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

                             FOR THE TENTH CIRCUIT                               July 30, 2020
                         _________________________________
                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                               No. 20-3086
 v.                                                 (D.C. Nos. 6:20-CV-01041-JWB &
                                                        6:94-CR-10128-JWB-2 &
 PIYARATH S. KAYARATH,                                   6:94-CR-10123-JWB-2)
                                                               (D. Kansas)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________


       Appellant Piyarath Kayarath seeks a certificate of appealability (“COA”) to

challenge the district court’s denial of his 28 U.S.C. § 2255 motion, which argued Hobbs

Act robbery and attempted Hobbs Act robbery are not categorically crimes of violence

under 18 U.S.C. § 924(c), and the district court’s denial of his Fed. R. Civ. P. 60(b)

motion, which argued his 18 U.S.C. § 924(j)(1) conviction is void due to our decision in

United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018).




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
                                 I.      BACKGROUND

       In 1997, Mr. Kayarath was convicted following a jury trial of one count of Hobbs

Act robbery in violation of 18 U.S.C. § 1951 and one count of carrying and using a

firearm during and in relation to a crime of violence, as defined by 18 U.S.C. § 924(c),

and during the course thereof causing the death of a person by murder through the use of

a firearm in violation of 18 U.S.C. § 924(j)(1). See United States v. Kayarath, 41 F.

App’x 255, 256 (10th Cir. 2002).1 He was sentenced to life imprisonment for the

§ 924(j)(1) murder conviction. Id. In 2001, Mr. Kayarath filed a 28 U.S.C. § 2255 motion

challenging his murder conviction. Id. at 256–57. The district court denied the motion,

and a panel of this court denied his subsequent request for a COA. Id.

       In 2016, Mr. Kayarath moved for authorization from this court to file a second or

successive § 2255 motion in order to again challenge his § 924(j)(1) murder conviction.

He argued the predicate offense underlying his murder conviction, namely the Hobbs Act

robbery, does not qualify as a crime of violence as defined by § 924(c) after the Supreme

Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). Specifically, he

claimed Hobbs Act robbery could qualify as a crime of violence only under § 924(c)(3)’s

residual clause, which the Supreme Court, in Davis, invalidated as unconstitutionally

vague. 139 S. Ct. at 2336. In January 2020, a panel of this court granted Mr. Kayarath’s




       1
         At the time Mr. Kayarath was convicted, the provision of § 924 now codified at
subsection (j)(1) was codified at subsection (i)(1). See Kayarath, 41 F. App’x at 257. We
refer to subsection (j)(1) for purposes of this order because that is the current location of
the provision at issue.
                                              2
authorization to file a second or successive § 2255 motion to challenge his § 924(j)(1)

murder conviction in light of Davis.2 See 28 U.S.C. § 2255(h)(2).

       While his motion to file a second or successive § 2255 motion remained pending

in this court, Mr. Kayarath filed in the district court a Fed. R. Civ. P. 60(b) motion for

relief from judgment in his criminal case. He argued his § 924(j)(1) murder conviction is

void following our decision in United States v. Melgar-Cabrera, 892 F.3d 1053 (10th

Cir. 2018), which overruled previous authority and held that § 924(j) sets forth a “discrete

crime” rather than “merely a sentencing enhancement” that applies when a § 924(c)

violation results in murder. 892 F.3d at 1060. Based on Melgar-Cabrera, Mr. Kayarath

asserted numerous errors arising from his being charged with violating both § 924(j) and

§ 924(c) in the same count of the indictment and the jury’s returning of a general verdict

of guilty on that count.3

       After receiving authorization, Mr. Kayarath filed his second or successive § 2255

motion in February 2020. He argued that Hobbs Act robbery does not meet § 924(c)’s

definition of a crime of violence under the elements clause. Because, in his view, Hobbs

Act robbery is not a crime of violence under § 924(c)’s elements clause and because

Davis precluded it from being a crime of violence under the residual clause, Mr. Kayarath


       2
          Mr. Kayarath’s motion was abated between June 2016 and January 2020. See R.
vol. II at 17; see also Order, In re Kayarath, No. 16-3172 (10th Cir. June 24, 2016).
       3
         In a supplement to his Rule 60(b) motion, Mr. Kayarath, citing Miller v.
Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
also argued his life sentence violated the Eighth Amendment because he was eighteen
years old and thus did not have a fully developed brain at the time he committed the
offense. Mr. Kayarath’s application does not seek a COA to pursue this argument.
                                              3
contended he was actually innocent of the § 924(j)(1) murder charge. Mr. Kayarath also

argued the record showed he was charged with, and convicted of, attempted Hobbs Act

robbery, which, following Davis, is not categorically a crime of violence under § 924(c).

       The district court denied Mr. Kayarath’s § 2255 motion, concluding our precedent

foreclosed his argument that Hobbs Act robbery is not categorically a crime of violence

for purposes of § 924(c) and (j)(1). The court ruled Mr. Kayarath’s arguments concerning

attempted Hobbs Act robbery were meritless because the record showed Mr. Kayarath

was charged with, and convicted of, robbery, not attempted robbery. The court also

dismissed Mr. Kayarath’s Rule 60(b) motion for lack of jurisdiction on the ground it

amounted to a second or successive collateral attack on his § 924(j)(1) conviction that has

not been authorized by this court. Finally, the court denied a COA.

