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

                                    TENTH CIRCUIT                                July 6, 2017

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

           Plaintiff - Appellee,
                                                             No. 17-1082
v.                                                  (D.C. No. 1:16-CV-01526-LTB
                                                     and 1:05-CR-00054-LTB-1)
 GEORGE ANTHONY AUTOBEE,                                    (D. Colorado)

           Defendant - Appellant.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       George Anthony Autobee, through counsel, seeks a certificate of appealability

(COA) to challenge the district court’s denial of his motion under 28 U.S.C. § 2255 to

vacate his sentence. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we

deny Mr. Autobee’s request for a COA and dismiss this appeal in its entirety.

                                    I.   BACKGROUND

       Mr. Autobee pled guilty and was convicted of two counts of using a firearm

during and in relation to a crime of violence under 18 U.S.C. § 924(c). The predicate


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
crime of violence was armed bank robbery, 18 U.S.C. § 2113(a), (d). In 2006, Mr.

Autobee was sentenced to 60 months’ imprisonment on Count 1 and 240 months’

imprisonment on Count 2, for a total prison term of 300 months. Mr. Autobee did not file

a direct appeal.

       On June 20, 2016, Mr. Autobee filed a 28 U.S.C. § 2255 motion requesting that

the district court vacate his sentence based on the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015). In Johnson, which issued on June 26, 2015, the

Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA)

is unconstitutionally vague. Id. at 2557.1 The ACCA’s residual clause defines a “violent

felony” as a felony that “involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

       Relying on Johnson, Mr. Autobee argued in his motion that armed bank robbery is

not a “crime of violence” under 18 U.S.C. § 924(c)(3). Section 924(c)(3) defines “crime

of violence” as a felony that:

       (A) has as an element the use, attempted use, or threatened use of physical
       force against the person or property of another, or

       (B) by its nature, involves a substantial risk that physical force against the
       person or property of another may be used in the course of committing the
       offense.

Id. § 924(c)(3). Mr. Autobee claimed that armed bank robbery does not constitute a crime

of violence under § 924(c)(3)(A), also known as the elements clause, and that he was

therefore necessarily convicted under § 924(c)(3)(B), also known as the risk of force

       1
        The Court later made Johnson’s holding retroactive to cases on collateral review
in Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
                                             2
clause. Mr. Autobee further maintained that the risk of force clause is unconstitutionally

vague because of its similarity to the ACCA’s residual clause.

       In response, the government contended that Mr. Autobee’s motion is untimely

because it was filed more than one year after the judgment of conviction became final.

See 28 U.S.C. § 2255(f)(1). And, even though Mr. Autobee filed his motion within one

year of Johnson, the government claimed that Johnson did not establish the right Mr.

Autobee now asserts, i.e., that § 924(c)(3)(B) is unconstitutionally vague. See 28 U.S.C.

§ 2255(f)(3). The government further argued that, even if Mr. Autobee’s motion is

timely, § 924(c)(3)(B) is not unconstitutionally vague after Johnson. And even if it is, the

government asserted that armed bank robbery is still a crime of violence under the

elements clause.

       The district court agreed with the government and denied Mr. Autobee’s motion.

The court first ruled that Mr. Autobee’s motion is untimely because he filed it more than

one year after the judgment of conviction became final and Johnson did not establish the

right Mr. Autobee now asserts. But the court also ruled that even if his motion were

deemed timely and the risk of force clause assumed to be invalid, Mr. Autobee could not

prevail because armed bank robbery is a crime of violence under the elements clause.

                                   II.   DISCUSSION

       Mr. Autobee now seeks a COA so he can appeal the district court’s ruling. Below,

we first provide the legal standard governing the issuance of a COA. We then analyze the

timeliness of Mr. Autobee’s motion.



                                             3
                                  A. Certificate of Appealability

       A prisoner challenging a district court’s denial of a 28 U.S.C. § 2255 motion must

first obtain a COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C.

§ 2253(c)(1)(B); see Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (“A COA is

a jurisdictional pre-requisite to our review.”). We will issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).

Where a district court denies a petition on procedural grounds—such as untimeliness—

without reaching the merits of the underlying constitutional claims, a prisoner must

satisfy a two-part standard to obtain a COA. He must show “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) (emphasis

added). The prisoner must overcome both hurdles, as “[e]ach component . . . is part of a

threshold inquiry.” Id. at 485.

       Instead of addressing the threshold requirements in order, we may “resolve the

issue whose answer is more apparent from the record and arguments.” Id. Because we

ordinarily “will not pass upon a constitutional question . . . if there is also present some

other ground upon which the case may be disposed of,” we generally resolve procedural

issues first. Id. (internal quotation marks omitted). “Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a reasonable

jurist could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id. at 484. But if we find that

                                               4
reasonable jurists could debate the resolution of the procedural issues, we must then

consider whether the prisoner’s motion states valid constitutional claims. In doing so, we

“simply take a quick look at the face of the [petition] to determine whether the petitioner

has facially alleged the denial of a constitutional right.” Paredes v. Atherton, 224 F.3d

1160, 1161 (10th Cir. 2000) (internal quotation marks omitted). We are limited to “an

overview of the claims in the habeas petition and a general assessment of their merits,”

rather than “full consideration of the factual or legal bases adduced in support of the

claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Buck v. Davis, 137 S.

