Appellate Case: 20-5086 Document: 010110707570 FILED Date Filed: 07/08/2022 Page: 1 United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS July 8, 2022 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5086 (D.C. Nos. 4:16-CV-00649-JHP-FHM DEANDRE ANTONIO HOPKINS, & 4:12-CR-00050-GKF-3) (N.D. Okla.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
Proceeding pro se,1 Deandre Hopkins requests a certificate of appealability
(“COA”) primarily to appeal from the district court’s denial of his authorized,
second or successive motion filed pursuant to 28 U.S.C. § 2255. Exercising
jurisdiction under 28 U.S.C. § 1291, we deny Mr. Hopkins a COA 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* This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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(a) and 10th Cir. R. 32.1(A). 1 Because Mr. Hopkins litigates this matter pro se, we construe his filings liberally but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir. 2013) (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)). Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 2
I
A
In 2012, Mr. Hopkins was charged in a superseding indictment in federal
court with the following charges, among others, relating to a string of robberies in
the Tulsa, Oklahoma, area: Conspiracy to Commit Hobbs Act Robbery, in
violation of 18 U.S.C. § 1951 (“Count One”); Hobbs Act Robbery, in violation of
18 U.S.C. § 1951 (“Counts Five and Seven”); Using, Carrying, and Brandishing a
Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (“Count Six”); and Using, Carrying, Brandishing and
Discharging a Firearm During and in Relation to a Crime of Violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(iii) (“Count Eight”).2 See R., Vol. I, at 42–48, 52–55
(Superseding Indictment, filed Jul. 11, 2012).
Both the superseding indictment and the jury instructions made clear that the
predicate “crime[s] of violence” for Counts Six and Eight were, respectively,
Counts Five and Seven, the Hobbs Act robberies.3 See R., Vol. I, at 53, 55; id. at
2 “The term ‘robbery’ means 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, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.” 18 U.S.C. § 1951(b)(1). 3 Notably, Counts Five and Seven charge Mr. Hopkins with the substantive offense of Hobbs Act robbery, and not with attempted robbery or conspiracy to commit robbery (as in Count One). See R., Vol. I, at 52, 54
2 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 3
323 (Jury Instrs., filed Feb. 15, 2013).
On February 15, 2013, a jury convicted Mr. Hopkins on the five counts
noted above. On May 28, 2013, the district court sentenced Mr. Hopkins to a total
of 544 months’ imprisonment: 160 months for each of Counts One, Five, and
Seven, all to run concurrently; 84 months for Count Six, to run consecutively; and
300 months for Count Eight, to run consecutively. Mr. Hopkins appealed from the
district court’s judgment imposing these convictions, but a panel of our Court
affirmed the district court’s judgment. See United States v. Hopkins (“Hopkins I”),
608 F. App’x 637 (10th Cir. 2015) (unpublished).
B
In 2016, Mr. Hopkins, appearing pro se, filed his first § 2255 motion,
raising twenty-four separate claims. See United States v. Hopkins (“Hopkins II”),
797 F. App’x 401, 402 n.1 (10th Cir. 2019) (unpublished). Among his numerous
claims, Mr. Hopkins argued that his appellate counsel was ineffective for failing to
challenge his § 924(c) convictions in light of Rosemond v. United States, 572 U.S.
65 (2014), which had been decided during the pendency of Hopkins I.4
(alleging, in Counts Five and Seven, that Mr. Hopkins “knowingly, willfully and intentionally obstruct[ed], delay[ed] and affect[ed] interstate commerce . . . by robbery”). 4 As the Hopkins II panel explained, the Supreme Court in Rosemond “held that a defendant cannot be convicted of aiding and abetting a § 924(c) violation unless he has advance knowledge that one of his confederates will carry a firearm and that a trial court errs by giving an aiding-and-abetting jury
3 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 4
Effectively, Mr. Hopkins argued that his § 924(c) convictions were premised on
aiding-and-abetting liability; the trial court had given an erroneous instruction in
light of Rosemond; and appellate counsel’s failure to raise the Rosemond issue
amounted to ineffective assistance.
On July 27, 2017, the district court denied Mr. Hopkins’s motion and also
denied him a COA. In doing so, the district court found unpersuasive Mr.
Hopkins’s Rosemond argument. While the district court agreed with Mr. Hopkins
that he “could not be convicted for aiding and abetting a § 924(c) violation under
Rosemond,” it found any instructional error harmless because Mr. Hopkins “was
properly convicted of aiding and abetting a § 924(c) violation under Pinkerton v.
