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

                                    TENTH CIRCUIT                                May 8, 2017

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                          No. 16-2217
                                                 (D.C. Nos. 1:16-CV-00703-MCA-CG
 JOHN NORBERT CONTRERAS,                             and 1:05-CR-01150-MCA-1)
                                                              (D. N.M.)
           Defendant - Appellant.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       John Norbert Contreras, through counsel, appeals the district court’s order denying

his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Contreras’s application

for a certificate of appealability (COA).

                                     BACKGROUND

       On May 25, 2005, Mr. Contreras was indicted for bank robbery in violation of 18

U.S.C. § 2113(a). He was convicted by a jury on that charge on August 17, 2006. Before

       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
sentencing, the United States gave notice that Mr. Contreras is eligible for imposition of a

mandatory life sentence under 18 U.S.C. § 3559(c)’s enhanced penalty provisions

because he has a total of at least three separate robbery convictions. Section 3559(c)(1),

also known as the federal “three strikes” statute, provides:

       (1) Mandatory life imprisonment.—Notwithstanding any other provision of
       law, a person who is convicted in a court of the United States of a serious
       violent felony shall be sentenced to life imprisonment if—

       (A) the person has been convicted (and those convictions have become
       final) on separate prior occasions in a court of the United States or of a
       State of—

              (i) 2 or more serious violent felonies; or

              (ii) one or more serious violent felonies and one or more serious
              drug offenses; and

       (B) each serious violent felony or serious drug offense used as a basis for
       sentencing under this subsection, other than the first, was committed after
       the defendant’s conviction of the preceding serious violent felony or serious
       drug offense.

The statute defines the term “serious violent felony” as:

       (i) [A] Federal or State offense, by whatever designation and wherever
       committed, consisting of . . . robbery (as described in section 2111, 2113,
       or 2118) . . . or attempt, conspiracy, or solicitation to commit any of the
       above offenses [enumerated-offenses clause]; and

       (ii) any other offense punishable by a maximum term of imprisonment of
       10 years or more that has as an element the use, attempted use, or
       threatened use of physical force against the person of another [force
       (elements) clause] or that, by its nature, involves a substantial risk that
       physical force against the person of another may be used in the course of
       committing the offense [residual clause].

Id. § 3559(c)(2)(F).



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       Mr. Contreras objected to the Presentence Report, arguing that two of his prior

state robbery convictions did not qualify as predicate offenses under § 3559(c). The

district court overruled his objections and sentenced him to life imprisonment under

§ 3559(c). In doing so, the court identified three predicate offenses justifying the life

sentence: (1) Mr. Contreras’s 1981 conviction on nine counts of armed robbery with a

deadly weapon or firearm, each committed on separate occasions, in the State of New

Mexico; (2) his 1999 federal conviction for bank robbery in violation of 18 U.S.C.

§ 2113;1 and (3) his 2006 conviction in the underlying case for bank robbery under 18

U.S.C. § 2113. The court then ruled that Mr. Contreras’s 1981 conviction qualifies as a

“serious violent felony” under § 3559(c)’s enumerated-offenses and elements clauses,

and that his 1999 and 2006 convictions qualify as “serious violent felonies” under the

enumerated-offenses clause. Thus, the court determined as a matter of law that Mr.

Contreras’s robbery offenses were proper predicate offenses under § 3559(c), and found

as a matter of fact that the United States had proven sufficient predicate offenses for

imposition of the mandatory life sentence. The court did not rely on § 3559(c)(2)(F)’s

residual clause in ruling that Mr. Contreras had the necessary three strikes justifying the

life sentence. Mr. Contreras appealed his conviction and sentence, and we affirmed.


       1
         The district court also identified as a predicate offense Mr. Contreras’s 1998
conviction in New Mexico state court for robbing a Sam’s Club, and concluded that the
conviction qualifies as a “serious violent felony” under § 3559(c)’s enumerated-offenses
clause and elements clause. As a result, the court determined that either Mr. Contreras’s
1998 conviction for robbing a Sam’s Club or his 1999 conviction for bank robbery could
qualify as the “second strike” for purposes of imposing a mandatory life sentence under
18 U.S.C. § 3559(c).

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United States v. Contreras, 536 F.3d 1167, 1169 (10th Cir. 2008). The Supreme Court

denied certiorari review on January 12, 2009. Contreras v. United States, 555 U.S. 1117

(2009) (mem.).

