The resentencing process began but,

before it was completed, developments in other cases revealed that Mitchell was a career

offender after all. So the court vacated the order granting relief, denied Mitchell’s § 2255

motion, and reinstated the original sentence.

Notwithstanding the denial of his § 2255 motion, Mitchell claims that the district court

enjoyed the discretion to resentence him de novo. We disagree. After finding Mitchell ineligible

for § 2255 relief, the court was required to reinstate his original sentence. Accordingly, we

affirm the district court’s judgment. We also decline Mitchell’s request to expand his certificate

of appealability.

I.

This case involves two mainstays of our docket: postconviction relief under 28 U.S.C.

§ 2255 and the Armed Career Criminal Act. Beginning with the latter, the Armed Career

Criminal Act imposes a 15-year mandatory minimum sentence where a defendant possesses a

firearm in violation of 18 U.S.C. § 922(g) and has at least three prior convictions “for a violent

felony or a serious drug offense, or both, committed on occasions different from one another.”

18 U.S.C. § 924(e)(1). The phrase “violent felony” includes “any crime punishable by

imprisonment for a term exceeding one year . . . that . . . is burglary.” § 924(e)(2)(B).

Over a decade ago, Mitchell pleaded guilty to possessing a firearm as a felon in violation

of § 922(g). He also had three prior convictions relevant here: two for Tennessee aggravated

burglary in violation of Tenn. Code Ann. § 39-14-403 and one for Class D Tennessee burglary in

violation of Tenn. Code Ann. § 39-14-402. Under then-controlling Sixth Circuit precedent,

Tennessee aggravated burglary was a violent felony under the Armed Career Criminal Act. See

United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007); see also United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (holding that Class D Tennessee burglary is a violent felony).

In view of this criminal history, the district court sentenced Mitchell to § 924(e)’s 15-year

mandatory minimum. Mitchell did not appeal.

No. 20-6031 Mitchell v. United States Page 3

Several years later, Mitchell moved to vacate his sentence under 28 U.S.C. § 2255. He

argued that his prior convictions for Tennessee aggravated burglary did not constitute violent

felonies given recent developments in Armed Career Criminal Act jurisprudence. Indeed, as

Mitchell’s motion was pending before the district court, our en banc Court held that Tennessee

aggravated burglary is not a violent felony under § 924(e). See United States v. Stitt (Stitt I), 860

F.3d 854, 856 (6th Cir. 2017) (en banc) (overruling Nance), rev’d, 139 S. Ct. 399 (2018). Based

on Stitt I, the parties agreed that Mitchell was not subject to the Armed Career Criminal Act’s

15-year mandatory minimum, as two of his three qualifying offenses were for Tennessee

aggravated burglary. So the district court granted Mitchell’s § 2255 motion, vacated his

sentence, and set the case for resentencing.

After Mitchell’s resentencing began but before it was completed, the district court stayed

the proceedings to await the Supreme Court’s decision in the Stitt I appeal. Ultimately, the

Supreme Court reversed Stitt I, holding that “[t]he relevant language of the Tennessee

[aggravated burglary] . . . statute[] falls within the scope of generic burglary’s definition” for

purposes of § 924(e). United States v. Stitt (Stitt II), 139 S. Ct. 399, 406 (2018). On the heels of

Stitt II, we foreclosed further challenges to Tennessee aggravated burglary’s status as a violent

felony under the Armed Career Criminal Act in Brumbach v. United States. See 929 F.3d 791,

794 (6th Cir. 2019) (holding that Nance, which predated Stitt I, is “again the law of this circuit”).

These decisions notwithstanding, Mitchell maintained before the district court that

neither Tennessee aggravated burglary nor Tennessee burglary constitutes a violent felony. He

also claimed that the district court improperly relied on facts from state court records to

determine that he committed his burglaries “on occasions different from one another.”

§ 924(e)(1). Concluding that our precedent foreclosed Mitchell’s arguments, the district court

vacated the order granting Mitchell’s § 2255 motion, denied the motion, and reinstated the

original sentence.

Mitchell moved for reconsideration. In his motion, Mitchell asked the district court to

“finish the resentencing hearing” and order his sentence to run concurrently with a Tennessee

state sentence he was then serving. The district court denied Mitchell’s motion and, in addition,

declined to issue a certificate of appealability. We later granted Mitchell a certificate of

No. 20-6031 Mitchell v. United States Page 4

appealability to challenge the district court’s reinstatement of his original sentence. See Mitchell

v. United States, No. 20-6031 (6th Cir. June 17, 2021) (order).

