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

                                   TENTH CIRCUIT                               January 28, 2019

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

               Plaintiff - Appellee,
                                                              No. 17-3139
 v.                                               (D.C. Nos. 5:16-CV-04095-SAC and
                                                        5:96-CR-40082-SAC-1)
 THOMAS W. HARRIS,                                             (D. Kan.)

               Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.


       Between September 9 and October 21, 1996, Thomas W. Harris and his cohort,

Derrick Johnson, committed seven robberies—three in the District of Kansas and four in

the Western District of Missouri. During the robberies, Harris was armed with a .357

caliber revolver. For this conduct, he was indicted in the District of Kansas with three

counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (b)(1) (Counts 1, 3, and

5) and three counts of use and carry of a firearm during and in relation to a “crime of

violence” in violation of 18 U.S.C. § 924(c) (Counts 2, 4, and 6).

       Relevant here, § 924(c) defines “crime of violence” as any felony offense having

“as an element the use, attempted use, or threatened use of physical force against the
person or property of another” (elements clause). 18 U.S.C. § 924(c)(3)(A). The

“crime[s] of violence” referred to in the § 924(c) counts (Counts 2, 4, and 8) were the

Hobbs Act robberies charged in Counts 1, 5, and 7, respectively. The Hobbs Act robbery

statute, 18 U.S.C. § 1951(a), (b)(1), prohibits one from “obstruct[ing], delay[ing] or

affect[ing] commerce or the movement of any article or commodity in commerce, by

robbery . . . .” 18 U.S.C. § 1951(a). It defines robbery as “the unlawful taking or

obtaining of personal property from the person or in the presence of another, against his

will, by means of actual or threatened force, or violence, or fear of injury, immediate or

future, to his person or property . . . .” 18 U.S.C. § 1951(b)(1).

       Harris pled guilty to Counts 1-5. In exchange for his guilty plea, the government

agreed to dismiss Count 6 and to not file charges in the Western District of Missouri for

the four robberies committed there. The district judge sentenced Harris to a total term of

360 months imprisonment. We affirmed on direct appeal. See United States v. Harris,

185 F.3d 875 (10th Cir. 1999) (unpublished).

       Harris filed a 28 U.S.C. § 2255 motion arguing his Hobbs Act robbery convictions

were not “crime[s] of violence” under § 924(c)(3)’s elements clause.1 The district judge



       1
         Harris’s § 2255 motion is untimely. He had one year from the date his
convictions became final in September 1999 to file his § 2255 motion. See 28 U.S.C. §
2255(f)(1). He did not file it until June 13, 2016, almost 16 years too late. He tries to
rely on 28 U.S.C. § 2255(f)(3), which starts the one year limitations period 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.” But that statute does not help him. In addition to arguing
Hobbs Act robbery does not satisfy § 924(c)(3)’s elements clause, his § 2255 motion
invoked Johnson v. United States (Johnson II), ––– U.S. –––, 135 S. Ct. 2551 (2015),

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saw it differently. He also denied a certificate of appealability (COA) so Harris renews

his request with this Court. We restrict our analysis to the arguments he raises in his

COA application.

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

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

To obtain one, Harris must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He must establish that “reasonable jurists could debate

whether . . . the petition should have been resolved [by the district court] 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) (quotation marks omitted). He

has not met his burden.

