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

                                      TENTH CIRCUIT                               June 26, 2018

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

              Plaintiff - Appellee,

v.                                                             No. 17-1300
                                                   (D.C. Nos. 1:16-CV-01175-REB and
GARY D. DEWILLIAMS,                                      1:99-CR-00120-REB-1)
                                                                 (Colo.)
              Defendant - Appellant.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY


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



       In June 2002, Gary D. DeWilliams was convicted by a jury of being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The

district judge concluded his criminal history included at least three prior convictions for a

“violent felony” under the Armed Career Criminal Act (ACCA), see 18 U.S.C

§ 924(e)(2)(B), thereby exposing him to a mandatory minimum sentence of 15 years. Id.

§ 924(e)(1). The guideline range was 235-293 months imprisonment. The judge

sentenced him to 293 months. We affirmed on direct appeal. See United States v.

DeWilliams, 85 F. App’x 154 (10th Cir.) (unpublished), cert. denied, 541 U.S. 1055

(2004). The judge denied his first 28 U.S.C. § 2255 motion and we denied a certificate of
appealability (COA). See United States v. DeWilliams, 315 F. App’x 81 (10th Cir. 2009)

(unpublished).

      On June 26, 2015, the United States Supreme Court held the residual clause of the

ACCA to be unconstitutionally vague. Johnson v. United States (Johnson II), --- U.S. ---,

135 S. Ct. 2551, 2557, 2563 (2015). Id. at 2557, 2563. It left untouched the remainder

of the ACCA’s definition of “violent felony” including the elements clause. Id. at 2563.

On April 18, 2016, it made Johnson II’s holding retroactive to cases on collateral review.

Welch v. United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Relying on Johnson II,

DeWilliams filed a motion with this Court for leave to file a second or successive § 2255

motion. We granted authorization.

      His current counseled § 2255 motion1 claims that because the residual clause is

invalid, his prior convictions can qualify as violent felonies under the ACCA only if they

satisfy either the elements clause or the enumerated-offense clause; according to him,

they meet neither. Relevant here, he argues his prior conviction for aggravated federal

bank robbery under 18 U.S.C. § 2113(a) and (d) does not satisfy the elements clause

because it can be committed without the use of physical force, for example, with tear gas

or hydrochloric acid. See United States v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th

Cir. 2005) (concluding Colorado third-degree assault is not a “crime of violence” under

USSG § 2L1.2’s elements clause because it can be committed by “intentionally exposing

someone to hazardous chemicals,” which does not involve the use or threatened use of

      1
         DeWilliams was represented by counsel in the district court and remains so in
this putative appeal.

                                           -2-
physical force). Similarly, his prior convictions (two) for Colorado aggravated robbery

(Colo. Rev. Stat. § 18-4-301) fail to satisfy the elements clause because the Colorado

courts have interpreted the statute to require force “sufficient to render the victim unable

to retain control over” the item being stolen, including “deftly pulling a purse off a

victim’s shoulder causing the strap to break in the process.” (R. Vol. 4 at 121 (quotation

marks omitted).) According to DeWilliams, this is insufficient to satisfy the elements

clause, which the Supreme Court has held to require “violent force—that is, force capable

of causing physical pain or injury to another person.” Johnson v. United States (Johnson

I), 559 U.S. 133, 140 (2010). The judge rejected both arguments2 and denied a certificate

of appealability (COA). DeWilliams renews his request for a COA with this Court.

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

habeas corpus. 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



       2
         Because his prior convictions qualified as violent felonies under the ACCA’s
elements clause rather than the defunct residual clause, the judge decided DeWilliams
had not asserted a bona fide Johnson II claim and his § 2255 motion was untimely
because he was not entitled to the benefit of 28 U.S.C. § 2255(f)(3) (a § 2255 motion is
timely if it is filed 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”).
DeWilliams says the judge was wrong. He is correct. In United States v. Snyder, issued
after the judge’s decision, we held “in order to be timely under § 2255(f)(3), a § 2255
motion need only ‘invoke’ the newly recognized right, regardless of whether or not the
facts of record ultimately support the movant’s claim.” 871 F.3d 1122, 1126 (10th Cir.
2017). DeWilliams’ § 2255 motion “did just that, alleging . . . his ACCA sentence is no
longer valid under Johnson [II].” Id. (quotation marks omitted). Nevertheless, while his
motion may have been timely filed, whether he is entitled to relief is another matter. He
is not so entitled.

