                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             April 16, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1429
                                                    (D.C. Nos. 1:18-CV-01739-RM
 WILLIAM WADE,                                        and 1:16-CR-00079-RM-2)
                                                              (D. Colo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      William Wade, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s denial and dismissal of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We deny Wade’s

COA request and dismiss this appeal.

      Not only are the parties aware of the facts and procedural history of this

matter, but we also outlined the history of Wade’s case in depth in his direct appeal,

United States v. Wade, 719 F. App’x 822 (10th Cir. 2017). Because the facts of his

case are not at issue, we need not repeat the background details here. At its essence,



      *
         This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Wade and his brother pleaded guilty to armed bank robbery under 18 U.S.C.

§ 2113(a) and (d) and brandishing a firearm during a crime of violence under 18

U.S.C. § 924(c)(1)(A)(ii). Wade, 719 F. App’x at 824. On direct appeal, Wade

challenged his § 924(c)(1)(A)(ii) conviction as unconstitutional under Johnson v.

United States, 135 S. Ct. 2551 (2015), and argued the district court improperly

applied § 2B3.1(b)(4)(B)’s two-level enhancement for robberies involving physical

restraint. Wade, 719 F. App’x at 825. We disagreed with both assertions and affirmed

his convictions on December 20, 2017. Id. at 828.

      Subsequently, on July 8, 2018, Wade filed a § 2255 petition seeking to vacate

his sentence due to ineffective assistance of trial and appellate counsel. After

receiving the government’s response and Wade’s reply, the district court denied and

dismissed the petition in a thorough and well-reasoned order. The district court then

declined to issue a COA and denied Wade in forma pauperis status on appeal,

concluding an appeal could not be taken in good faith. Wade moved for

reconsideration and, in the alternative, requested a COA. The district court denied

both. Wade then filed a timely notice of appeal and now seeks our review.

      Because the district court denied Wade a COA, we lack jurisdiction to

consider the merits of his appeal unless we first issue a COA. See 28 U.S.C.

§ 2253(c)(1)(B). We will do so “only if the applicant has made a substantial showing

of the denial of a constitutional right.” § 2253(c)(2). Where, as here, the “district

court has rejected the constitutional claims on the merits, the showing required to

satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable

                                            2
jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 472, 484 (2000).

       In his Combined Opening Brief and COA Application, Wade has raised the

same arguments we addressed in his direct appeal: the constitutionality of his

§ 924(c) conviction and the application of the two-level enhancement under

§ 2B3.1(b)(4)(B). Notably, he does not tie either assertion to a claim of ineffective

assistance of counsel as he did in his § 2255 petition before the district court. In fact,

he does not mention his attorneys in his brief and application at all. Because Wade is

proceeding “pro se, we liberally construe his filings.” James v. Wadas, 724 F.3d

1312, 1315 (10th Cir. 2013). “[B]ut we will not act as his advocate” nor will we craft

his legal arguments. Id. In this case, Wade hasn’t given us much to work with.

       First, Wade argues his § 924(c) conviction must be vacated as

unconstitutionally void for vagueness. Ordinarily, we would deem this argument

procedurally barred and summarily “refuse to reconsider [an argument] presented in a

§ 2255 motion that w[as] raised and adjudicated on direct appeal.” United States v.

Trent, 884 F.3d 985, 994-95 (10th Cir. 2018) (internal quotation marks omitted); see

United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998) (“The law of the case

doctrine posits that when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case.” (internal

quotation marks omitted)). Wade argues, however, that the law of this circuit has

changed since we decided his direct appeal. This would customarily warrant our

review of the matter. See Trent, 884 F.3d at 995 (“An intervening change in the law

                                            3
allows reconsideration of a previous decision in the same case only to the extent the

change affects the previous decision.”). Unfortunately for Wade, he is mistaken on

the status of the law.

       Specifically, Wade argues his § 924(c) conviction should be vacated based on

our holdings in United States v. Hopper, 723 F. App’x 645 (10th Cir. 2018), and

United States v. Salas, 889 F.3d 681 (10th Cir. 2018).1 But Salas and Hopper both

addressed § 924(c)(3)’s residual clause. See Hopper, 723 F. App’x at 646 (“[O]ur

only question on appeal is whether [18 U.S.C.] § 1201(a) qualifies as a crime of

violence under the residual clause of § 924(c)(3)(B).”); Salas, 889 F.3d at 684 (“Mr.

Salas could have been convicted only under the second definition, known as

§ 924(c)(3)’s ‘residual clause.’”). And as we explained to Wade on direct appeal, and

his appellate counsel correctly conceded, his conviction stands under § 924(c)(3)’s

elements clause and is unaffected by cases concerning the unconstitutionality of the

statute’s residual clause. Wade, 719 F. App’x at 826-27. If Wade is trying to argue

his appellate counsel was ineffective for so conceding, he is sorely misguided. Thus,

our decision on the matter in Wade’s direct appeal remains the law of the case; we

will not reconsider it (and even if we did, we would agree with our prior holding

based on United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017)).




       1
        Wade also cites a District of Montana decision, United States v. Meza, No.
CV-16-095-BLG-DLC, 2018 WL 2048899 (D. Mont. May 2, 2018). But that case
also involved the residual clause of § 924(c)(3)(B). Meza, 2018 WL 2048899, at *8.
Even if it did apply, it does not affect the law of the case.
                                          4
      Second, Wade contends we must revisit and overturn our decision in United

States v. Fisher, 132 F.3d 1327 (10th Cir. 1997), because it conflicts with other

circuits and it allowed the district court to improperly apply the two-level

enhancement under § 2B3.1(b)(4)(B) to his sentence.2 But again, this Court has

already addressed and rejected Wade’s challenge to Fisher on direct appeal. Wade,

719 F. App’x at 827-28. As much as Wade asserts that Fisher is wrongly decided,

and despite his cited Fifth and Second Circuit opinions, Fisher remains the law of

this Circuit. We remind Wade, as we also did in his direct appeal, that “[w]e are

bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724

(10th Cir. 1993). His appellate counsel moved for en banc reconsideration of our

holding in his direct appeal, which would have addressed the continued validity of

Fisher, but that request was denied. See Order, United States v. Wade, No. 16-1391

(10th Cir. Feb. 27, 2018) (denying petition for rehearing and denying request to poll

the court for en banc reconsideration). There is nothing more appellate counsel could

have done; any claim of ineffective assistance of counsel in this regard is meritless.

      In his Combined Opening Brief and COA Application, Wade abandons all

other issues and arguments raised in his district-court § 2255 motion; he thus leaves

unchallenged the district court’s rulings regarding them. Accordingly, we deem any



      2
        Specifically, he argues our holding in Fisher conflicts with United States v.
Garcia, 857 F.3d 708 (5th Cir. 2017), and United States v. Paul, 904 F.3d 200 (2d
Cir. 2018).
                                           5
remaining issues in his § 2255 petition waived and will not address them. See United

States v. McIntosh, 723 F. App’x 613, 615 (10th Cir. 2018) (declining to consider

arguments that were raised in a § 2255 motion when the appellant made “no

substantive arguments concerning these rulings” in his COA application and opening

brief); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely

have declined to consider arguments that are not raised, or are inadequately

presented, in an appellant’s opening brief.”).

      After carefully reviewing Wade’s brief and the record on appeal, we conclude

that reasonable jurists would not debate whether the district court erred in denying

and dismissing his § 2255 motion. We therefore deny Wade’s COA application and

dismiss this appeal.

      We also deny Wade’s motion to in forma pauperis because he has failed to

offer “a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal

quotation marks omitted).


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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