FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 26, 2018
Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1300 (D.C. Nos. 1:16-CV-01175-REB and GARY D. DEWILLIAMS, 1:99-CR-00120-REB-1) (Colo.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.
In June 2002, Gary D. DeWilliams was convicted by a jury of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The
district judge concluded his criminal history included at least three prior convictions for a
“violent felony” under the Armed Career Criminal Act (ACCA), see 18 U.S.C
§ 924(e)(2)(B), thereby exposing him to a mandatory minimum sentence of 15 years. Id.
§ 924(e)(1). The guideline range was 235-293 months imprisonment. The judge
sentenced him to 293 months. We affirmed on direct appeal. See United States v.
DeWilliams, 85 F. App’x 154 (10th Cir.) (unpublished), cert. denied, 541 U.S. 1055
(2004). The judge denied his first 28 U.S.C. § 2255 motion and we denied a certificate of appealability (COA). See United States v. DeWilliams, 315 F. App’x 81 (10th Cir. 2009)
(unpublished).
On June 26, 2015, the United States Supreme Court held the residual clause of the
ACCA to be unconstitutionally vague. Johnson v. United States (Johnson II), --- U.S. ---,
135 S. Ct. 2551, 2557, 2563 (2015). Id. at 2557, 2563. It left untouched the remainder
of the ACCA’s definition of “violent felony” including the elements clause. Id. at 2563.
On April 18, 2016, it made Johnson II’s holding retroactive to cases on collateral review.
Welch v. United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Relying on Johnson II,
DeWilliams filed a motion with this Court for leave to file a second or successive § 2255
motion. We granted authorization.
His current counseled § 2255 motion1 claims that because the residual clause is
invalid, his prior convictions can qualify as violent felonies under the ACCA only if they
satisfy either the elements clause or the enumerated-offense clause; according to him,
they meet neither. Relevant here, he argues his prior conviction for aggravated federal
bank robbery under 18 U.S.C. § 2113(a) and (d) does not satisfy the elements clause
because it can be committed without the use of physical force, for example, with tear gas
or hydrochloric acid. See United States v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th
Cir. 2005) (concluding Colorado third-degree assault is not a “crime of violence” under
USSG § 2L1.2’s elements clause because it can be committed by “intentionally exposing
someone to hazardous chemicals,” which does not involve the use or threatened use of
1 DeWilliams was represented by counsel in the district court and remains so in this putative appeal.
-2- physical force). Similarly, his prior convictions (two) for Colorado aggravated robbery
(Colo. Rev. Stat. § 18-4-301) fail to satisfy the elements clause because the Colorado
courts have interpreted the statute to require force “sufficient to render the victim unable
to retain control over” the item being stolen, including “deftly pulling a purse off a
victim’s shoulder causing the strap to break in the process.” (R. Vol. 4 at 121 (quotation
marks omitted).) According to DeWilliams, this is insufficient to satisfy the elements
clause, which the Supreme Court has held to require “violent force—that is, force capable
of causing physical pain or injury to another person.” Johnson v. United States (Johnson
I), 559 U.S. 133, 140 (2010). The judge rejected both arguments2 and denied a certificate
of appealability (COA). DeWilliams renews his request for a COA with this Court.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional
2 Because his prior convictions qualified as violent felonies under the ACCA’s elements clause rather than the defunct residual clause, the judge decided DeWilliams had not asserted a bona fide Johnson II claim and his § 2255 motion was untimely because he was not entitled to the benefit of 28 U.S.C. § 2255(f)(3) (a § 2255 motion is timely if it is filed within one year of “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”). DeWilliams says the judge was wrong. He is correct. In United States v. Snyder, issued after the judge’s decision, we held “in 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.” 871 F.3d 1122, 1126 (10th Cir. 2017). DeWilliams’ § 2255 motion “did just that, alleging . . . his ACCA sentence is no longer valid under Johnson [II].” Id. (quotation marks omitted). Nevertheless, while his motion may have been timely filed, whether he is entitled to relief is another matter. He is not so entitled.
-3- right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate
“that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should 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). He has failed to satisfy his burden and he
candidly says so.