United States.”5 R., Vol. VI, at 108 (Dist. Ct. Order, entered Jul. 27, 2017). More
specifically, in light of the facts of Mr. Hopkins’s case, the district court
concluded it was “entirely foreseeable that one or more of [Mr. Hopkins’s]
accomplices would bring a firearm to . . . [a] robbery and brandish it in
furtherance thereof.” Id. at 109. Thus, the court rejected Mr. Hopkins’s argument
instruction that fails to account for the advance-knowledge requirement.” Hopkins II, F. App’x at 402 (citing Rosemond, 572 U.S. at 77–78, 81). 5 “The Pinkerton doctrine holds each member of a conspiracy legally responsible for the reasonably foreseeable crimes of fellow conspirators committed in furtherance of the conspiracy.” United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009) (citing Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States v. Hernandez, 509 F.3d 1290, 1295 (10th Cir. 2007); United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992)).
4 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 5
that his appellate counsel was ineffective for failing to raise a Rosemond claim.
C
Mr. Hopkins took no action in relation to the district court’s denial of his
§ 2255 motion until “[n]early two years later.” Hopkins II, 797 F. App’x at 402.
In May 2019, Mr. Hopkins filed a motion styled, “Motion to Reopen, and/or Relief
from Judgement [sic], Pursuant to Fed. R. Civ. P. 60(b),” broadly challenging the
district court’s original denial of his § 2255 motion and contending that the court
had applied incorrect precedent and otherwise erred in denying his ineffective
assistance of appellate counsel claim based on Rosemond. R., Vol. VI, at 110–15
(Mot. Pursuant to Rule 60(b), filed May 28, 2019). By minute order, the district
court summarily denied Mr. Hopkins’s Rule 60(b) motion and subsequently denied
his request for a COA. See id. at 134 (Minute Order, entered June 4, 2019); see
also Hopkins II, 797 F. App’x at 403.
Mr. Hopkins appealed, and a panel of our Court concluded that his Rule
60(b) motion should have been dismissed as an unauthorized second or successive
§ 2255 motion. See Hopkins II, 797 F. App’x at 403. Particularly, the panel
reasoned that Mr. Hopkins’s Rule 60(b) motion “amount[ed] to a second or
successive § 2255 motion” because, “at bottom, [it was] a merits-based attack on
the district court’s rejection of the Rosemond claim he raised in his § 2255
motion.” Id. And because this Rule 60(b) motion amounted to an unauthorized,
second or successive § 2255 motion, “the district court lacked jurisdiction to
5 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 6
consider it and should have . . . dismissed it.” Id. at 404.
Thus, the panel denied Mr. Hopkins a COA, dismissed his appeal, and
instructed the district court to vacate its denial order and either “dismiss the
motion for lack of jurisdiction or . . . transfer it to this [C]ourt.” Id. Following
the panel’s mandate, the district court vacated its previous denial of the Rule 60(b)
motion and dismissed it for lack of jurisdiction. See Order, United States v. Hill,
No. 12-CR-00050-GKF (N.D. Okla. Apr. 7, 2020), Doc. No. 846 (vacating district
court’s previous denial of Mr. Hopkins’s Rule 60(b) motion and dismissing it for
lack of jurisdiction); see also R., Vol. VII, at 31 (district court docket sheet
showing dismissal of Mr. Hopkins’s Rule 60(b) motion).6 Mr. Hopkins did not,
however, initiate further action to pursue his Rosemond-based claim.
D
On April 24, 2020, Mr. Hopkins sought permission from this Court to file a
successive § 2255 motion. A panel granted Mr. Hopkins permission to file such a
motion to challenge his § 924(c) convictions and sentences on the basis of the
Supreme Court’s decision in United States v. Davis, --- U.S. ----, 139 S. Ct. 2319
(2019). See Order at 2, In re: Deandre Antonio Hopkins, No. 20-5044 (10th Cir.
6 We take judicial notice of certain relevant district court documents that were not included in the record compiled for this appeal. Cf. Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . . were not included in the record on appeal, but they are accessible from the district court docket. We may therefore take judicial notice of the filings.”).
6 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 7
May 27, 2020).
Davis “announced a new rule of constitutional law that the [Supreme] Court
made retroactive to cases on collateral review . . . .” Id. § 924(c) proscribes using
or carrying a firearm “during and in relation to any crime of violence or drug
trafficking crime” or possessing a firearm “in furtherance of any such crime.”
18 U.S.C. § 924(c)(1)(A). The statute defines “crime of violence” as “an offense
that is a felony and . . . (A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of another [i.e., the force or
elements clause], 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 residual clause].” Id. § 924(c)(3)(A)–(B). Davis
invalidated § 924(c)(3)(B)—the residual clause—concluding that it was
unconstitutionally vague, which left § 924(c)(3)(A), the force or elements clause,
as the only applicable definition of “crime of violence” under the statute. See
Davis, 139 S. Ct. at 2336.
Using the Supreme Court’s Davis decision, Mr. Hopkins subsequently filed
his second or successive § 2255 motion, arguing that Davis’s invalidation of
§ 924(c)’s residual clause rendered his own § 924(c) convictions unconstitutional.