Ct. 759, 773 (2017) (“When a court of appeals sidesteps the COA process by first

deciding the merits of an appeal, and then justifying its denial of a COA based on its

adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.”

(quoting Miller-El, 537 U.S. at 336–37)).

       Here, after carefully considering the district court’s order and the record on appeal,

we conclude that Mr. Autobee is not entitled to a COA to challenge the district court’s

denial of his § 2255 motion because reasonable jurists could not debate whether the

district court was correct in its procedural ruling. Accordingly, we deny Mr. Autobee’s

request for a COA and dismiss his appeal for the reasons set forth below.

                           B. Timeliness of Mr. Autobee’s Motion

       Mr. Autobee would ordinarily have one year to file his § 2255 motion from “the

date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). That

deadline has come and gone, as Mr. Autobee filed his motion almost ten years after his

conviction became final. Mr. Autobee therefore relies on § 2255(f)(3), under which the

                                              5
one-year period runs 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.” Mr. Autobee filed his

motion less than one year after the Court decided Johnson, so the issue is whether

reasonable jurists could debate the district court’s conclusion that Johnson did not

establish the right Mr. Autobee now asserts.

       Recall that the Court in Johnson invalidated the ACCA’s residual clause for being

unconstitutionally vague. The residual clause defines a “violent felony” as a felony that

“involves conduct that presents a serious potential risk of physical injury to another.” 18

U.S.C. § 924(e)(2)(B)(ii). This provision is similar, but not identical, to the risk of force

clause in 18 U.S.C. § 924(c)(3)(B), which defines a “crime of violence” as a felony “that

by its nature, involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.”

       Mr. Autobee argues that Johnson supplies the right asserted because there is no

meaningful distinction between the ACCA’s residual clause and the risk of force clause

in § 924(c)(3)(B). In support, he cites Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016).

In Golicov, we held that the risk of force clause in 18 U.S.C. § 16(b) is unconstitutionally

vague under the principles announced in Johnson. Id. at 1072. The risk of force clause in

§ 16(b) is identical to the risk of force clause in § 924(c)(3)(B). Thus, it is reasonable to




                                               6
argue that we would similarly extend the reasoning of Johnson to invalidate the risk of

force clause in § 924(c)(3)(B).2

       But in determining the timeliness of Mr. Autobee’s § 2255 motion, the question is

not whether a court of appeals has recognized the right at issue, but instead whether the

Supreme Court itself has done so. See 28 U.S.C. § 2255(f)(3) (measuring the one-year

filing deadline 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 . . .”

(emphasis added)); E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006) (stating

that “a decision taken from a federal court of appeals does not provide an independent

basis to trigger the one-year statute of limitations provided under [§ 2255(f)(3)]”).

Accordingly, our extension of Johnson to § 16(b) is not determinative.

       Rather, the question is whether Mr. Autobee asserts the same right announced in

Johnson with a different application, or instead a new right that the Supreme Court has

yet to recognize. A right is “new” if it is “not dictated by precedent.” Chaidez v. United

States, 133 S. Ct. 1103, 1107 (2013). And a right is “dictated” by precedent only if it is

“apparent to all reasonable jurists.” Id. (internal quotation marks omitted). Therefore,

Mr. Autobee’s motion is time-barred unless Johnson dictates, or compels, the

invalidation of the risk of force clause in § 924(c)(3)(B).

       Even if we were to conclude that the reasoning of Johnson should be extended to

invalidate § 924(c)(3)(B)—which is not itself obvious even after holding that § 16(b) is

       2
         We specifically noted in Golicov v. Lynch, 837 F.3d 1065, 1072 n.1 (10th Cir.
2016), that “[b]ecause § 924(c)(3)(B) is not implicated in this case, we offer no opinion
on its constitutionality.”
                                              7
unconstitutional—it is far from “apparent to all reasonable jurists” that § 924(c)(3)(B) is

unconstitutional under Johnson, as evidenced by the federal courts of appeals that have

rejected vagueness challenges to § 924(c)(3)(B) predicated on Johnson. See United States

v. Prickett, 839 F.3d 697, 699–700 (8th Cir. 2016); United States v. Hill, 832 F.3d 135,

145–50 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 375–79 (6th Cir. 2016). As

a result, Johnson does not dictate the right Mr. Autobee asserts, as he seeks an altogether

new right the Supreme Court has yet to recognize. Because § 2255(f)(3) contemplates a

new right recognized by the Supreme Court, rather than by a lower court, he may not

avail himself of that provision. And no reasonable jurist could debate the district court’s

conclusion that Mr. Autobee’s motion is untimely because he filed it more than one year

after the date his conviction became final.

                                  III.   CONCLUSION

       For the reasons stated above, we conclude that reasonable jurists could not debate

that the district court correctly denied Mr. Autobee’s § 2255 motion as untimely. We thus

deny Mr. Autobee’s request for a COA and dismiss this appeal in its entirety.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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