                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       February 4, 2019
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                          Clerk of Court
                                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                             No. 17-7082
 v.                                                (D.C. Nos. 6:16-CV-00201-RAW
                                                  and 6:04-CR-00018-RAW-KEW-1)
 ANTOINE DWAYNE ROBINSON,                                    (E.D. Okla.)

               Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


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


       Appellant Antoine Robinson seeks a certificate of appealability to appeal the

district court’s denial of his 28 U.S.C. § 2255 habeas motion.

       In 2004, Appellant pled guilty to Hobbs Act robbery in violation of 18 U.S.C.

§ 1951, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and

possessing a firearm during a crime of violence (specifically, Hobbs Act robbery) in

violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to a total term of imprisonment

of 324 months, based in part on the sentencing court’s finding that he was a career



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
offender under the then-mandatory Sentencing Guidelines because the instant offense was

a crime of violence and he had at least two prior felony convictions for crimes of

violence. See U.S.S.G. § 4B1.1 (2004).

       In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551,

2555–57 (2015), holding that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), which

defines “violent felony” under the Armed Career Criminal Act, (ACCA) is

unconstitutionally vague. Appellant subsequently filed this motion for habeas relief,

arguing that Johnson’s reasoning would also apply to the residual clause of the definition

of “crime of violence” in the Sentencing Guidelines and in § 924(c), thus calling into

question both Appellant’s sentencing as a career offender and his conviction under

§ 924(c)(1) for possessing a firearm during a crime of violence.

       The district court dismissed Appellant’s § 2255 motion as untimely because it had

not been filed within one year after his conviction became final and Appellant had not

shown that the statute of limitations began to run on a later date. Although Appellant

argued that his motion was timely because it was filed within one year of “the date on

which the [newly recognized, retroactively applicable] right asserted was initially

recognized by the Supreme Court,” § 2255(f)(3), the district court held that the Supreme

Court had not yet recognized the rights asserted by Appellant because Johnson only

provided sentencing relief for defendants sentenced under the ACCA’s residual clause

and did not address other statutes or guidelines that might contain similar or identical

language.

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       Because the district court dismissed Appellant’s habeas petition on procedural

grounds, we will not issue a certificate of appealability unless Appellant shows both “that

jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Each component of this showing “is part of a threshold inquiry,” and we may

“proceed[] first to resolve the issue whose answer is more apparent from the record and

arguments.” Id. at 485.

       Appellant’s argument that Johnson created a new constitutional rule applicable to

the mandatory Sentencing Guidelines is expressly foreclosed by a recent opinion issued

by this court. See United States v. Pullen, No. 17-3194, 2019 WL 348642, at *11 (10th

Cir. Jan. 29, 2019) (“We conclude Johnson did not create a new rule of constitutional law

applicable to the mandatory Guidelines . . . . Although the Supreme Court might reject all

of these considerations and invalidate the residual clause of the mandatory Guidelines, it

has not yet done so.”). In light of this precedential decision, we conclude reasonable

jurists would not debate whether the district court was correct in dismissing as untimely

Appellant’s challenge to his sentencing as a career criminal.

       As for Appellant’s challenge to his § 924(c)(1) conviction, we need not address the

district court’s procedural ruling because we are persuaded that reasonable jurists would

not “find it debatable whether the petition states a valid claim of the denial of a

constitutional right,” Slack, 529 U.S. at 484. Appellant’s argument is that Hobbs Act

                                             -3-
robbery is not a qualifying crime of violence under § 924(c). However, this argument is

precluded by our decision in United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 &

n.4, 1065 (10th Cir. 2018), in which we held that Hobbs Act robbery is categorically a

crime of violence because it includes as an element the use or threatened use of violent

force, and thus the invalidation of the separate residual clause does not change this

crime’s status as a crime of violence. This reasoning was recently reinforced by the

Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544, 555 (2019), in

which the Court held, consistently with our decision in Melgar-Cabrera, that “the degree

of force necessary to commit common-law robbery” is sufficient to satisfy the categorical

definition of crime of violence under the elements clause. Based on these precedential

decisions, reasonable jurists would not debate that Hobbs Act robbery is a crime of

violence under § 924(c)(3)(A), thus foreclosing Appellant’s challenge to his § 924(c)

conviction.

       We accordingly DENY Appellant’s request for a certificate of appealability and

DISMISS the appeal. His motion for leave to proceed in forma pauperis on appeal is

GRANTED.


                                                   ENTERED FOR THE COURT


                                                   Monroe G. McKay
                                                   Circuit Judge




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