United States v. Bell

Opinion

Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-5043 v. (D.C. Nos. 4:20-CV-00343-GKF-JFJ & 4:06-CR-00140-GKF-1) MICHAEL DEWAYNE BELL, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY* _________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________

Defendant Michael Dewayne Bell, a federal prisoner appearing pro se,

requests certificates of appealability (“COA”) so that he may appeal the district

court’s denial of his authorized, second or successive motion filed pursuant to 28

U.S.C. § 2255, as well as the district court’s denial of his motion to alter or amend

judgment. Because Bell has failed to satisfy the standards for issuance of a COA, we

deny his requests and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 2

I

A

In 2006, Bell was indicted by a federal grand jury for his role in a February 28,

2006 armed robbery of an Arvest Bank in Tulsa, Oklahoma. During the course of the

ensuing criminal proceedings, the government filed a criminal information notifying

Bell of its intent to enhance his sentence pursuant to 18 U.S.C. § 3559(c)(1) based on

two of Bell’s prior Oklahoma state court convictions, one in Pottawatomie County,

Oklahoma, for robbery by force and robbery with firearms after former conviction of

two felonies, and another in Seminole County, Oklahoma, for robbery by force or

fear after former conviction of two felonies. Section 3559(c)(1) requires the

imposition of life imprisonment for a defendant “convicted in a court of the United

States of a serious violent felony” if the person was previously convicted in federal

or state court of “2 or more serious violent felonies” or “one or more serious violent

felonies and one or more serious drug offenses.” 18 U.S.C. § 3559(c)(1).

In May 2007, a jury convicted Bell on two counts: (1) aggravated bank

robbery, in violation of 18 U.S.C. § 2133(a) and (d); and (2) using, brandishing, and

carrying a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(ii). In July 2007, Bell was sentenced to life imprisonment

pursuant to 18 U.S.C. § 3559(c)(1).

Bell filed a direct appeal arguing, in part, that his prior Oklahoma state

convictions did not qualify as “serious violent felonies” and thus did not trigger a

mandatory life sentence under 18 U.S.C. § 3559(c)(1) because the sentences for those

2 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 3

convictions ran concurrently. This court rejected Bell’s argument and affirmed his

convictions and sentence. United States v. Bell, 290 F. App’x 178 (10th Cir. 2008).

B

Following the completion of his direct appeal, Bell filed numerous motions in

the district court and this court seeking to challenge his convictions and sentence.

Included among those were: Bell’s first § 2255 motion in 2010; a 2012 motion

seeking to amend his original § 2255 motion; a consecutive § 2255 motion in 2015

that Bell filed without first seeking permission from this court; a 2016 motion

seeking permission from this court to file a successive § 2255 motion; and

supplements to his § 2255 motion that were filed in 2016, 2017, and 2018.

In September 2019, Bell filed a motion to supplement his § 2255 motion to

reference the United States Supreme Court’s decision in United States v. Davis, 139

S. Ct. 2319 (2019) (holding the residual clause of 18 U.S.C. § 924(c)(3)(B) to be

unconstitutionally vague). This court granted that motion and, in 2020, granted Bell

permission to file a successive § 2255 motion challenging his convictions and

sentence in light of the holding in Davis.

After Bell’s successive § 2255 motion was filed in the district court, the

government moved to dismiss that motion. On May 13, 2021, the district court

issued an opinion and order granting the government’s motion to dismiss and denying

Bell’s successive § 2255 motion. The district court noted at the outset of its opinion

that Bell’s successive “§ 2255 motion implicate[d] two issues”: (1) “whether the

predicate crime for his § 924(c) offense—armed bank robbery—c[ould] only be

3 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 4

considered a ‘crime of violence’ under § 924(c)’s unconstitutional residual clause;

and (2) “whether [his] two prior Oklahoma state convictions for Robbery by Force

and Fear could only be considered predicate ‘crimes of violence’ for purposes of

§ 3559’s ‘three strikes’ provision under that section’s residual clause,” which Bell

alleged was “unconstitutional pursuant to” Davis and other Supreme Court precedent.

ROA, Vol. IV at 73.