                                   II.    DISCUSSION

       Mr. Kayarath filed a notice of appeal and an application seeking a COA to

challenge the district court’s order denying his § 2255 motion and dismissing his Rule

60(b) motion. A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies

§ 2255 relief on the merits, this standard typically requires an applicant to demonstrate

that “‘reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.’” United States v. Springer, 875 F.3d 968, 981 (10th Cir.

2017) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When the district court

denies relief on procedural grounds, such as by dismissing an unauthorized second or

successive § 2255 motion, the applicant must demonstrate “‘that jurists of reason would

                                              4
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. (internal quotation marks omitted) (quoting,

ultimately, Slack, 529 U.S. at 484).

                                A.     Section 2255 Motion

       In his application for a COA, Mr. Kayarath argues, as he did in the district court,

that Hobbs Act robbery is not categorically a crime of violence for purposes of § 924(c)

and thus cannot constitute a predicate offense for his § 924(j)(1) murder conviction.

Because, in his view, Hobbs Act robbery could only constitute a crime of violence under

the residual clause invalidated by the Supreme Court in Davis, Davis compels the

conclusion that his § 924(j)(1) conviction is unconstitutional.

       We are not persuaded. As the district court noted, we held in Melgar-Cabrera that

Hobbs Act robbery categorically “is a crime of violence under the elements clause of

§ 924(c)(3).” 892 F.3d at 1060 n.4 (emphasis added); see also United States v. García-

Ortiz, 904 F.3d 102, 109 (10th Cir. 2018) (“[W]e therefore hold that because the offense

of Hobbs Act robbery has as an element the use or threatened use of physical force

capable of causing injury to a person or property, a conviction for Hobbs Act robbery

categorically constitutes a ‘crime of violence’ under section 924(c)’s [elements] clause.”).

In Melgar-Cabrera, we rejected several arguments Mr. Kayarath now raises in his

application. For instance, Mr. Kayarath asserts that robbery, as defined in the Hobbs Act,

requires the use or threatened use of only de minimis force. However, we concluded it

requires the use or threatened use of violent force, satisfying § 924(c)’s use-of-force

                                              5
requirement. See Melgar-Cabrera, 892 F.3d at 1061–65 (citing, inter alia, Johnson v.

United States, 559 U.S. 133 (2010)). Mr. Kayarath also contends Hobbs Act robbery,

because it may be accomplished by placing another in fear of injury, does not require the

use of physical force. We rejected a similar argument in Melgar-Cabrera, concluding that

taking property from a person by placing him in fear of injury is accomplished by

threatening the application of physical force. See id. at 1065–66; see also García-Ortiz,

904 F.3d at 107 (“[T]he ‘fear of injury’ contemplated by the statute must be like the

‘force’ or ‘violence’ described in the clauses preceding it.”). Subsequent decisions have

likewise rejected Mr. Kayarath’s assertion that Hobbs Act robbery does not satisfy §

924(c)’s use-of-force requirement because it may be accomplished by threatening injury

to property. See García-Ortiz, 904 at 107; United States v. Rojas, 748 F. App’x 777, 779

(10th Cir. 2018); United States v. Dubarry, 741 F. App’x 568, 570 (10th Cir. 2018).

       In sum, Melgar-Cabrera held Hobbs Act robbery satisfies § 924(c)’s elements

clause and is thus categorically a crime of violence for purposes of that provision. Mr.

Kayarath’s arguments challenging this holding have been consistently rejected, and the

Supreme Court’s decision in Davis, on which Mr. Kayarath relied for authorization to

commence this proceeding, does not call it into question. See United States v. Myers, 786

F. App’x 161, 162–63 (10th Cir. 2019). Given this precedent, no jurist of reason would

find the district court’s determination debatable or wrong.

       As he did in the district court, Mr. Kayarath also argues that the Hobbs Act

robbery count of the indictment charged him with attempted Hobbs Act robbery and that

the trial court’s jury instructions demonstrate the jury found him guilty of attempted

                                             6
Hobbs Act robbery. He contends attempted Hobbs Act robbery does not qualify as a

crime of violence under § 924(c) after Davis. The district court ruled this argument was

meritless because the record showed Mr. Kayarath was indicted for, and found guilty of,

robbery, not attempted robbery.

       No jurist of reason would find the district court’s ruling debatable or wrong. As

recited by the trial court in its jury instructions, the indictment’s Hobbs Act count alleged

Mr. Kayarath “did unlawfully . . . obstruct, delay[,] and affect commerce and did attempt

to obstruct, delay[,] and affect commerce,” but it proceeds to allege he did so “by

robbery,” not attempted robbery, and further specifies he “did take and obtain” property

from another, rather than merely attempting to do so. R. vol. IV at 34 (emphasis added).