       In United States v. Melgar-Cabrera, we decided Hobbs Act robbery is



claiming § 924(c)(3)’s residual clause, like its counterpart in the Armed Career Criminal
Act (ACCA), was unconstitutionally vague. But “the only right recognized by the
Supreme Court in Johnson [II] was a defendant’s right not to have his sentence increased
under the residual clause of the ACCA.” See United States v. Greer, 881 F.3d 1241,
1248 (10th Cir. 2018). Harris was not sentenced under the ACCA but under § 924(c).
Id. (concluding Greer’s § 2255 motion invoking Johnson II was not timely under §
2255(f)(3) because he was not sentenced under the ACCA but rather the mandatory
sentencing guidelines); see also United States v. Santistevan, 730 F. App’x 691, 693-94
(10th Cir. 2018) (unpublished) (concluding § 2255 motion invoking Johnson II was not
timely under § 2255(f)(3) where defendant was convicted and sentenced under § 924(c));
United States v. Wing, 730 F. App’x 592, 595–97 (10th Cir. 2018) (unpublished) (same);
United States v. Salvador, 724 F. App’x 670, 672-73 (10th Cir. 2018) (unpublished)
(same). Nevertheless, because the government did not raise the timeliness issue and the
judge did not resolve the case on that basis, we proceed to the merits of this putative
appeal. See Wood v. Milyard, 566 U.S. 463, 473 (2012) (“[C]ourts of appeals, like
district courts, have the authority—though not the obligation—to raise a forfeited
timeliness defense on their own initiative.”).

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categorically a “crime of violence” under § 924(c)(3)’s elements clause. 892 F.3d 1053,

1060-66 (10th Cir. 2018); see also United States v. Jefferson, 911 F.3d 1290, 1296-99

(10th Cir. 2018). Harris concedes Melgar-Cabrera precludes relief but suggests the

Supreme Court’s grant of certiorari review in Stokeling v. United States, 138 S. Ct. 1438,

86 U.S.L.W. 3492 (Apr. 2, 2018) (No. 17-5554), renders Melgar-Cabrera debatable and

provides encouragement for his arguments to proceed further. It does not. The Supreme

Court recently decided Stokeling but not in Harris’s favor. See Stokeling v. United States,

--- S. Ct. ----, 2019 WL 189343 (Jan. 15, 2019).

       The Court concluded Florida’s robbery statute, which requires the use of force

sufficient to overcome the victim’s resistance, satisfies the ACCA’s elements clause. Id.

at *2. In doing so, it decided the term “physical force” in that clause “encompasses the

degree of force necessary to commit common-law robbery.” Id. at *9. It also reaffirmed

that “physical force” in the ACCA’s elements clause means “force capable of causing

physical pain or injury,” and includes “force as small as ‘hitting, slapping, shoving,

grabbing, pinching, biting, and hair pulling’” because “‘all of them are capable of causing

physical pain or injury.’” Id. at *8 (quoting Johnson v. United States (Johnson I), 559

U.S. 133, 140 (2010), and United States v. Castleman, 572 U.S. 157, 174, 182 (2014)

(Scalia, J., concurring)). It declined to require “severe,” “extreme,” “furious” or

“vehement” force or “any particular degree of likelihood or probability that the force

used will cause physical pain or injury; only potentiality.” Id. at *7-8. (quotation marks

omitted).

       Stokeling did not overrule or call into doubt Melgar-Cabrera; rather, it supports it.

                                            -4-
See Stokeling, 2019 WL 189343, at *9 (concluding “physical force” in the elements

clause “encompasses the degree of force necessary to commit common-law robbery”

(emphasis added)); Melgar-Cabrera, 892 F.3d at 1064 (defining Hobbs Act robbery as

“common-law robbery that affects interstate commerce” (emphasis added)). Nor have we

revisited Melgar-Cabrera in an en banc decision. As a result, it remains the law of this

Circuit. See United States v. Springer, 875 F.3d 968, 975 (10th Cir. 2017) (under the

“principles of horizontal stare decisis,” we are bound by published opinions of prior

panels “absent en banc reconsideration or a superseding contrary decision by the

Supreme Court” (quotation marks omitted)).

       Because the judge’s decision that Hobbs Act robbery is categorically a “crime of

violence” under § 924(c)(3)’s elements clause is not reasonably debatable, we DENY a

COA and DISMISS this putative appeal.




                                                 Entered by the Court:



                                                 Terrence L. O’Brien
                                                 United States Circuit Judge




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