FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 28, 2019
Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 17-3139 v. (D.C. Nos. 5:16-CV-04095-SAC and 5:96-CR-40082-SAC-1) THOMAS W. HARRIS, (D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.
Between September 9 and October 21, 1996, Thomas W. Harris and his cohort,
Derrick Johnson, committed seven robberies—three in the District of Kansas and four in
the Western District of Missouri. During the robberies, Harris was armed with a .357
caliber revolver. For this conduct, he was indicted in the District of Kansas with three
counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (b)(1) (Counts 1, 3, and
5) and three counts of use and carry of a firearm during and in relation to a “crime of
violence” in violation of 18 U.S.C. § 924(c) (Counts 2, 4, and 6).
Relevant here, § 924(c) defines “crime of violence” as any felony offense having
“as an element the use, attempted use, or threatened use of physical force against the person or property of another” (elements clause). 18 U.S.C. § 924(c)(3)(A). The
“crime[s] of violence” referred to in the § 924(c) counts (Counts 2, 4, and 8) were the
Hobbs Act robberies charged in Counts 1, 5, and 7, respectively. The Hobbs Act robbery
statute, 18 U.S.C. § 1951(a), (b)(1), prohibits one from “obstruct[ing], delay[ing] or
affect[ing] commerce or the movement of any article or commodity in commerce, by
robbery . . . .” 18 U.S.C. § 1951(a). It defines robbery as “the unlawful taking or
obtaining of personal property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of injury, immediate or
future, to his person or property . . . .” 18 U.S.C. § 1951(b)(1).
Harris pled guilty to Counts 1-5. In exchange for his guilty plea, the government
agreed to dismiss Count 6 and to not file charges in the Western District of Missouri for
the four robberies committed there. The district judge sentenced Harris to a total term of
360 months imprisonment. We affirmed on direct appeal. See United States v. Harris,
185 F.3d 875 (10th Cir. 1999) (unpublished).
Harris filed a 28 U.S.C. § 2255 motion arguing his Hobbs Act robbery convictions
were not “crime[s] of violence” under § 924(c)(3)’s elements clause.1 The district judge
1 Harris’s § 2255 motion is untimely. He had one year from the date his convictions became final in September 1999 to file his § 2255 motion. See 28 U.S.C. § 2255(f)(1). He did not file it until June 13, 2016, almost 16 years too late. He tries to rely on 28 U.S.C. § 2255(f)(3), which starts the one year limitations period 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.” But that statute does not help him. In addition to arguing Hobbs Act robbery does not satisfy § 924(c)(3)’s elements clause, his § 2255 motion invoked Johnson v. United States (Johnson II), ––– U.S. –––, 135 S. Ct. 2551 (2015),
-2- saw it differently. He also denied a certificate of appealability (COA) so Harris renews
his request with this Court. We restrict our analysis to the arguments he raises in his
COA application.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
To obtain one, Harris must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). He must establish that “reasonable jurists could debate
whether . . . the petition should have been resolved [by the district court] 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 not met his burden.
In United States v. Melgar-Cabrera, we decided Hobbs Act robbery is
claiming § 924(c)(3)’s residual clause, like its counterpart in the Armed Career Criminal Act (ACCA), was unconstitutionally vague. But “the only right recognized by the Supreme Court in Johnson [II] was a defendant’s right not to have his sentence increased under the residual clause of the ACCA.” See United States v. Greer, 881 F.3d 1241, 1248 (10th Cir. 2018). Harris was not sentenced under the ACCA but under § 924(c). Id. (concluding Greer’s § 2255 motion invoking Johnson II was not timely under § 2255(f)(3) because he was not sentenced under the ACCA but rather the mandatory sentencing guidelines); see also United States v. Santistevan, 730 F. App’x 691, 693-94 (10th Cir. 2018) (unpublished) (concluding § 2255 motion invoking Johnson II was not timely under § 2255(f)(3) where defendant was convicted and sentenced under § 924(c)); United States v. Wing, 730 F. App’x 592, 595–97 (10th Cir. 2018) (unpublished) (same); United States v. Salvador, 724 F. App’x 670, 672-73 (10th Cir. 2018) (unpublished) (same). Nevertheless, because the government did not raise the timeliness issue and the judge did not resolve the case on that basis, we proceed to the merits of this putative appeal. See Wood v. Milyard, 566 U.S. 463, 473 (2012) (“[C]ourts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative.”).