II.

A. Mitchell’s primary argument on appeal is that the district court enjoyed the discretion

to resentence him even after denying his § 2255 motion. Why? Because, says Mitchell, the

court had previously vacated his original sentence. And during resentencing, Mitchell adds, the

court must entertain his request for concurrent sentences.

That takes us to the other mainstay of our docket, 28 U.S.C. § 2255. Section 2255

affords a federal prisoner a narrow opportunity to challenge his earlier criminal proceedings.

The statute authorizes the prisoner to move the court to “vacate, set aside or correct the sentence”

“upon the ground that the sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

attack.” § 2255(a). In evaluating a § 2255 motion, the court “initially considers whether . . . the

petitioner is entitled to any § 2255 relief.” Braden v. United States, 817 F.3d 926, 929 (6th Cir.

2016) (citation omitted). If so, the court must vacate the judgment and select an appropriate

remedy, such as resentencing. § 2255(b); see also Ajan v. United States, 731 F.3d 629, 631 (6th

Cir. 2013). Otherwise, the motion must be denied. See Snider v. United States, 908 F.3d 183,

189 (6th Cir. 2018) (noting that a court may grant relief “only” where the prisoner satisfies

§ 2255(a)).

But how should a court proceed in the unusual circumstance confronting the district court

here, where the court, after previously granting Mitchell’s § 2255 motion, later vacated that order

before any remedy was awarded because he was not eligible for relief? The appropriate course is

the one the district court followed: to reinstate the original sentence.

The reasoning is straightforward. A district court does not enjoy “inherent authority . . .

to modify an otherwise valid sentence.” United States v. Washington, 584 F.3d 693, 700 (6th

Cir. 2009); see also 18 U.S.C. § 3582(c) (stating the general rule that a court “may not modify a

term of imprisonment once it has been imposed”). So unless Mitchell could demonstrate some

No. 20-6031 Mitchell v. United States Page 5

grounds for relief, the district court was not authorized to modify his sentence. Mitchell’s

asserted basis for relief was § 2255. But he failed to satisfy § 2255’s demanding requirements.

The district court correctly observed that our case law forecloses “[a]ny reasonable possibility”

that Mitchell might successfully challenge his career offender status and thus denied his § 2255

motion. See Brumbach, 929 F.3d at 794; Ferguson, 868 F.3d at 515. In view of that denial,

Mitchell was not “entitled to any § 2255 relief.” Braden, 817 F.3d at 929 (citation omitted).

And as Mitchell identified no other grounds for relief, the district court lacked the authority to

adjust Mitchell’s sentence. See United States v. Pettiford, 612 F.3d 270, 277 (4th Cir. 2010) (“If

the prisoner fails to show that his sentence is unlawful on one of the specified grounds under

[§ 2255], ‘the court must deny the petition.’” (citation omitted)). In other words, a prisoner who

(like Mitchell) seeks relief under § 2255 but lacks a basis for relief under that statute must end

those proceedings with his original sentence intact. See Washington, 584 F.3d at 700; § 3582(c).

And the only way to ensure that no change occurred here was to reinstate Mitchell’s original

sentence.

This approach squares with our practice following vacatur of a district court’s order

granting postconviction relief under § 2255. In that setting, we consistently “direct the district

court to enter the original sentence, rather than issue a general remand.” United States v. Tigue,

811 F. App’x 970, 975 (6th Cir. 2020). It is thus no surprise that in cases where Stitt II

eliminated the basis for § 2255 relief, we have consistently ordered prisoners’ original sentences

reinstated—not resentencing. See, e.g., United States v. Brown, 957 F.3d 679, 681 (6th Cir.

2020); Brumbach, 929 F.3d at 795; Gilliam v. United States, 804 F. App’x 387, 389 (6th Cir.

2020); United States v. Morris, 812 F. App’x 341, 346 (6th Cir. 2020); United States v. O’Dell,

813 F. App’x 180, 182 (6th Cir. 2020); Tigue, 811 F. App’x at 975; United States v. McClurg,

811 F. App’x 945, 946 (6th Cir. 2020); Booker v. United States, 810 F. App’x 443, 445 (6th Cir.

2020); United States v. Bateman, 780 F. App’x 355, 357 (6th Cir. 2019); Greer v. United States,

780 F. App’x 352, 353 (6th Cir. 2019); United States v. Crutchfield, 785 F. App’x 321, 322 (6th

Cir. 2019); United States v. Bawgus, 782 F. App’x 408, 408 (6th Cir. 2019); Bell v. United

States, 773 F. App’x 832, 833 (6th Cir. 2019). And we have previously declined to address

arguments that the district court erred during resentencing where the court “lacked grounds for

granting [the prisoner’s] motion to vacate” in the first place. United States v. Doyle, 631 F.3d

No. 20-6031 Mitchell v. United States Page 6

815, 817 & n.1 (6th Cir. 2011). So too here. Once the district court denied Mitchell’s § 2255

motion, there was no basis for the court to consider his argument for concurrent sentences.