He concedes his argument concerning his prior conviction for aggravated federal
bank robbery is foreclosed by our decision in United States v. Ontiveros, 875 F.3d 533,
536-37 (10th Cir. 2017), which concluded Perez-Vargas was “no longer viable in light
of” the Supreme Court’s decision in United States v. Castleman, --- U.S. ---, 134 S. Ct.
1405 (2014). In Castleman, the Court explained “‘physical force’ is simply ‘force
exerted by and through concrete bodies,’ as opposed to ‘intellectual force or emotional
force’” and concluded it can be either direct—a punch or kick—or indirect—poisoning.3
134 S. Ct. at 1414-15 (quoting Johnson I, 559 U.S. at 138).
He also admits his argument that Colorado aggravated robbery does not satisfy the
ACCA’s elements clause is precluded by our decision in United States v. Harris, 844
F.3d 1260, 1270 (10th Cir. 2017) (“[R]obbery in Colorado is a violent felony under the
3 This appeal was initially abated pending a decision in United States v. Cravens, Appeal No. 16-8111.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 26, 2018
Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1300 (D.C. Nos. 1:16-CV-01175-REB and GARY D. DEWILLIAMS, 1:99-CR-00120-REB-1) (Colo.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.
In June 2002, Gary D. DeWilliams was convicted by a jury of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The
district judge concluded his criminal history included at least three prior convictions for a
“violent felony” under the Armed Career Criminal Act (ACCA), see 18 U.S.C
§ 924(e)(2)(B), thereby exposing him to a mandatory minimum sentence of 15 years. Id.
§ 924(e)(1). The guideline range was 235-293 months imprisonment. The judge
sentenced him to 293 months. We affirmed on direct appeal. See United States v.
DeWilliams, 85 F. App’x 154 (10th Cir.) (unpublished), cert. denied, 541 U.S. 1055
(2004). The judge denied his first 28 U.S.C. § 2255 motion and we denied a certificate of appealability (COA). See United States v. DeWilliams, 315 F. App’x 81 (10th Cir. 2009)
(unpublished).
On June 26, 2015, the United States Supreme Court held the residual clause of the
ACCA to be unconstitutionally vague. Johnson v. United States (Johnson II), --- U.S. ---,
135 S. Ct. 2551, 2557, 2563 (2015). Id. at 2557, 2563. It left untouched the remainder
of the ACCA’s definition of “violent felony” including the elements clause. Id. at 2563.
On April 18, 2016, it made Johnson II’s holding retroactive to cases on collateral review.
Welch v. United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Relying on Johnson II,
DeWilliams filed a motion with this Court for leave to file a second or successive § 2255
motion. We granted authorization.
His current counseled § 2255 motion1 claims that because the residual clause is
invalid, his prior convictions can qualify as violent felonies under the ACCA only if they
satisfy either the elements clause or the enumerated-offense clause; according to him,
they meet neither. Relevant here, he argues his prior conviction for aggravated federal
bank robbery under 18 U.S.C. § 2113(a) and (d) does not satisfy the elements clause
because it can be committed without the use of physical force, for example, with tear gas
or hydrochloric acid. See United States v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th
Cir. 2005) (concluding Colorado third-degree assault is not a “crime of violence” under
USSG § 2L1.2’s elements clause because it can be committed by “intentionally exposing
someone to hazardous chemicals,” which does not involve the use or threatened use of
1 DeWilliams was represented by counsel in the district court and remains so in this putative appeal.
-2- physical force). Similarly, his prior convictions (two) for Colorado aggravated robbery
(Colo. Rev. Stat. § 18-4-301) fail to satisfy the elements clause because the Colorado
courts have interpreted the statute to require force “sufficient to render the victim unable
to retain control over” the item being stolen, including “deftly pulling a purse off a
victim’s shoulder causing the strap to break in the process.” (R. Vol. 4 at 121 (quotation
marks omitted).) According to DeWilliams, this is insufficient to satisfy the elements
clause, which the Supreme Court has held to require “violent force—that is, force capable
of causing physical pain or injury to another person.” Johnson v. United States (Johnson
I), 559 U.S. 133, 140 (2010). The judge rejected both arguments2 and denied a certificate
of appealability (COA). DeWilliams renews his request for a COA with this Court.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional
2 Because his prior convictions qualified as violent felonies under the ACCA’s elements clause rather than the defunct residual clause, the judge decided DeWilliams had not asserted a bona fide Johnson II claim and his § 2255 motion was untimely because he was not entitled to the benefit of 28 U.S.C. § 2255(f)(3) (a § 2255 motion is timely if it is filed within one year of “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”). DeWilliams says the judge was wrong. He is correct. In United States v. Snyder, issued after the judge’s decision, we held “in 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.” 871 F.3d 1122, 1126 (10th Cir. 2017). DeWilliams’ § 2255 motion “did just that, alleging . . . his ACCA sentence is no longer valid under Johnson [II].” Id. (quotation marks omitted). Nevertheless, while his motion may have been timely filed, whether he is entitled to relief is another matter. He is not so entitled.
