United States v. Autobee , 701 F. App'x 710 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 6, 2017
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-1082
v. (D.C. No. 1:16-CV-01526-LTB
and 1:05-CR-00054-LTB-1)
GEORGE ANTHONY AUTOBEE, (D. Colorado)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
George Anthony Autobee, through counsel, seeks a certificate of appealability
(COA) to challenge the district court’s denial of his motion under 28 U.S.C. § 2255 to
vacate his sentence. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we
deny Mr. Autobee’s request for a COA and dismiss this appeal in its entirety.
I. BACKGROUND
Mr. Autobee pled guilty and was convicted of two counts of using a firearm
during and in relation to a crime of violence under 18 U.S.C. § 924(c). The predicate
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
crime of violence was armed bank robbery, 18 U.S.C. § 2113(a), (d). In 2006, Mr.
Autobee was sentenced to 60 months’ imprisonment on Count 1 and 240 months’
imprisonment on Count 2, for a total prison term of 300 months. Mr. Autobee did not file
a direct appeal.
On June 20, 2016, Mr. Autobee filed a 28 U.S.C. § 2255 motion requesting that
the district court vacate his sentence based on the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015). In Johnson, which issued on June 26, 2015, the
Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA)
is unconstitutionally vague. Id. at 2557.1 The ACCA’s residual clause defines a “violent
felony” as a felony that “involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Relying on Johnson, Mr. Autobee argued in his motion that armed bank robbery is
not a “crime of violence” under 18 U.S.C. § 924(c)(3). Section 924(c)(3) defines “crime
of violence” as a felony that:
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(B) by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
Id. § 924(c)(3). Mr. Autobee claimed that armed bank robbery does not constitute a crime
of violence under § 924(c)(3)(A), also known as the elements clause, and that he was
therefore necessarily convicted under § 924(c)(3)(B), also known as the risk of force
1
The Court later made Johnson’s holding retroactive to cases on collateral review
in Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
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clause. Mr. Autobee further maintained that the risk of force clause is unconstitutionally
vague because of its similarity to the ACCA’s residual clause.
In response, the government contended that Mr. Autobee’s motion is untimely
because it was filed more than one year after the judgment of conviction became final.
See 28 U.S.C. § 2255(f)(1). And, even though Mr. Autobee filed his motion within one
year of Johnson, the government claimed that Johnson did not establish the right Mr.
Autobee now asserts, i.e., that § 924(c)(3)(B) is unconstitutionally vague. See 28 U.S.C.
§ 2255(f)(3). The government further argued that, even if Mr. Autobee’s motion is
timely, § 924(c)(3)(B) is not unconstitutionally vague after Johnson. And even if it is, the
government asserted that armed bank robbery is still a crime of violence under the
elements clause.
The district court agreed with the government and denied Mr. Autobee’s motion.
The court first ruled that Mr. Autobee’s motion is untimely because he filed it more than
one year after the judgment of conviction became final and Johnson did not establish the
right Mr. Autobee now asserts. But the court also ruled that even if his motion were
deemed timely and the risk of force clause assumed to be invalid, Mr. Autobee could not
prevail because armed bank robbery is a crime of violence under the elements clause.
II. DISCUSSION
Mr. Autobee now seeks a COA so he can appeal the district court’s ruling. Below,
we first provide the legal standard governing the issuance of a COA. We then analyze the
timeliness of Mr. Autobee’s motion.
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A. Certificate of Appealability
A prisoner challenging a district court’s denial of a 28 U.S.C. § 2255 motion must
first obtain a COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C.
§ 2253(c)(1)(B); see Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (“A COA is
a jurisdictional pre-requisite to our review.”). We will issue a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
Where a district court denies a petition on procedural grounds—such as untimeliness—
without reaching the merits of the underlying constitutional claims, a prisoner must
satisfy a two-part standard to obtain a COA. He must show “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis
added). The prisoner must overcome both hurdles, as “[e]ach component . . . is part of a
threshold inquiry.” Id. at 485.
Instead of addressing the threshold requirements in order, we may “resolve the
issue whose answer is more apparent from the record and arguments.” Id. Because we
ordinarily “will not pass upon a constitutional question . . . if there is also present some
other ground upon which the case may be disposed of,” we generally resolve procedural
issues first. Id. (internal quotation marks omitted). “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.” Id. at 484. But if we find that
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reasonable jurists could debate the resolution of the procedural issues, we must then
consider whether the prisoner’s motion states valid constitutional claims. In doing so, we
“simply take a quick look at the face of the [petition] to determine whether the petitioner
has facially alleged the denial of a constitutional right.” Paredes v. Atherton, 224 F.3d
1160, 1161 (10th Cir. 2000) (internal quotation marks omitted). We are limited to “an
overview of the claims in the habeas petition and a general assessment of their merits,”
rather than “full consideration of the factual or legal bases adduced in support of the
claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Buck v. Davis, 137 S.
