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

                                      TENTH CIRCUIT                              June 27, 2018

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

                  Plaintiff - Appellee,

 v.                                                              No. 17-6089
                                                      (D.C. Nos. 5:16-CV-00537-HE and
 MAURICE A. BYERS,                                          5:05-CR-00010-HE-1)
                                                                 (W.D. Okla.)
                  Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


          Petitioner Maurice A. Byers, a federal prisoner, seeks a certificate of appealability

to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas petition.

          In 2005, Petitioner pled guilty to being a felon in possession of a firearm and to

possessing body armor after having been convicted of a crime of violence, in violation of

18 U.S.C. §§ 922(g)(1) and 931. The Armed Career Criminal Act provides for an

enhanced penalty for persons convicted of an offense under 18 U.S.C. § 922(g) who have

three distinct prior convictions for either a violent felony or a serious drug offense. See

18 U.S.C. § 924(e)(1). The court found Petitioner to be an armed career criminal based


      *
        This order is not binding precedent, except under the doctrines of law of the case,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.
on his criminal history of three or more violent felonies—which included previous

Oklahoma convictions for (1) second-degree burglary, (2) robbery with a firearm, (3)

shooting with intent to kill, and (4) assault with a deadly weapon—and sentenced him to

180 months on the felon-in-possession charge and a concurrent sentence of 36 months on

the possession-of-body-armor charge. Petitioner’s conviction and sentence were affirmed

on appeal. United States v. Byers, 172 F. App’x 234 (10th Cir. 2006). At the time of

sentencing, the ACCA defined “violent felony” via three possible clauses:

       any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if committed by an adult,
that—
       (i)    has as an element the use, attempted use, or threatened use of physical force
              against the person of another [use of force or elements clause]; or
       (ii)   is burglary, arson, or extortion, involves use of explosives [enumerated
              clause], or otherwise involves conduct that presents a serious potential risk
              of physical injury to another . . . [residual clause].

18 U.S.C. § 924(e)(2)(B). In his habeas petition, filed in 2016, Petitioner seeks

sentencing relief based on Johnson v. United States, 135 S. Ct. 2551 (2015), which

invalidated the residual clause of 18 U.S.C. § 924(e)(2)(B). The gravamen of his

argument is that he is entitled to Johnson relief because three of his prior convictions

only qualified as violent felonies under this now-void residual clause.

       In a § 2255 appeal, we “review the district court’s findings of fact for clear error

and its conclusions of law de novo.” United States v. Barrett, 797 F.3d 1207, 1213 (10th

Cir. 2015) (quotation marks omitted). The habeas statute “allows a § 2255 motion to be

filed within one year of ‘the date on which the right asserted was initially recognized by

the Supreme Court.’” United States v. Snyder, 871 F.3d 1122, 1126 (2017) (quoting 28

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U.S.C. § 2255(f)(3) (emphasis omitted)). Johnson’s holding that the § 924(e)(2)(B)

residual clause is constitutionally invalid was made retroactive for all cases on collateral

review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016). “[I]n 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.” Snyder, 871 F.3d at 1126. Here, Petitioner invoked the newly recognized right in

Johnson by arguing that the district court necessarily relied on the now-invalid residual

clause in § 924(e)(2)(B) to determine his sentence. Because Petitioner filed his motion to

vacate within a year of Johnson, his motion is timely under § 2255.

       Petitioner has also adequately shown both cause and prejudice. His “Johnson

claim was not reasonably available to [Petitioner] at the time of his direct appeal” in

2005, which this court has previously determined “is sufficient to establish cause.”

Snyder, 871 F.3d at 1127-28; see also United States v. Driscoll, --- F.3d ---, 2018 WL

2976271, at *6-7 (10th Cir. June 14, 2018). If Petitioner is correct regarding his Johnson

claim, he should not have received a sentence enhancement under the ACCA. Given that

a “sentence that is not authorized by law is certainly an ‘actual and substantial

disadvantage’ of ‘constitutional dimensions,’” Snyder, 871 F.3d at 1128 (quoting United

States v. Frady, 456 U.S. 152, 170 (1982)), Petitioner has demonstrated actual prejudice

resulting from the alleged Johnson error, Driscoll, 2018 WL 2976271, at *7. Thus,

Petitioner’s claim overcomes any procedural default. See Snyder, 871 F.3d at 1127-28;

Driscoll, 2018 WL 2976271, at *3.



