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

                            FOR THE TENTH CIRCUIT                               April 13, 2018
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee

v.                                                           No. 17-1132
                                                   (D.C. Nos.1:16-CV-01685-REB &
ROMAN SANTISTEVAN,                                      1:07-CR-00435-REB-2)
                                                              (D. Colo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.
                 _________________________________

       Proceeding pro se, federal prisoner Roman Santistevan requests a certificate of

appealability (COA) to challenge the district court’s order denying his motion to vacate,

set aside, or correct his sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B).

Because Santistevan has failed to satisfy the standard for issuance of a COA, we deny his

request and dismiss this matter.

                                             I.

       Santistevan pled guilty to three counts of Hobbs Act robbery (and aiding and

abetting the same) in violation of 18 U.S.C. §§ 2 and 1951 and one count of using and

carrying a firearm during and in relation to a crime of violence (and aiding and abetting

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
the same) in violation of 18 U.S.C. §§ 2 and 924(c). He received an enhanced sentence

under § 924(c), for a total of 171 months. His convictions became final in 2011. In

2016, he filed a § 2255 motion, citing Johnson v. United States, 135 S. Ct. 2551 (2015),

in which the Supreme Court struck down the residual clause in the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague.

See Johnson, 135 S. Ct. at 2557; see also Welch v. United States, 136 S. Ct. 1257, 1268

(2016) (holding that “Johnson announced a substantive rule that has retroactive effect in

cases on collateral review”). Santistevan argued that his conviction was void because

Johnson necessarily invalidated the similarly worded residual clause in § 924(c)(3)(B),

which was applied to him.

       The district court denied the motion. First, it held that Hobbs Act robbery remains

a crime of violence under the “force” or “elements” clause of § 924(c)(3)(A) even if the

residual clause in § 924(c)(3)(B) is unconstitutional under Johnson. Second, it held that

the motion was untimely under § 2255(f)(3) because Santistevan is not asserting the right

newly recognized in Johnson and thus is not entitled to an expanded limitations period.

In reaching the latter conclusion, the district court outlined a number of key differences

between the language and context of § 924(c)(3)(B) and § 924(e)(2)(B)(ii). Santistevan

seeks a COA to challenge the district court’s denial of his § 2255 motion.

                                             II.

       To obtain a COA, Santistevan must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing means that

“reasonable jurists could debate whether (or, for that matter, agree that) the petition

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should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (internal quotation marks omitted). Where a district court denies a

petition on procedural grounds—such as untimeliness—the petitioner must demonstrate

“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.” Id. We liberally

construe Santistevan’s pro se filings. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). Even so, we find nothing to justify the issuance of a COA.

       Santistevan identifies two issues for review. The first issue is whether a

conviction for Hobbs Act robbery is a “crime of violence” within the meaning of

§ 924(c)(3). Santistevan contends that Hobbs Act robbery does not satisfy the “force” or

“elements” clause of § 924(c)(3)(A) so his predicate offenses had to fall under the

residual clause in § 924(c)(3)(B); he then argues that the residual clause is

unconstitutionally vague. The second issue is whether his claim that Hobbs Act robbery

is not a crime of violence under § 924(c)(3) was timely filed under § 2255(f)(3). Our

analysis starts and ends with the timeliness question.

       Santistevan asserts that the district court erred in finding his motion to be

time-barred. Section 2255(f) establishes a one-year limitations period that runs from the

latest of several triggering events, one of which is “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,”

                                              3
§ 2255(f)(3). Santistevan pinpoints “the Johnson decision” as “the triggering event under

28 U.S.C. § 2255(f)(3) that enabled this 2255 Motion.” Br. and Appl. for COA at 4; see

also id. (“Until Johnson was decided, Santistevan was unable to seek relief, because even

if the Hobbs Act robbery could be shown not to fall under the Physical Force Clause of

§ 924(c)(3)(A), it unquestionably was a crime of violence under the Residual Clause of

§ 924(c)(3)(B).”).

       But United States v. Greer, 881 F.3d 1241 (10th Cir. 2018), presents an

insurmountable obstacle here. Citing Johnson, the prisoner in Greer moved for

authorization to file a successive habeas petition to challenge his sentence under the

residual clause of § 4B1.2(a)(2) of the mandatory Sentencing Guidelines. Id. at 1244.

In affirming the district court’s denial of the motion, we explained that “[w]hile circuit

courts can apply the reasoning of Johnson to support a finding that the residual clause of

similarly worded statutes are unconstitutionally vague on direct appeal, our review under

AEDPA is more limited.” Id. at 1247. We then stated that “the only right recognized by

the Supreme Court in Johnson was a defendant’s right not to have his sentence increased

under the residual clause of the ACCA.” Id. at 1248. Thus, a movant cannot “raise[] a

true Johnson claim” if “he was not sentenced under any clause of the ACCA.” Id.

       We have since applied Greer in varying contexts to support a determination that

an initial § 2255 motion invoking Johnson was not timely under § 2255(f)(3) when the

underlying statute of conviction was § 924(c), not the ACCA. In United States v.

Salvador, ___ F. App’x ___, No. 17-1081, 2018 WL 1001264, at *2 (10th Cir. Feb. 21,

2018), we denied a COA to a prisoner who was not sentenced under the ACCA but

                                              4
nevertheless argued that his motion was timely because it was filed within a year of

Johnson:

       Greer makes clear that the only right recognized by the Supreme Court in
       Johnson was a defendant’s right not to have his sentence increased under
       the residual clause of the ACCA. That is, a defendant cannot invoke
       Johnson to proceed under § 2255(f)(3) unless the defendant is challenging
       on vagueness grounds the ACCA’s residual clause. This principle is
       controlling, even if we assume arguendo that there is no meaningful
       distinction between the ACCA’s residual clause and the risk of force
       [residual] clause in § 924(c)(3)(B). In light of Greer, no reasonable jurist
       could debate the propriety of the district court’s determination that [the
       § 2255] motion was untimely because Johnson did not recognize the right
       that [the movant] asserts in his § 2255 motion.

Id. at *2 (internal citations and quotation marks omitted). Then in United States v. Wing,

___ F. App’x ___, No. 17-1007, 2018 WL 1616856, at *3 (10th Cir. Apr. 4, 2018), we

reiterated that “Johnson did not recognize a new right relative to § 924(c)(3)(B)” and

affirmed the district court’s denial of relief. See also United States v. Mulay,

___ F. App’x ___, No. 17-3031, 2018 WL 985741, at *1 (10th Cir. Feb. 20, 2018)

(applying Greer to hold that a § 2255 motion to challenge a sentence under the residual

clause in the Sentencing Guidelines was untimely because the right asserted was “broader

than the one recognized in Johnson”). Although these decisions are unpublished, we find

them to be persuasive.

       No reasonable jurist would find it debatable that Santistevan’s § 2255 motion was

untimely in light of Greer and the decisions in its wake.




                                              5
                                   III.

We deny Santistevan’s request for a COA and dismiss this matter.


                                     Entered for the Court


                                     Monroe G. McKay
                                     Circuit Judge




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