Any other result, it bears noting, would undermine § 2255’s limits on postconviction

relief. To see why, recall that Mitchell asked the district court to resentence him to a 15-year

term concurrent with his Tennessee sentence. But Mitchell “is not now, nor did he . . . argue [in

the district court] that the district court’s failure to run his original sentence concurrent with his

pending state charges renders that original sentence unlawful under 28 U.S.C. § 2255.” Simply

put, Mitchell has not held up his end of the bargain that § 2255 seeks to strike; he asks to avail

himself of the statute’s benefits—resentencing under current law to reduce the time he spends in

prison—without satisfying its requirements. Congress, it bears reminding, chose to authorize

resentencing only in the “narrow set of circumstances” specified by § 2255. Bullard v. United

States, 937 F.3d 654, 658 (6th Cir. 2019). Mitchell’s case is not one of them.

B. Mitchell resists this conclusion on several fronts. He first claims that the district court

had to resentence him because the court had previously vacated his original sentence. But

Mitchell ignores the fact that the district court later vacated the order vacating Mitchell’s original

sentence, meaning the original order affords him no relief. See Vacate, Black’s Law Dictionary

(11th ed. 2019) (defining “vacate” as “nullify or cancel; make void; invalidate”); see also

Shabazz v. United States, 912 F.3d 73, 78 (2d Cir. 2019) (“The district court’s judgment on

Shabazz’s [§ 2255] petition vacated his original sentence, substituting the court’s new, lesser

sentence. The effect of our ruling vacating that judgment is to reinstate the original sentence.”).

Nor is there any doubt that the district court had the authority to enter the second order. Orders

vacating sentences under § 2255, after all, are interlocutory where resentencing has yet to occur.

See United States v. Lawrence, 555 F.3d 254, 258 (6th Cir. 2009) (citing Andrews v. United

States, 373 U.S. 334, 338–40 (1963)). And district courts may “reconsider interlocutory orders

and reopen any part of a case before entry of a final judgment.” In re Saffady, 524 F.3d 799, 803

(6th Cir. 2008) (citation omitted).

Equally unavailing is Mitchell’s suggestion that Stitt II required the district court to

consider his career offender status “as part of his resentencing.” Here, Mitchell puts the cart

before the horse. The district court had to consider Mitchell’s career offender status to determine

No. 20-6031 Mitchell v. United States Page 7

whether he qualified for relief under § 2255 before resentencing him or otherwise altering his

sentence. See Braden, 817 F.3d at 929. And as the court concluded that Mitchell is a career

offender under the Armed Career Criminal Act, resentencing could not occur. See Pettiford, 612

F.3d at 277.

Nor are we persuaded by Mitchell’s invocation of Kitts v. United States, 812 F. App’x

336 (6th Cir. 2020), and Dillard v. United States, 768 F. App’x 480 (6th Cir. 2019). True, in

Kitts and Dillard we remanded for further proceedings after reversing orders granting § 2255

relief. We did so, however, for the narrow purpose of allowing the district court to determine

whether the prisoner was otherwise entitled to § 2255 relief. See Kitts, 812 F. App’x at 340–41

(“Cradler’s impact on whether Kitts’s second-degree burglary convictions qualify as [Armed

Career Criminal Act] predicate offenses requires further examination, and this question must be

addressed before it can be determined whether Kitts is subject to the ACCA’s mandatory

minimum.”); Dillard, 768 F. App’x at 487 (remanding for a determination as to whether the

prisoner’s prior convictions were violent felonies in view of a change in our case law). Here, on

the other hand, no “question must be addressed before it can be determined whether [Mitchell] is

subject to the ACCA’s mandatory minimum”—he is. Kitts, 812 F. App’x at 340–41; see also

Brumbach, 929 F.3d at 794; Ferguson, 868 F.3d at 515. Indeed, Mitchell acknowledges that his

concurrent sentences argument affords no independent basis for relief under § 2255. Because

Mitchell lacks any viable § 2255 claim, remand would serve no purpose.

III.