However, on July 20, 2020, the district court dismissed or, in the alternative,
denied Mr. Hopkins’s second or successive § 2255 motion and did not issue a
COA. See R., Vol. VII, at 33–38 (Dist. Ct. Order, entered Jul. 20, 2020). In
7 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 8
pertinent part, the court concluded that, because “courts have consistently held that
a Hobbs Act robbery is a crime of violence under [§] 924(c)’s elements clause,”
Mr. Hopkins “fail[ed] to show by a preponderance of the evidence that his
conviction rests on § 924(c)’s unconstitutional residual clause.” Id. at 37.
Accordingly, the court dismissed Mr. Hopkins’s motion because it could not “rely
on the Supreme Court’s decision in Davis” and, therefore, did not “satisfy the
requirements of 28 U.S.C. § 2255(h).” Id. Alternatively, the court denied the
motion on the merits “for the same reasons because he fails to show it is more
likely than not that his [§] 924(c) conviction rests on the unconstitutional residual
clause.” Id.
E
Shortly thereafter, on August 3, 2020, Mr. Hopkins filed in the district court
a motion to reconsider its decision pursuant to Federal Rule of Appellate
Procedure 4(c)(1) and Federal Rule of Civil Procedure 60(b)(6). Specifically, Mr.
Hopkins asked the court to reopen and re-enter its July 27, 2017, judgment, which
rendered final the rejection of his first § 2255 motion, so that he could file a
timely notice of appeal challenging that ruling.7 See id. at 40–49 (Pet.’s Mot.
Pursuant to Fed. R. App. P. 4(c)(1) & Fed. R. Civ. P. 60(b)(6), filed Aug. 3,
2020). By way of this motion, Mr. Hopkins effectively tried to “reset[]” the time
7 This motion was dated July 21, 2020, and was entered in the district court’s docket on August 3, 2020.
8 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 9
period for appealing from the district court’s denial of his first § 2255 motion,
arguing he had timely placed his notice of appeal in the prison mail system in
2017, but that the notice and envelope were returned to him, undelivered, in June
2020, three years later. Id. at 40; see also id. at 40–42. Mr. Hopkins attached a
sworn declaration to his motion and contended that he had established good cause
to excuse this delay and reopen the district court’s July 2017 order and judgment
denying his first § 2255 motion. See id. at 42, 47.
On August 11, 2020, the district court denied Mr. Hopkins’s motion. See id.
at 50–54 (Dist. Ct. Order, dated Aug. 11, 2020). The court explained that, under
the prison mailbox rule, an inmate can establish timely filing of a notice of appeal
“by either (1) alleging and proving that he . . . made timely use of the prison’s
legal mail system . . ., or (2) . . . by timely use of the prison’s regular mail system
in combination with a notarized statement or a declaration under penalty of perjury
of the date on which the documents were given to prison authorities and attesting
that postage was prepaid.” Id. at 53 (quoting Prince v. Philpot, 420 F.3d 1158,
1166 (10th Cir. 2005)). The district court found that Mr. Hopkins failed to make
either of these showings and denied the motion.
***
Mr. Hopkins submitted his timely notice of appeal, which was filed on
September 8, 2020. Id. at 55 (Pet.’s Notice of Appeal, filed Sept. 8, 2020). He
requests a COA to proceed further. In his opening brief, Mr. Hopkins centers his
9 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 10
arguments on the district court’s disposition of his authorized, second or
successive § 2255 motion. See Aplt.’s Opening Br. at 3–10. Yet construed
liberally, Mr. Hopkins’s filings also conceivably seek a COA to challenge the
district court’s denial of his August 3, 2020, Rule 60(b)(6) motion, in which Mr.
Hopkins invoked the prison mailbox rule with the objective of getting the court to
reenter its judgment so that he could appeal from the court’s denial of his first
§ 2255 motion. However, in his opening brief, Mr. Hopkins reargues only the
merits of his first § 2255 motion, which recall was a Rosemond-based ineffective
assistance of appellate counsel claim. See id. at 10–14.
II
Mr. Hopkins mailed a notice of appeal that was filed on September 8, 2020.
Id. at 55. He 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.”
(citing Miller-El v. Cockrell, 537 U.S. 322, 323 (2003))). We may grant a COA
only if Mr. Hopkins “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In its seminal decision, Slack v.
McDaniel, the Supreme Court shed light on the showing required to secure a COA:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes
10 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 11
somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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.
529 U.S. 473, 484 (2000).
More specifically, 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)
(quoting Miller-El, 537 U.S. at 327). In fact, if a court of appeals “first decid[es]
the merits of an appeal, and then justif[ies] its denial of a COA based on its
adjudication of the actual merits, it is in essence deciding an appeal without
jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37). Notably, in the Rule
60(b) context, a “federal habeas court’s ruling on procedural issues . . . should be
treated as [based on] a true 60(b) motion,” and thus “a COA is required to appeal
from the denial” of relief. Spitznas v. Boone, 464 F.3d 1213, 1216, 1218 (10th
Cir. 2006).