Ct. 759, 773 (2017) (“When a court of appeals sidesteps the COA process by first
deciding the merits of an appeal, and then justifying its denial of a COA based on its
adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.”
(quoting Miller-El, 537 U.S. at 336–37)).
Here, after carefully considering the district court’s order and the record on appeal,
we conclude that Mr. Autobee is not entitled to a COA to challenge the district court’s
denial of his § 2255 motion because reasonable jurists could not debate whether the
district court was correct in its procedural ruling. Accordingly, we deny Mr. Autobee’s
request for a COA and dismiss his appeal for the reasons set forth below.
B. Timeliness of Mr. Autobee’s Motion
Mr. Autobee would ordinarily have one year to file his § 2255 motion from “the
date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). That
deadline has come and gone, as Mr. Autobee filed his motion almost ten years after his
conviction became final. Mr. Autobee therefore relies on § 2255(f)(3), under which the
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one-year period runs from “the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.” Mr. Autobee filed his
motion less than one year after the Court decided Johnson, so the issue is whether
reasonable jurists could debate the district court’s conclusion that Johnson did not
establish the right Mr. Autobee now asserts.
Recall that the Court in Johnson invalidated the ACCA’s residual clause for being
unconstitutionally vague. The residual clause defines a “violent felony” as a felony that
“involves conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii). This provision is similar, but not identical, to the risk of force
clause in 18 U.S.C. § 924(c)(3)(B), which defines a “crime of violence” as a felony “that
by its nature, involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.”
Mr. Autobee argues that Johnson supplies the right asserted because there is no
meaningful distinction between the ACCA’s residual clause and the risk of force clause
in § 924(c)(3)(B). In support, he cites Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016).
In Golicov, we held that the risk of force clause in 18 U.S.C. § 16(b) is unconstitutionally
vague under the principles announced in Johnson. Id. at 1072. The risk of force clause in
§ 16(b) is identical to the risk of force clause in § 924(c)(3)(B). Thus, it is reasonable to
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argue that we would similarly extend the reasoning of Johnson to invalidate the risk of
force clause in § 924(c)(3)(B).2
But in determining the timeliness of Mr. Autobee’s § 2255 motion, the question is
not whether a court of appeals has recognized the right at issue, but instead whether the
Supreme Court itself has done so. See 28 U.S.C. § 2255(f)(3) (measuring the one-year
filing deadline from “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court . . .”
(emphasis added)); E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006) (stating
that “a decision taken from a federal court of appeals does not provide an independent
basis to trigger the one-year statute of limitations provided under [§ 2255(f)(3)]”).
Accordingly, our extension of Johnson to § 16(b) is not determinative.
Rather, the question is whether Mr. Autobee asserts the same right announced in
Johnson with a different application, or instead a new right that the Supreme Court has
yet to recognize. A right is “new” if it is “not dictated by precedent.” Chaidez v. United
States, 133 S. Ct. 1103, 1107 (2013). And a right is “dictated” by precedent only if it is
“apparent to all reasonable jurists.” Id. (internal quotation marks omitted). Therefore,
Mr. Autobee’s motion is time-barred unless Johnson dictates, or compels, the
invalidation of the risk of force clause in § 924(c)(3)(B).
Even if we were to conclude that the reasoning of Johnson should be extended to
invalidate § 924(c)(3)(B)—which is not itself obvious even after holding that § 16(b) is
2
We specifically noted in Golicov v. Lynch, 837 F.3d 1065, 1072 n.1 (10th Cir.
2016), that “[b]ecause § 924(c)(3)(B) is not implicated in this case, we offer no opinion
on its constitutionality.”
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unconstitutional—it is far from “apparent to all reasonable jurists” that § 924(c)(3)(B) is
unconstitutional under Johnson, as evidenced by the federal courts of appeals that have
rejected vagueness challenges to § 924(c)(3)(B) predicated on Johnson. See United States
v. Prickett, 839 F.3d 697, 699–700 (8th Cir. 2016); United States v. Hill, 832 F.3d 135,
145–50 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 375–79 (6th Cir. 2016). As
a result, Johnson does not dictate the right Mr. Autobee asserts, as he seeks an altogether
new right the Supreme Court has yet to recognize. Because § 2255(f)(3) contemplates a
new right recognized by the Supreme Court, rather than by a lower court, he may not
avail himself of that provision. And no reasonable jurist could debate the district court’s
conclusion that Mr. Autobee’s motion is untimely because he filed it more than one year
after the date his conviction became final.
III. CONCLUSION
For the reasons stated above, we conclude that reasonable jurists could not debate
that the district court correctly denied Mr. Autobee’s § 2255 motion as untimely. We thus
deny Mr. Autobee’s request for a COA and dismiss this appeal in its entirety.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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