-3- right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate
“that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should 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). He has failed to satisfy his burden and he
candidly says so.
He concedes his argument concerning his prior conviction for aggravated federal
bank robbery is foreclosed by our decision in United States v. Ontiveros, 875 F.3d 533,
536-37 (10th Cir. 2017), which concluded Perez-Vargas was “no longer viable in light
of” the Supreme Court’s decision in United States v. Castleman, --- U.S. ---, 134 S. Ct.
1405 (2014). In Castleman, the Court explained “‘physical force’ is simply ‘force
exerted by and through concrete bodies,’ as opposed to ‘intellectual force or emotional
force’” and concluded it can be either direct—a punch or kick—or indirect—poisoning.3
134 S. Ct. at 1414-15 (quoting Johnson I, 559 U.S. at 138).
He also admits his argument that Colorado aggravated robbery does not satisfy the
ACCA’s elements clause is precluded by our decision in United States v. Harris, 844
F.3d 1260, 1270 (10th Cir. 2017) (“[R]obbery in Colorado is a violent felony under the
3 This appeal was initially abated pending a decision in United States v. Cravens, Appeal No. 16-8111. In the meantime, Ontiveros was decided on November 7, 2017, which foreclosed DeWilliams’ argument concerning his aggravated federal bank robbery conviction. A decision in Cravens followed on December 19, 2017. See United States v. Cravens, 719 F. App’x 810 (10th Cir. 2017) (unpublished). The Supreme Court denied certiorari review in Ontiveros on May 14, 2018, and recently denied certiorari review in Cravens on June 11, 2018. DeWilliams has not sought to preserve an argument concerning his federal bank robbery conviction.
-4- ACCA’s elements clause in § 924(e)(2)(B)(i).”), cert. denied, 138 S. Ct. 1438 (2018); see
also United States v. Torres–Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006) (explaining
that “absent en banc review or intervening Supreme Court precedent, we cannot overturn
another panel’s decision”). He does, however, argue Harris was wrongly decided in
order to preserve the issue for en banc or Supreme Court review. It is so preserved.
One final matter remains. DeWilliams asks that we abate this case pending the
Supreme Court’s decision in United States v. Stokeling, 684 F. App’x 870 (11th Cir.
2017) (unpublished), cert. granted, 138 S. Ct. 1438 (2018).4 In Stokeling, the Court
granted review (on the same day it denied review in Harris) to decide whether Florida’s
robbery statute, Fla. Stat. Ann. § 812.13, satisfies the ACCA’s elements clause. More
specifically, it will decide whether a state law’s robbery statute which requires the
defendant to overcome the victim’s resistance is categorically a “violent felony” under
the ACCA’s elements clause if that state’s law requires only slight force to overcome that
resistance. In Harris, on the other hand, we interpreted Colorado case law regarding its
robbery statute to require Johnson I level force, i.e., “a violent taking” rather than “mere
touching.” 844 F.3d at 1265-70. Because Stokeling is “highly unlikely to have any
impact on this case,” we decline to abate this case until that case is decided, which may
not occur until June 2019. See United States v. Victorio, 719 F. App’x 857, 858 n.1 (10th
Cir. 2018) (unpublished).
Because the result reached by the district judge is correct under our precedent, and
4 We initially denied this request subject to reconsideration by the merits panel.
-5- DeWilliams so concedes, we DENY a COA and DISMISS this matter. His request to
proceed on appeal without prepayment of fees (in forma pauperis or ifp) is MOOT
because we have reached the merits of his COA application.
Entered by the Court:
Terrence L. O’Brien United States Circuit Judge
-6-