-3- categorically a “crime of violence” under § 924(c)(3)’s elements clause. 892 F.3d 1053,
1060-66 (10th Cir. 2018); see also United States v. Jefferson, 911 F.3d 1290, 1296-99
(10th Cir. 2018). Harris concedes Melgar-Cabrera precludes relief but suggests the
Supreme Court’s grant of certiorari review in Stokeling v. United States, 138 S. Ct. 1438,
86 U.S.L.W. 3492 (Apr. 2, 2018) (No. 17-5554), renders Melgar-Cabrera debatable and
provides encouragement for his arguments to proceed further. It does not. The Supreme
Court recently decided Stokeling but not in Harris’s favor. See Stokeling v.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 28, 2019
Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 17-3139 v. (D.C. Nos. 5:16-CV-04095-SAC and 5:96-CR-40082-SAC-1) THOMAS W. HARRIS, (D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.
Between September 9 and October 21, 1996, Thomas W. Harris and his cohort,
Derrick Johnson, committed seven robberies—three in the District of Kansas and four in
the Western District of Missouri. During the robberies, Harris was armed with a .357
caliber revolver. For this conduct, he was indicted in the District of Kansas with three
counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (b)(1) (Counts 1, 3, and
5) and three counts of use and carry of a firearm during and in relation to a “crime of
violence” in violation of 18 U.S.C. § 924(c) (Counts 2, 4, and 6).
Relevant here, § 924(c) defines “crime of violence” as any felony offense having
“as an element the use, attempted use, or threatened use of physical force against the person or property of another” (elements clause). 18 U.S.C. § 924(c)(3)(A). The
“crime[s] of violence” referred to in the § 924(c) counts (Counts 2, 4, and 8) were the
Hobbs Act robberies charged in Counts 1, 5, and 7, respectively. The Hobbs Act robbery
statute, 18 U.S.C. § 1951(a), (b)(1), prohibits one from “obstruct[ing], delay[ing] or
affect[ing] commerce or the movement of any article or commodity in commerce, by
robbery . . . .” 18 U.S.C. § 1951(a). It defines robbery as “the unlawful taking or
obtaining of personal property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of injury, immediate or
future, to his person or property . . . .” 18 U.S.C. § 1951(b)(1).
Harris pled guilty to Counts 1-5. In exchange for his guilty plea, the government
agreed to dismiss Count 6 and to not file charges in the Western District of Missouri for
the four robberies committed there. The district judge sentenced Harris to a total term of
360 months imprisonment. We affirmed on direct appeal. See United States v. Harris,
185 F.3d 875 (10th Cir. 1999) (unpublished).
Harris filed a 28 U.S.C. § 2255 motion arguing his Hobbs Act robbery convictions
were not “crime[s] of violence” under § 924(c)(3)’s elements clause.1 The district judge
1 Harris’s § 2255 motion is untimely. He had one year from the date his convictions became final in September 1999 to file his § 2255 motion. See 28 U.S.C. § 2255(f)(1). He did not file it until June 13, 2016, almost 16 years too late. He tries to rely on 28 U.S.C. § 2255(f)(3), which starts the one year limitations period 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.” But that statute does not help him. In addition to arguing Hobbs Act robbery does not satisfy § 924(c)(3)’s elements clause, his § 2255 motion invoked Johnson v. United States (Johnson II), ––– U.S. –––, 135 S. Ct. 2551 (2015),
-2- saw it differently. He also denied a certificate of appealability (COA) so Harris renews
his request with this Court. We restrict our analysis to the arguments he raises in his
COA application.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
To obtain one, Harris must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). He must establish that “reasonable jurists could debate
whether . . . the petition should have been resolved [by the district court] 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 not met his burden.