“This language alleges robbery; it cannot reasonably be construed as alleging attempted

robbery.” United States v. Coyazo, 95 F. App’x 261, 266 (10th Cir. 2004). Moreover, the

trial court instructed the jury that the indictment charged Mr. Kayarath “with robbery,”

explaining that the Hobbs Act criminalizes “obstruct[ing], delay[ing,] or affect[ing]

interstate commerce . . . by robbery.” R. vol. IV at 36 (emphasis added). The court further

instructed the jury that, to find Mr. Kayarath guilty of the Hobbs Act count, it must find

he “obtained or took” another’s property “against the victim’s will, by means of actual or

threatened force, violence, or fear of injury,” which, the court informed the jury, is the

definition of “‘[r]obbery.’” Id. at 37–38 (emphasis added). And, the judgment entered by

the court describes the offense of conviction as “Interference With Commerce By Threats

or Violence,” making no mention of an attempt component. Id. at 67. The jury



                                              7
instructions and the judgment thus confirm Mr. Kayarath was convicted of Hobbs Act

robbery, not attempted Hobbs Act robbery. See Coyazo, 95 F. App’x at 266–67.

       Mr. Kayarath points out both the indictment and jury instructions regarding the

§ 924(j)(1) murder count defined murder in accordance with 18 U.S.C. § 1111, stating

that murder committed in the perpetration of a robbery or attempted robbery is first-

degree murder. See 18 U.S.C. § 924(j) (cross-referencing § 1111’s definition of murder).

These attenuated references to attempted robbery do not alter the analysis. Although the

murder count of the indictment stated a murder committed during an attempted robbery

would qualify for § 924(j)(1) liability, it specifically alleged Mr. Kayarath’s liability was

based on “the robbery” underlying the Hobbs Act count. R. vol. IV at 35 (emphasis

added). Further, the trial court instructed the jury that, to find Mr. Kayarath guilty of the

murder charge, it must find that he “robbed,” not attempted to rob, another and “[d]uring

the robbery,” not attempted robbery, caused the death of another by murder. Id. at 44

(emphasis added). More importantly, the mere fact attempted robbery is mentioned in

relation to the definition of murder for purposes of the § 924(j)(1) count does not change

the fact that both the indictment and the instructions relating to the Hobbs Act count refer

specifically to robbery, not attempted robbery.

       Because we conclude no jurist of reason would find the district court’s ruling that

Mr. Kayarath was charged with, and convicted of, Hobbs Act robbery rather than

attempted Hobbs Act robbery debatable or wrong, we need not address the district court’s

alternative ruling that attempted Hobbs Act robbery does not constitute a crime of

violence under § 924(c).

                                              8
                                   B.      Rule 60(b) Motion

       In evaluating the denial of a Rule 60(b) motion in a habeas case, “[o]ur first task

. . . is to consider . . . the issues raised in the motion in order to determine whether it

represents a second or successive [habeas motion or] a ‘true’ Rule 60(b) motion.”

Spitznas v. Boone, 464 F.3d 1213, 1224 (10th Cir. 2006). A prisoner may not file a

second or successive § 2255 motion unless he first obtains an order from this court

authorizing the district court to consider the motion. See Springer, 875 F.3d at 972.

Absent such authorization, a district court lacks jurisdiction to address the merits of a

second or successive § 2255 motion and must either dismiss the motion or transfer it to

this court if doing so is in the interests of justice. Id.

       The district court determined Mr. Kayarath’s motion amounted to an unauthorized

second or successive § 2255 motion. Mr. Kayarath does not contest this determination in

his application but, instead, continues to press the merits of the motion, arguing his

§ 924(j)(1) conviction is void in light of Melgar-Cabrera’s holding that § 924(j) sets

forth a discrete crime rather than a sentencing enhancement.

       No jurist of reason would find the district court’s procedural ruling debatable or

wrong. Mr. Kayarath’s Rule 60(b) motion amounts to a second or successive § 2255

motion. Not only does he fail to contest the point in his application, but there is no

question the motion “in substance or effect asserts . . . a federal basis for relief from [his]

underlying conviction,” rendering it a second or successive § 2255 motion. Spitznas, 464

F.3d at 1215; see also United States v. Mazun, 369 F. App’x 876, 878 (10th Cir. 2010)

(explaining a motion requiring a court to conclude a criminal judgment is void “is the

                                                 9
proper subject of § 2255 motion, not a Rule 60(b) motion”). Nor is there any doubt Mr.

Kayarath has not been authorized to bring this argument in a second or successive § 2255

motion. His argument does not implicate Davis, so our order authorizing a § 2255 motion

in light of that decision does not aid him. And, a panel of this court previously denied Mr.

Kayarath authorization to assert this same argument in a second or successive § 2255

motion. See Order, In re Kayarath, No. 18-3225 (10th Cir. Oct. 29, 2018).

                                 III.   CONCLUSION

       Accordingly, we DENY Mr. Kayarath’s application for a COA and DISMISS the

appeal.


                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




                                            10