Mitchell also asks us to expand his certificate of appealability. He seeks permission to

argue that the district court violated the Sixth Amendment by relying on facts from Shepard

documents (charging instruments, plea agreements, jury instructions, and similar materials, see

Shepard v. United States, 544 U.S. 13, 16 (2005)), as opposed to a jury’s findings, to determine

that his prior burglary offenses occurred “on occasions different from one another.” § 924(e)(1).

The threshold rule is that “an appeal may not be taken to the court of appeals from . . . the

final order in a proceeding under section 2255” without a certificate of appealability. 28 U.S.C.

§ 2253(c)(1). A certificate of appealability, in turn, “may issue . . . only if the applicant has

No. 20-6031 Mitchell v. United States Page 8

made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). That means

Mitchell must “show[] that reasonable jurists could debate whether” the district court should

have granted relief. Moody v. United States, 958 F.3d 485, 488 (6th Cir. 2020) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

When deciding whether to issue a certificate of appealability, we consider not only the

substantive merits of Mitchell’s claim, but also any potential procedural hurdles that would bar

the requested relief. See Slack, 529 U.S. at 484–85. After all, no reasonable jurist could

conclude that relief should have been granted on a procedurally barred claim. Buck v. Davis, 137

S. Ct. 759, 777 (2017); Moody, 958 F.3d at 488 (collecting cases).

One procedural barrier that clouds Mitchell’s request for a certificate of appealability is

his failure to raise his Sixth Amendment argument in a direct appeal. That omission customarily

means we will consider the issue to have been procedurally defaulted. See Massaro v. United

States, 538 U.S. 500, 504 (2003). We enforce the procedural default rule to conserve judicial

resources and promote the finality of judgments by funneling challenges to a conviction and

sentence into a single appeal. See id. Yet notwithstanding those weighty considerations, we may

excuse a prisoner’s default if he “show[s] (1) cause for not raising the claim on appeal and (2)

prejudice from the error alleged in the claim.” Gatewood v. United States, 979 F.3d 391, 394

(6th Cir. 2020) (citation omitted).

Beginning with the first element, cause exists if a claim “is so novel that its legal basis

[was] not reasonably available to counsel” during the original proceedings. Bousley v. Untied

States, 523 U.S. 614, 622 (1998) (citation omitted). In other words, a claim is novel if, “at the

time of [the] default, the legal tools, i.e., case law, necessary to conceive and argue the claim

were not yet in existence and available to counsel.” Gatewood, 979 F.3d at 395 (citation

omitted). But a claim that another defendant raised before the petitioner’s proceedings is not

novel, for, as should be self-evident, “the tools required to conceive it must have existed” by

then. Id.

Novelty does not describe Mitchell’s argument that the Sixth Amendment forbids district

courts from using Shepard-document-derived facts to find that prior convictions occurred on

No. 20-6031 Mitchell v. United States Page 9

different occasions. The tools necessary to resolve what Mitchell describes as a violation of

Apprendi’s “bedrock rule” of jury factfinding, as Apprendi itself reflects, have existed since at

least 2000, when that decision issued. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”). Confirming as much, several additional cases Mitchell relies upon also predate his

sentencing. See Nijhawan v. Holder, 557 U.S. 29 (2009); United States v. Hayes, 555 U.S. 415

(2009). So do other cases where defendants raised similar arguments. See, e.g., United States v.

Hill, 440 F.3d 292, 298 (6th Cir. 2006); United States v. Humphries, 308 F. App’x 892, 897 (6th

Cir. 2009). The law supporting Mitchell’s Sixth Amendment claim was therefore “reasonably

available” to him during the original proceedings. Bousley, 523 U.S. at 622 (citation omitted).

Alternatively, cause exists where raising the claim on direct appeal would have been

futile because then-existing Supreme Court precedent “decisively foreclosed” the claim.

Gatewood, 979 F.3d at 396 (citation omitted). But this basis for excusing Mitchell’s procedural

default is likewise no oasis for him, as he identifies no then-controlling Supreme Court precedent

squarely barring his claim. Cf. Apprendi, 530 U.S. at 489 (noting “that a logical application of

our reasoning today should apply” to future disputes about the Sixth Amendment’s jury

factfinding requirement); Descamps v. United States, 570 U.S. 254, 270 (2013) (faulting the

district court for doing “just what we have said it cannot: rely on its own finding about a non-

elemental fact to increase a defendant’s maximum sentence”). To be sure, we have consistently

rejected similar arguments. See, e.g., Hill, 440 F.3d at 298–99; Humphries, 308 F. App’x at 899.