                                            -3-
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate

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

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) (quotation marks omitted). He has failed to satisfy his burden and he

candidly says so.

       He concedes his argument concerning his prior conviction for aggravated federal

bank robbery is foreclosed by our decision in United States v. Ontiveros, 875 F.3d 533,

536-37 (10th Cir. 2017), which concluded Perez-Vargas was “no longer viable in light

of” the Supreme Court’s decision in United States v. Castleman, --- U.S. ---, 134 S. Ct.

1405 (2014). In Castleman, the Court explained “‘physical force’ is simply ‘force

exerted by and through concrete bodies,’ as opposed to ‘intellectual force or emotional

force’” and concluded it can be either direct—a punch or kick—or indirect—poisoning.3

134 S. Ct. at 1414-15 (quoting Johnson I, 559 U.S. at 138).

       He also admits his argument that Colorado aggravated robbery does not satisfy the

ACCA’s elements clause is precluded by our decision in United States v. Harris, 844

F.3d 1260, 1270 (10th Cir. 2017) (“[R]obbery in Colorado is a violent felony under the

       3
         This appeal was initially abated pending a decision in United States v. Cravens,
Appeal No. 16-8111. In the meantime, Ontiveros was decided on November 7, 2017,
which foreclosed DeWilliams’ argument concerning his aggravated federal bank robbery
conviction. A decision in Cravens followed on December 19, 2017. See United States v.
Cravens, 719 F. App’x 810 (10th Cir. 2017) (unpublished). The Supreme Court denied
certiorari review in Ontiveros on May 14, 2018, and recently denied certiorari review in
Cravens on June 11, 2018. DeWilliams has not sought to preserve an argument
concerning his federal bank robbery conviction.

                                            -4-
ACCA’s elements clause in § 924(e)(2)(B)(i).”), cert. denied, 138 S. Ct. 1438 (2018); see

also United States v. Torres–Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006) (explaining

that “absent en banc review or intervening Supreme Court precedent, we cannot overturn

another panel’s decision”). He does, however, argue Harris was wrongly decided in

order to preserve the issue for en banc or Supreme Court review. It is so preserved.

       One final matter remains. DeWilliams asks that we abate this case pending the

Supreme Court’s decision in United States v. Stokeling, 684 F. App’x 870 (11th Cir.

2017) (unpublished), cert. granted, 138 S. Ct. 1438 (2018).4 In Stokeling, the Court

granted review (on the same day it denied review in Harris) to decide whether Florida’s

robbery statute, Fla. Stat. Ann. § 812.13, satisfies the ACCA’s elements clause. More

specifically, it will decide whether a state law’s robbery statute which requires the

defendant to overcome the victim’s resistance is categorically a “violent felony” under

the ACCA’s elements clause if that state’s law requires only slight force to overcome that

resistance. In Harris, on the other hand, we interpreted Colorado case law regarding its

robbery statute to require Johnson I level force, i.e., “a violent taking” rather than “mere

touching.” 844 F.3d at 1265-70. Because Stokeling is “highly unlikely to have any

impact on this case,” we decline to abate this case until that case is decided, which may

not occur until June 2019. See United States v. Victorio, 719 F. App’x 857, 858 n.1 (10th

Cir. 2018) (unpublished).

       Because the result reached by the district judge is correct under our precedent, and



       4
           We initially denied this request subject to reconsideration by the merits panel.

                                              -5-
DeWilliams so concedes, we DENY a COA and DISMISS this matter. His request to

proceed on appeal without prepayment of fees (in forma pauperis or ifp) is MOOT

because we have reached the merits of his COA application.




                                       Entered by the Court:



                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                         -6-