In United States v. Melgar-Cabrera, we decided Hobbs Act robbery is
claiming § 924(c)(3)’s residual clause, like its counterpart in the Armed Career Criminal Act (ACCA), was unconstitutionally vague. But “the only right recognized by the Supreme Court in Johnson [II] was a defendant’s right not to have his sentence increased under the residual clause of the ACCA.” See United States v. Greer, 881 F.3d 1241, 1248 (10th Cir. 2018). Harris was not sentenced under the ACCA but under § 924(c). Id. (concluding Greer’s § 2255 motion invoking Johnson II was not timely under § 2255(f)(3) because he was not sentenced under the ACCA but rather the mandatory sentencing guidelines); see also United States v. Santistevan, 730 F. App’x 691, 693-94 (10th Cir. 2018) (unpublished) (concluding § 2255 motion invoking Johnson II was not timely under § 2255(f)(3) where defendant was convicted and sentenced under § 924(c)); United States v. Wing, 730 F. App’x 592, 595–97 (10th Cir. 2018) (unpublished) (same); United States v. Salvador, 724 F. App’x 670, 672-73 (10th Cir. 2018) (unpublished) (same). Nevertheless, because the government did not raise the timeliness issue and the judge did not resolve the case on that basis, we proceed to the merits of this putative appeal. See Wood v. Milyard, 566 U.S. 463, 473 (2012) (“[C]ourts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative.”).
-3- categorically a “crime of violence” under § 924(c)(3)’s elements clause. 892 F.3d 1053,
1060-66 (10th Cir. 2018); see also United States v. Jefferson, 911 F.3d 1290, 1296-99
(10th Cir. 2018). Harris concedes Melgar-Cabrera precludes relief but suggests the
Supreme Court’s grant of certiorari review in Stokeling v. United States, 138 S. Ct. 1438,
86 U.S.L.W. 3492 (Apr. 2, 2018) (No. 17-5554), renders Melgar-Cabrera debatable and
provides encouragement for his arguments to proceed further. It does not. The Supreme
Court recently decided Stokeling but not in Harris’s favor. See Stokeling v. United States,
--- S. Ct. ----, 2019 WL 189343 (Jan. 15, 2019).
The Court concluded Florida’s robbery statute, which requires the use of force
sufficient to overcome the victim’s resistance, satisfies the ACCA’s elements clause. Id.
at *2. In doing so, it decided the term “physical force” in that clause “encompasses the
degree of force necessary to commit common-law robbery.” Id. at *9. It also reaffirmed
that “physical force” in the ACCA’s elements clause means “force capable of causing
physical pain or injury,” and includes “force as small as ‘hitting, slapping, shoving,
grabbing, pinching, biting, and hair pulling’” because “‘all of them are capable of causing
physical pain or injury.’” Id. at *8 (quoting Johnson v. United States (Johnson I), 559
U.S. 133, 140 (2010), and United States v. Castleman, 572 U.S. 157, 174, 182 (2014)
(Scalia, J., concurring)). It declined to require “severe,” “extreme,” “furious” or
“vehement” force or “any particular degree of likelihood or probability that the force
used will cause physical pain or injury; only potentiality.” Id. at *7-8. (quotation marks
omitted).
Stokeling did not overrule or call into doubt Melgar-Cabrera; rather, it supports it.
-4- See Stokeling, 2019 WL 189343, at *9 (concluding “physical force” in the elements
clause “encompasses the degree of force necessary to commit common-law robbery”
(emphasis added)); Melgar-Cabrera, 892 F.3d at 1064 (defining Hobbs Act robbery as
“common-law robbery that affects interstate commerce” (emphasis added)). Nor have we
revisited Melgar-Cabrera in an en banc decision. As a result, it remains the law of this
Circuit. See United States v. Springer, 875 F.3d 968, 975 (10th Cir. 2017) (under the
“principles of horizontal stare decisis,” we are bound by published opinions of prior
panels “absent en banc reconsideration or a superseding contrary decision by the
Supreme Court” (quotation marks omitted)).
Because the judge’s decision that Hobbs Act robbery is categorically a “crime of
violence” under § 924(c)(3)’s elements clause is not reasonably debatable, we DENY a
COA and DISMISS this putative appeal.
Entered by the Court:
Terrence L. O’Brien United States Circuit Judge
-5-