But the futility exception does not apply to claims foreclosed by mere “middle-management

judge[s].” Thomas More L. Ctr. v. Obama, 651 F.3d 529, 553 (6th Cir. 2011) (Sutton, J.,

concurring in part), abrogated by Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012);

see also Wright v. Spaulding, 939 F.3d 695, 709 n.3 (6th Cir. 2019) (Thapar, J., concurring)

(explaining that “futility cannot constitute cause if it means simply that a claim was unacceptable

to that particular court at that particular time” because “courts can, and do, rethink their own

precedents” (quoting Bousley, 523 U.S. at 623)); Cvijetinovic v. Eberlin, 617 F.3d 833, 839 &

n.7 (6th Cir. 2010). Indeed, not “[e]ven ‘the alignment of the circuits against a particular legal

argument’” excuses a prisoner’s default. Gatewood, 979 F.3d at 396 (citation omitted).

No. 20-6031 Mitchell v. United States Page 10

For these reasons, Mitchell cannot establish cause to excuse his default. And because Mitchell’s

Sixth Amendment claim “is plainly barred by a procedural default,” no certificate of

appealability may issue. Moody, 958 F.3d at 488.

As Mitchell sees things, jurists of reason could debate his Sixth Amendment claim

because, to his eye, the Supreme Court is “clearly interested” in the issue. That argument,

however, goes to the merits, rather than procedure. Nor, in any event, is it a strong merits

argument. Perhaps the Supreme Court will take up the issue one day, as Mitchell forecasts. Cf.

Wooden v. United States, 142 S. Ct. 1063, 1068 n.3 (2022) (reserving the question). But as of

now, the Supreme Court has not done so. That leaves our precedent as the proper reference

point. And that precedent bars Mitchell’s claim—a point Mitchell, to his credit, recognizes. See

United States v. Belcher, --- F.4th ---, 2022 WL 2682106, at *2 (6th Cir. 2022); United States v.

Hennessee, 932 F.3d 437, 442–44 (6th Cir. 2019). It follows that he is not eligible for a

certificate of appealability. See Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1266

(11th Cir. 2015) (“[N]o COA should issue where the claim is foreclosed by binding circuit

precedent ‘because reasonable jurists will follow controlling law.’” (citation omitted)).

Even if Mitchell had established cause for excusing his default, the district court’s

purported error did not prejudice him. At base, Mitchell claims the government was required to

prove the “how, when, and where” of his prior offenses to a jury. But even then, he offers no

reason to doubt the accuracy of his Shepard documents (here, Tennessee indictments and

judgments). And as those documents reflect, Mitchell committed three burglaries, each six

months apart from the others, of different buildings with different victims. What is more,

Mitchell confirmed the dates of these burglaries in the factual basis for his guilty plea to the

felon-in-possession charge. Against this backdrop, we are confident a jury would find that the

crimes were committed “on occasions different from one another,” as that phrase is used in

§ 924(e)(1). See Wooden, 142 S. Ct. at 1070–71 (adopting a “multi-factored” framework for the

different-occasions inquiry but noting that, “[f]or the most part, applying this approach will be

straightforward and intuitive”); see also id. at 1079–80 (Gorsuch, J., concurring in the judgment)

(cataloguing the “many and disparate” “potentially relevant factors” that, under the majority

opinion’s approach, supply “a judicial gloss on the statute’s terms”). Nor, for that matter, has

No. 20-6031 Mitchell v. United States Page 11

Mitchell developed any argument to the contrary. So use of the Shepard documents, even if

improper, did not cause “actual prejudice.” Phillip v. United States, 229 F.3d 550, 552 (6th Cir.

2000) (citation omitted); see also Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998); cf.

United States v. King, 272 F.3d 366, 379–80 (6th Cir. 2001) (holding that potential Apprendi

error related to drug quantity findings did not affect substantial rights on plain error review

where undisputed evidence established that the drugs’ weight exceeded the statutory threshold).

Nor, as Mitchell suggests, would Wooden itself be a basis for us to expand his certificate

of appealability. Setting aside the fact that his Wooden-based claim appears meritless, Wooden

decided a matter of statutory interpretation, not constitutional law. See 142 S. Ct. at 1069, 1072.

The decision therefore affords no avenue for Mitchell to obtain a certificate of appealability. See

§ 2253(c)(2) (requiring “a substantial showing of the denial of a constitutional right” (emphasis

added)); Wingate v. United States, 969 F.3d 251, 262 (6th Cir. 2020).

IV.

We affirm the judgment of the district court and decline to expand Mitchell’s certificate

of appealability.