Addressing those issues in turn, the district court first concluded that Bell had

“fail[ed] to show by a preponderance of the evidence that his conviction rest[ed] on

§ 924(c)’s unconstitutional residual clause.” Id. at 75. The district court noted in

support that it had reviewed the record of Bell’s federal criminal proceedings and

found no “reference to § 924(c)’s residual clause” in the presentence investigation

report. Id. at 74. The district court also noted that, in any event, “the Tenth Circuit

has determined the federal bank robbery statute, 18 U.S.C. § 2113(d), has ‘as an

element the use, attempted use, or threatened use of physical force.’” Id. (quoting

United States v. Lloyd, 741 F. App’x 570, 573 (10th Cir. 2018)). “Thus,” the district

court concluded, “armed bank robbery in violation of 18 U.S.C. § 2113(d) constitutes

a ‘crime of violence’ under § 924(c)’s elements clause,” and there was “no

indication, either in the record or the background case law, that [the trial judge]

would have applied the law any differently in 2007.” Id.

The district court then turned to and rejected Bell’s argument that his sentence

pursuant to § 3559(c) was unconstitutional in light of Davis and other recent Supreme

Court precedent. In doing so, the district court noted that to succeed on this claim,

4 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 5

Bell had to “first show that it [wa]s more likely than not that he was sentenced under

the residual clause of § 3559,” and in turn had to show “that a new rule of

constitutional law applies” to his case. Id. at 77. With respect to the first of those

required showings, the district court noted it was undisputed that at Bell’s “July 30,

2007 sentencing, the government did not explicitly rely on the enumerated offense,

elements, or residual clause definition of ‘serious violent felony’ in § 3559.” Id. at

79. The district court also noted that, in the course of Bell’s direct appeal, “the

government did not explicitly rely on § 3559’s residual clause as to the robbery

convictions,” and “the Tenth Circuit [ultimately] concluded that Bell’s two prior

felony convictions [we]re sufficient to sustain a life sentence, without any discussion

of the residual clause.” Id. (quotation marks omitted). The district court therefore

concluded that Bell “failed to demonstrate that it [wa]s more likely than not he was

sentenced under the residual clause of § 3559.” Id.

The district court further concluded that “Bell’s prior convictions for robbery

by force or fear under Okla. Stat. tit. 21, § 791 and robbery with firearms under Okla.

Stat. tit. 21, § 801 f[e]ll within the § 3559 elements clause.” Id. The district court

noted in support that “Oklahoma statutes define ‘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.’” Id. (quoting

Okla. Stat. tit. 21, § 791). The district court in turn noted that

Section 801 of title 21 provides for an enhanced sentence if a person “with the use of any firearms or any dangerous weapons, whether the firearm is loaded or not . . . robs or attempts to rob any place of

5 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 6

business, residence or banking institution or any other place inhabited or attended by any person or persons.”

Id. at 79–80 (quoting Okla. Stat. tit. 21, § 801). “Both § 791 and § 801,” the district

court concluded, “include as an element that the robbery be accomplished by ‘force

or fear.’” Id. at 80. The district court also noted that “Tenth Circuit panels ha[d]

concluded in unpublished decisions that robbery by force under Oklahoma law

satisfies the elements clause of the Armed Career Criminal Act’s definition of

‘violent felony,’ which is identical to the elements clause of § 3559 but for the

maximum term of imprisonment requirement.” Id. All of this, the district court

noted, bolstered its conclusion that “Bell fail[ed] to satisfy his burden to demonstrate

that he was sentenced pursuant to § 3559’s residual clause.” Id.

Lastly, the district court concluded that Bell could not show that he was

“rely[ing] on ‘a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.’” Id. at 81 (quoting

28 U.S.C. § 2255(h)). The district court noted that “[i]n Davis, the Supreme Court

held the residual clause, 18 U.S.C. § 924(c)(3)(B), to be unconstitutionally vague,”

but had never “considered the constitutionality of the residual clause of 18 U.S.C.

§ 3559(c)(2)(F)(ii).” Id. The district court concluded that, “[b]ecause the U.S.