       On June 24, 2016, Mr. Contreras moved to vacate the judgment under 28 U.S.C.

§ 2255, arguing that his life sentence under 18 U.S.C. § 3559(c) is unconstitutional in

view of the Supreme Court’s June 26, 2015 decision in Johnson v. United States, 135

S. Ct. 2551 (2015). In Johnson, the Court struck down the residual clause of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 135 S. Ct. at 2557. The ACCA sets a

mandatory minimum sentence of fifteen years for a felon with three or more prior

convictions for a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e). The

ACCA defines a “violent felony” as a crime punishable by more than one year in prison

that falls within one or more of the following categories: (1) it “has as an element the use,

attempted use, or threatened use of physical force against the person of another” (the

elements clause); (2) it “is burglary, arson, . . . extortion, [or] involves use of explosives”

(the enumerated-offenses clause); or (3) it “otherwise involves conduct that presents a

serious potential risk of physical injury to another” (the residual clause). Id.

§ 924(e)(2)(B).

       In Johnson, the Court concluded that imposing an enhanced sentence under the

residual clause of the ACCA violates the Due Process Clause because the residual clause

is impermissibly vague. 135 S. Ct. at 2557. The Court, however, expressly stated that its

decision “does not call into question application of the [ACCA] to the four enumerated

offenses, or the remainder of the Act’s definition of a violent felony.” Id. at 2563. The

                                               4
Court later made Johnson’s holding retroactive to cases on collateral review in Welch v.

United States, 136 S. Ct. 1257, 1265 (2016).

       In his motion, Mr. Contreras argued that the reasoning of Johnson striking down

the ACCA’s residual clause should be extended to invalidate the similar residual clause

language in 18 U.S.C. § 3559(c). The district court denied Mr. Contreras’s petition. The

court concluded that it was unnecessary for it to determine whether to extend Johnson to

the residual clause of § 3559(c) because Mr. Contreras’s “sentence was not enhanced

based on the residual clause.” Indeed, “[t]he serious violent felony offenses used to

sentence [Mr.] Contreras are all either the enumerated offense of robbery (as described in

18 U.S.C. §§ 2111 or 2113) or force (element) clause offenses.” The court declined to

issue a COA. And Mr. Contreras timely appealed.

                                        ANALYSIS

       A prisoner challenging a denial of a 28 U.S.C. § 2255 motion must obtain a COA

as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B). We

will issue a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). “The petitioner must demonstrate that reasonable

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

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A claim can be “debatable” even

if “every jurist of reason might agree, after the COA has been granted and the case has

received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537

U.S. 322, 338 (2003). “In reviewing the denial of a § 2255 motion, we review the district



                                              5
court’s legal rulings de novo and its findings of fact for clear error.” United States v.

Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001).

       Mr. Contreras seeks a COA to proceed with this collateral attack of his sentence

imposed under 18 U.S.C. § 3559(c), which he maintains the district court imposed in

violation of his constitutional due process rights following Johnson. He argues that the

district court erred in concluding as a matter of law that New Mexico robbery and armed

robbery are “serious violent felonies” under either the enumerated- offenses or elements

provisions of § 3559(c).

       Mr. Contreras’s claims are time barred. Ordinarily, a petitioner has only one year

to file his motion from “the date on which the judgment of conviction becomes final.” 28

U.S.C. § 2255(f)(1). That window has long passed. Without referencing it, Mr. Contreras

seemingly relies on § 2255(f)(3), under which the 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.” Johnson appears to be the “right asserted” on which Mr. Contreras

relies in ostensibly maintaining that he timely filed his petition. But Johnson applies only

to sentencing enhancements based on the residual clause. And it is clear that the district

court did not rely on § 3559(c)’s residual clause in imposing the mandatory life sentence;

it explicitly relied on the enumerated-offenses and elements clauses. Therefore, even if

Johnson applies to § 3559(c)—a question we need not reach—Johnson does not afford

Mr. Contreras the relief he here seeks. See United States v. Taylor, No. 16-6223, 2016

WL 7093905, at *2 (10th Cir. Dec. 6, 2016) (unpublished). Because Mr. Contreras

                                              6
cannot rely on Johnson, his § 2255 motion, filed seven years after the judgment in his

criminal case became final, is time barred.

                                     CONCLUSION

       We DENY Mr. Contreras’s request for a COA and DISMISS this matter.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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