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       Notwithstanding this preliminary analysis, we will only issue a COA “if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make this showing, an applicant must demonstrate “that

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

have been 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). In § 2255 motions where an unconstitutional

reliance on the § 924(e)(2)(B) residual clause is asserted, the burden is on the defendant

to “prove that the sentencing court, more likely than not, relied on the residual clause to

enhance his sentence under the ACCA.” Driscoll, 2018 WL 2976271, at *6; see also

United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018) (“We hold that the

burden is on the defendant to show by a preponderance of the evidence—i.e., that it is

more likely than not—his claim relies on Johnson.).

       The sentencing court did not articulate which of the three § 924(e)(2) clauses it

relied upon to conclude that Petitioner’s prior convictions constituted “violent felonies”

under the ACCA. Petitioner argues that his past crimes do not constitute predicate

felonies absent the now-void residual clause, so there is no constitutional basis for his §

924(e) enhancement. However, nothing in the sentencing record or the “relevant

background legal environment at the time of sentencing” suggests that Petitioner’s

sentence was enhanced based on the residual clause. Snyder, 871 F.3d at 1129.

       At the time Petitioner was sentenced, we had repeatedly held that Oklahoma

second-degree burglary qualified as an enumerated offense if underlying documents

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indicated that the defendant burgled a building. See United States v. Green, 55 F.3d

1513, 1515-16 (10th Cir. 1995); United States v. Hill, 53 F.3d 1151, 1153-55 (10th Cir.

1995) (en banc); United States v. Amos, 984 F.2d 1067, 1070-71 (10th Cir. 1993); see

also Taylor v. United States, 495 U.S. 575, 602 (1990). In Amos, we declined to analyze

whether Oklahoma second-degree burglary involved “serious potential risk of physical

injury to another” because we concluded the crime “meets the Taylor court’s definition of

burglary” under the enumerated offense clause and thus “qualifies as a ‘violent felony.’”

984 F.2d at 1071. Here, the information states that Petitioner was charged with “wilfully

and knowingly br[eaking] and enter[ing] a dwelling . . . by entering through the bedroom

window, with the intent to commit larceny, without the knowledge or consent of the

owner.” (R. Vol I at 61 (emphasis added).) Petitioner “cites no authority indicating

Oklahoma second-degree burglary also qualified under the ACCA’s residual clause.”

Washington, 890 F.3d at 897, and “there would have been little dispute at the time of . . .

sentencing,” Snyder, 971 F.3d at 1129, that Petitioner’s burglary conviction qualified as

an enumerated offense. See United States v. Rhodes, 721 F. App’x 780, 782 (2018);

Washington, 890 F.3d at 897-98. Thus, Petitioner has not met his burden of showing that

the sentencing court more likely than not relied on the residual clause in classifying his

Oklahoma burglary as a predicate crime of violence.

       Petitioner was convicted for robbery with a firearm under Oklahoma Title 21, §

801, which imposes an increased penalty on a defendant who “with the use of any

firearms or any other dangerous weapon . . . attempts to rob or robs any place of business,

residence or banking institution or any other place inhabited or attended by any person or

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persons.” Okla. Stat. tit. 21, § 801. Oklahoma defines robbery as “a wrongful taking of

personal property in the possession of another, from his person or immediate presence,

and against his will, accomplished by means of force or fear.” Okla. Stat. tit. 21, § 791;

see also Cannon v. State, 107 P.2d 809, 810 (Okla. Crim. App. 1940) (recognizing that

Section 801 was a statute of “classification,” while Section 791 was a statute of

“definition”). This court has previously determined that Oklahoma robbery by “force or

fear,” as defined in § 791, satisfies the use of force clause of the ACCA. See United

States v. Cherry, 641 F. App’x 829, 831-33 (10th Cir. 2016). Robbery with a dangerous

weapon under § 801 thus necessarily includes the wrongful taking of property from

another “by force or fear” using a dangerous weapon. See United States v. Hill, 722 F.

