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

                                   TENTH CIRCUIT                             November 29, 2016

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

               Plaintiff - Appellee,
                                                             No. 16-5094
 v.                                             (D.C. Nos. 4:16-CV-00264-GKF-FHM
                                                     and 4:11-CR-00117-GKF-1)
 JUAN ANTONIO COLLAZO,                                       (N.D. Okla.)

               Defendant - Appellant.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.


       Juan Antonio Collazo challenges the district court’s orders denying his motion

under 28 U.S.C. § 2255 and denying a certificate of appealability (COA) under 28 U.S.C.

§ 2253(c)(1)(B). He also requests leave to proceed in forma pauperis (IFP) on appeal.

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

request for a COA and his motion to proceed IFP. We therefore dismiss the appeal.

                                   I.   BACKGROUND

       On August 1, 2011, a grand jury returned an indictment charging Mr. Collazo with

one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C.

       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
§§ 922(g)(1) and 924(e)(1). Mr. Collazo pled guilty and was sentenced to 180 months’

imprisonment.

       On May 9, 2016, Mr. Collazo filed a motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. Because Mr. Collazo was sentenced under the Armed

Career Criminal Act (ACCA) and because the Supreme Court held the residual clause of

the ACCA unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015),

Mr. Collazo argued he should be resentenced. On June 1, 2016, the district court

concluded Mr. Collazo’s sentence was not based on the ACCA’s residual clause; it was

based on his four prior convictions for “serious drug offense[s].” Accordingly, the district

court concluded Mr. Collazo “is not entitled to relief under Johnson” and denied his

motion. The district court also denied Mr. Collazo’s request for a COA and denied Mr.

Collazo’s request to proceed IFP on appeal. Mr. Collazo timely filed a notice of appeal

on June 17, 2016.

                                     II.   ANALYSIS

       A prisoner challenging a district court’s denial of habeas corpus relief under 28

U.S.C. § 2255 must obtain a COA as a jurisdictional prerequisite to proceed with an

appeal. 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We

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

constitutional right.” 28 U.S.C. § 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). Because Mr. Collazo

has failed to make the required showing here, we deny his application for a COA.

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       Mr. Collazo first reasserts that his sentence must be reduced under Johnson v.

United States, 135 S. Ct. 2551 (2015). But, in Johnson, the Supreme Court held the

residual clause of the ACCA was unconstitutionally vague, id. at 2563, and Mr. Collazo

was not sentenced under the ACCA’s residual clause. Mr. Collazo qualified for an

enhanced sentence under a separate provision of the ACCA because he had four prior

convictions for “serious drug offense[s].” See 18 U.S.C. § 924(e)(1). We have previously

concluded Johnson “is not pertinent” to such cases. United States v. Turner, 624 F. App’x

624, 626 (10th Cir. 2015) (unpublished). Similarly here, Johnson does not provide a basis

to reduce Mr. Collazo’s sentence.

       As an alternative to his argument under Johnson, Mr. Collazo maintains the

district court at sentencing “misidentified the nature of the prior predicate convictions.”

In particular, Mr. Collazo argues the prior convictions used for ACCA purposes were not

based on separate events and therefore could not provide the requisite number of prior

convictions under § 924(e)(1). Even if we accept this argument and assume the district

court incorrectly treated Mr. Collazo’s prior convictions as separate events, Mr. Collazo

may not raise this argument now. The district court entered final judgment in Mr.

Collazo’s criminal case on April 12, 2012. Mr. Collazo had one year from that date to

assert a habeas challenge to his sentence. 28 U.S.C. § 2255(f). He did not do so. Mr.

Collazo filed the present case under § 2255(f)(3), which allows a prisoner to file a habeas

application within one year of “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.” But this

                                                 3
provision permits only Mr. Collazo’s claim under Johnson. And Johnson does not affect

the separateness of Mr. Collazo’s prior convictions. Mr. Collazo may not use Johnson as

a license to raise all possible challenges to his sentence that could have been raised in an

earlier § 2255 application. Accordingly, Mr. Collazo’s separateness claim is time-barred.

       Finally, Mr. Collazo seeks permission to proceed IFP on appeal. To succeed on

such a motion, “an appellant must show a financial inability to pay the required filing

fees.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (citing 28 U.S.C.

§ 1915(a)). Here, Mr. Collazo concedes he has approximately $1,500.00 in his prison

account. The district court concluded that “[w]ith this balance, . . . [Mr. Collazo] has

sufficient funds to afford the filing of an appeal.” We agree and thus deny Mr. Collazo’s

motion.

                                  III.   CONCLUSION

       Because reasonable jurists would not find the district court’s assessment of Mr.

Collazo’s claims debatable or wrong, we deny Mr. Collazo’s request for a COA and his

motion to proceed IFP on appeal, and we DISMISS this matter.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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