Supreme Court has not concluded that the residual clause of § 3559(c) is

unconstitutional,” Bell had “fail[ed] to demonstrate that his claim, insofar as it [wa]s

premised on § 3559(c), relie[d] on a new rule of constitutional law recognized by the

U.S. Supreme Court as required by § 2255(h).” Id.

6 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 7

As part of its opinion denying Bell’s § 2255 motion, the district court denied

his requests for an evidentiary hearing, for appointment of counsel, and for a COA.

Bell filed a motion to alter or amend the judgment, which the district court

denied on May 12, 2022. Bell then filed a notice of appeal on June 6, 2022, followed

by two applications for COA with this court (one application seeks permission to

appeal from the district court’s May 13, 2021 opinion and order, and the second

application seeks permission to appeal from the district court’s May 12, 2022 denial

of Bell’s motion to alter or amend judgment).

II

Bell must obtain a COA to appeal from the district court’s denial of his § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma, 468 F.3d 711, 713 (10th

Cir. 2006) (“A COA is a jurisdictional pre-requisite to our review.”). We may grant

a COA only if Bell “has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This means that where, as here, “a district court has

rejected the constitutional claims on the merits,” the defendant “must demonstrate

that reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In other

words, because the COA inquiry “is not coextensive with a merits analysis,” the

“only question” at the COA stage “is whether the applicant has shown that jurists of

reason could disagree with the district court’s resolution . . . or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quotation marks omitted).

7 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 8

As we have noted, Bell’s successive § 2255 motion was based primarily on the

Supreme Court’s decision in Davis. In Davis, the Supreme Court held that the

statutory definition of “crime of violence” set forth in § 924(c)(3)(B), known as the

residual clause, is unconstitutionally vague. 139 S. Ct. at 2336. Notably, the

Supreme Court did not invalidate the statutory definition of “crime of violence” set

forth in § 924(c)(3)(A), known as the elements clause, which defines a “crime of

violence” to mean a felony offense that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another.”

The district court concluded, and reasonable jurists could not disagree, that

Davis does not render Bell’s § 924(c)(3) conviction infirm. We have held that a

conviction for “armed bank robbery” in violation of 18 U.S.C. § 2113(d), requires,

among other things, that the government prove “the defendant took or attempted to

take, money belonging to a bank, credit union, or any savings and loan association

. . . by using force and violence, or intimidation.” United States v. Davis, 437 F.3d

989, 993 (10th Cir. 2006). In light of this holding, we have in turn held, albeit in

unpublished decisions, that armed bank robbery in violation of § 2113(d)

categorically constitutes a “crime of violence” under § 924(c)’s elements clause.

E.g., United States v. Lucero, 860 F. App’x 589, 594 (10th Cir. 2021). Therefore, the

district court’s decision in this case that armed bank robbery is categorically a “crime

of violence” for purposes of § 924(c)(3) is not reasonably debatable.

Likewise, reasonable jurists could not disagree with the district court’s

conclusion that Davis did not render Bell’s sentence under § 3559(c) infirm. As

8 Appellate Case: 22-5043 Document: 010110716781 Date Filed: 07/27/2022 Page: 9

noted, Davis addressed only the constitutionality of the residual clause of

§ 924(c)(3)(B), and did not address at all the residual clause of § 3559(c)(2)(F)(ii).

Although Bell argues that the reasoning of Davis applies to the residual clause of

§ 3559(c)(2)(F)(ii), that argument fails in the context of a § 2255 motion. As we

have noted in a similar context, “[w]hile circuit courts can apply the reasoning of

Johnson to support a finding that the residual clause of similarly worded statutes are

unconstitutionally vague on direct appeal, our review” under § 2255 “is more

limited.” United States v. Greer, 881 F.3d 1241, 1247 (10th Cir. 2018). Section

2255 “limits federal habeas relief to new constitutional rights recognized by the

Supreme Court.” Id. at 1247. Because the Supreme Court has never addressed the

constitutionality of the residual clause of § 3559(c)(2)(F)(ii), Bell’s challenge to the

constitutionality of his sentence under § 3559(c)(1) necessarily fails.

III

Bell’s motions to amend his applications for COA and his motion to file a

supplemental brief are GRANTED. The applications for COA are DENIED and the

matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe Circuit Judge