App’x 814, 817 (10th Cir. 2018) (citing Primeaux v. State, 88 P.3d 893, 906 (Okla. Crim.

App. 2004)). “A conviction under § 801 therefore required proof of the use, threatened

use, or attempted use of physical force,” and constitutes a violent felony under one of the

still-valid clauses of 18 U.S.C. § 924(e)(2)(B). Hill, 722 F. App’x at 817. Petitioner

again has not met his burden of showing a likelihood that the sentencing court relied on

the residual clause.

       Petitioner’s final two ACCA predicate crimes are (1) shooting with the intent to

kill and (2) assault with a deadly weapon, both of which were alleged as violations of

Oklahoma Title 21, § 652. At the time Petitioner was charged, this statute provided:

       A. Every person who intentionally and wrongfully shoots another with or
          discharges any kind of firearm, with intent to kill any person, shall upon
          conviction be punished by imprisonment in the State Penitentiary not
          exceeding life.


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       B. Every person who uses any vehicle to facilitate the intentional discharge of any
          kind of firearm, crossbow or other weapon in conscious disregard for the safety
          of any other person or persons shall upon conviction be punished by
          imprisonment in the State Penitentiary for a term of not less than two (2) years
          nor more than twenty (20) years.

       C. Any person who commits any assault and battery upon another by means of
          any deadly weapon, or by such other means or force as is likely to produce
          death, or in any manner attempts to kill another, or in resisting the execution of
          any legal process, shall upon conviction be punished by imprisonment in the
          State Penitentiary not exceeding twenty (20) years.

Okla. Stat. tit. 21, § 652(C). The crime of shooting with the intent to kill, as defined in

subparagraph A, clearly has as an element the use of violent force, capable of causing

physical pain or injury to another person. See Johnson v. United States (Curtis Johnson),

559 U.S. 133, 140 (2010). Petitioner does not challenge this position.

       With respect to Petitioner’s predicate assault, this court has previously determined

that “assault and battery with a deadly weapon under Okla. Stat. Ann. tit. 21, § 652(C)

(1994) [which contained identical language] has as an element the use, attempted use, or

threatened use of physical force against the person of another.” United States v. Burtons,

696 F. App’x 372, 381 (10th Cir. 2017) (citing § 924(e)(2)(B)(i)) (quotation marks

omitted). Petitioner tries to argue that this conviction is not a crime of violence because

Oklahoma law requires “only the slightest force or touching” to constitute a simple

assault, see Steele v. State, 778 P.2d 929, 931 (Okla. Crim. App. 1989), which falls short

of the “violent force—that is, force capable of causing physical pain or injury to another

person”—required to satisfy the use of force or elements clause, Curtis Johnson, 559

U.S. at 140 (emphasis omitted). When presented with this argument, we have

consistently held that “the additional element of a deadly or dangerous weapon makes an

                                              7
apprehension-causing assault a crime of violence, even if the simple assault would not

be.” United States v. Mitchell, 653 F. App’x 639, 643-45 (10th Cir. 2016) (relying on

United States v. Ramon Silva, 608 F.3d 663, 670 (10th Cir. 2010)); see also Washington,

890 F.3d at 899-901 (explaining that Ramon Silva has been abrogated by Mathis v.

United States, 136 S. Ct. 2243 (2016), but that Ramon Silva and other precedents are still

important to consider in determining “[t]he relevant background legal environment at the

time of Defendant’s sentencing,” which is important for deciding whether or not the

conviction was more likely than not based on the residual clause). For these reasons, the

conviction for assault with a deadly weapon stands as a predicate ACCA offense under

the use of force or elements clause and is, therefore, unchanged by Johnson.

       Petitioner has not met his burden of showing by a preponderance of the evidence

that the sentencing court relied on the now-void residual clause in determining that his

predicate convictions were crimes of violence for the purpose of an ACCA-based

sentence enhancement. Reasonable jurists would not debate whether Petitioner has been

denied a constitutional right. For these reasons, we DENY Petitioner’s request for a

certificate of appealability and DISMISS the appeal.

                                                 ENTERED FOR THE COURT



                                                 Monroe G. McKay
                                                 Circuit Judge




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