                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  February 21, 2018
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 17-1081
                                            (D.C. Nos. 1:16-CV-01538-LTB and
 PATRICK SALVADOR,                                1:06-CR-00032-LTB-1)
                                                         (D. Colo.)
              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


      In 2006, Mr. Patrick Salvador pleaded guilty to two counts of using a

firearm during and in relation to a crime of violence pursuant to 18 U.S.C. §§ 2 &

924(c), for which he was sentenced to 420 months’ imprisonment. The predicate

crime of violence was armed bank robbery, 18 U.S.C. § 2113(a), (d). On June 20,

2016, Mr. Salvador filed a motion under 28 U.S.C. § 2255 to vacate his sentence

on the ground that the Supreme Court’s decision in Johnson v. United States, ---

U.S. ----, 135 S. Ct. 2551 (2015), which invalidated as unconstitutionally vague

the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C.

      *
              This Order is not binding precedent, except under the doctrines of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.
§ 924(e)(2)(B)(ii), 1 necessarily invalidated the similarly-worded risk-of-force

residual clause in 18 U.S.C. § 924(c)(3)(B) 2 that had been applied to him.


      1
             Section 924(e)(2)(B) of the ACCA states:

             the term “violent felony” means 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 [i.e., the elements clause] or

                   (ii) is burglary, arson, extortion, involves use of
                   explosives, [i.e., the enumerated-offense clause] or
                   otherwise involves conduct that presents a serious
                   potential risk of physical injury to another [i.e., the
                   residual clause].

      18 U.S.C. § 924(e)(2)(B) (emphasis added).
      2
             Section 924(c)(3) states:

             For purposes of this subsection the term “crime of violence”
             means an offense that is a felony and an offense that is a
             felony and—

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

                   (B) 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 [i.e.,
                   the risk-of-force residual clause].

                                                                       (continued...)

                                          2
      The district court denied Mr. Salvador’s § 2255 motion on two grounds. It

determined that the motion was untimely, and concluded in the alternative that

armed robbery is a crime of violence under § 924(c)(3), even if the risk-of-force

residual clause of that statute is invalid under Johnson. R. at 104 (Order, dated

Jan. 26, 2017). Mr. Salvador now seeks a Certificate of Appealability (COA) to

challenge this decision. However, because no reasonable jurists would debate the

correctness of the district court’s determination that Mr. Salvador’s motion is

untimely, we deny Mr. Salvador’s request for a COA.

                                          I

      A prisoner challenging a denial of a § 2255 motion must obtain a COA to

proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B); see also Clark v. Okla., 468

F.3d 711, 713 (10th Cir. 2016) (“A COA is a jurisdictional prerequisite to our

review.”). We will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a

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

prisoner must satisfy a two-part standard: 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.



      2
       (...continued)
      18 U.S.C. § 924(c)(3) (emphasis added).

                                          3
473, 484 (2000) (emphasis added).

                                          II

      Mr. Salvador contends that the district court incorrectly determined that his

motion is time-barred. Mr. Salvador 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). Because that date has long since passed, Mr.

Salvador relies on § 2255(f)(3), under which the 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. Salvador says that he asserts the right that Johnson newly recognized,

and that the Supreme Court subsequently determined that Johnson’s right should

be applied retroactively to cases on collateral review. See Welch v. United States,

--- U.S. ----, 136 S. Ct. 1257 (2016). Specifically, Mr. Grant contends that the

“right” that § 2255(f)(3) contemplates is “not limited to a particular statute or

particular language”; rather, “it encompasses broad principles that can be applied

to different statutes and different language.” Aplt.’s Opening Br. at 6. Thus, Mr.

Salvador reasons that “his § 2255 motion is timely under § 2255(f)(3)”—even

though a different statute (i.e., § 924(c)) and different language was at issue in his

case than in Johnson—because he properly asserts the general principle (i.e., the

right) that Johnson establishes, “namely that the abstract inquiry demanded by the


                                          4
residual clause is unconstitutionally vague,” and he filed his motion within the

one-year period after Johnson was decided. Id.

      However, we recently rejected precisely such reasoning in United States v.

Greer, and no reasonable jurist could deem Mr. Salvador’s § 2255 motion timely

in Greer’s wake. United States v. Greer, --- F.3d ----, No. 16-1282, 2018 WL

721675, at *5 (10th Cir. Feb. 6, 2018). Greer makes clear that “the only right

recognized by the Supreme Court in Johnson was a defendant’s right not to have

his sentence increased under the residual clause of the ACCA.” Id. (emphasis

added). That is, a defendant cannot invoke Johnson to proceed under § 2255(f)(3)

unless the defendant is challenging on vagueness grounds the ACCA’s residual

clause. Id. (holding time-barred a motion challenging the residual clause of the

mandatory Sentencing Guidelines). This principle is controlling, even if we

assume arguendo that “there is no meaningful distinction between the ACCA’s

residual clause and the risk of force [residual] clause in § 924(c)(3)(B).” United

States v. Autobee, 701 F. App’x. 710, 713 (10th Cir. 2017) (unpublished)

(denying, on timeliness grounds, a COA to a defendant asserting essentially the

same claim as Mr. Salvador). In light of Greer, no reasonable jurist could debate

the propriety of the district court’s determination that Mr. Salvador’s motion was

untimely because “Johnson did not recognize the right that Mr. Salvador asserts

in his § 2255 motion.” R. at 106.




                                         5
                                     III

      For the foregoing reasons, we DENY Mr. Salvador’s request for a COA and

dismiss the matter.



                                   ENTERED FOR THE COURT



                                   Jerome A. Holmes
                                   Circuit Judge




                                      6