11 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 12
III
Mr. Hopkins’s request for a COA centers on the district court’s denial of his
authorized, successive § 2255 motion, purportedly based on Davis. When
construed liberally (in truth, generously), see, e.g., Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), Mr. Hopkins’s notice of appeal conceivably also
could be read as seeking a COA to challenge the district court’s denial of his
August 3, 2020, Rule 60(b)(6) motion—i.e., the order which dealt with Mr.
Hopkins’s claim that he intended to timely appeal his first § 2255 motion in 2017
but the notice of appeal was lost in the mail and returned to him only in June
2020. In any event, we deny Mr. Hopkins a COA and dismiss this matter.
Mr. Hopkins seeks a COA relating to the district court’s dismissal of his
authorized, successive § 2255 motion. As narrated above, 18 U.S.C. § 924(c)
proscribes using or carrying a firearm “during and in relation to any crime of
violence or drug trafficking crime” or possessing a firearm “in furtherance of any
such crime.” 18 U.S.C. § 924(c)(1)(A). After the Supreme Court issued its
decision in Davis, the statutory definition of “crime of violence” was effectively
limited to the force or elements clause of § 924(c)(3)—that is, “an offense that is a
felony and . . . (A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” Id. § 924(c)(3)(A); see
12 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 13
Mr. Hopkins contends that, in light of Davis, his § 924(c) convictions
cannot stand because Hobbs Act robbery is not a “crime of violence.” See Aplt.’s
Opening Br. at 3–10. As Mr. Hopkins reasons, with Hobbs Act robbery failing to
qualify under the elements clause, and with Davis having rendered the statute’s
residual clause constitutionally infirm, his § 924(c) convictions lack a predicate
“crime of violence” and, therefore, those convictions, and their attendant
sentences, must be vacated. See id. at 3–7 (arguing that Hobbs Act robbery is not
categorically a crime of violence under the elements clause); id. at 7–10
(explaining that the residual clause is unconstitutional).
Unfortunately for Mr. Hopkins, his argument stands on an incorrect legal
premise: that is to say, he relies on the premise that Hobbs Act robbery is not a
crime of violence under the elements clause, § 924(c)(3)(A). However, we have
held in precedential authority to the contrary—specifically, that Hobbs Act robbery
is, categorically, a crime of violence under the elements clause. In United States
v. Melgar-Cabrera, we were faced with this precise question—i.e., whether Hobbs
Act robbery is a crime of violence under § 924(c)’s elements clause—and we
resolved it in no uncertain terms, by employing the categorical approach to
“conclu[de] that Hobbs Act robbery is a crime of violence under the elements
clause of § 924(c)(3).” 892 F.3d 1053, 1060 n.4 (10th Cir. 2018); see United
States v. Jefferson (“Jefferson I”), 911 F.3d 1290, 1296 (10th Cir. 2018)
(observing that Melgar-Cabrera “decided Hobbs Act robbery is categorically a
13 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 14
‘crime of violence’ under § 924(c)(3)(A)’s elements clause because the clause
requires the use of violent force, i.e., force capable of causing physical pain or
injury to another person, and the force element in Hobbs Act robbery can be
satisfied only by violent force”), cert. granted, judgment vacated in part on other
grounds, 140 S. Ct. 861 (2020); United States v. Jefferson (“Jefferson II”), 989
F.3d 1173, 1175 n.1 (10th Cir. 2021) (discussing “our holding in” Melgar-Cabrera
“that Hobbs Act robbery is categorically a crime of violence under 18 U.S.C.
§ 924(c)(3)(A)”).
Thus, in practical terms, Davis’s admittedly significant impact on § 924(c)’s
definition of “crime of violence”—its invalidation of the residual clause—is
nevertheless largely irrelevant to Mr. Hopkins’s circumstances in light of the
well-established principle that the predicate crime underlying his § 924(c)
convictions, i.e., Hobbs Act robbery, qualifies as a “crime of violence” under the
alternate, force or elements clause, § 924(c)(3)(A).8
8 Additionally, we rejected several arguments in Melgar-Cabrera that are substantially similar to some arguments made by Mr. Hopkins. The defendant in Melgar-Cabrera made two arguments “for why Hobbs Act robbery fail[ed] to constitute a crime of violence under § 924(c)(3)(A)”: (1) that the “force” required to commit Hobbs Act robbery need not be “violent force,” whereas the “physical force” required for § 924(c)(3)(A) must be “violent force,” and (2) that “unlawfully taking a victim’s property against his or her will ‘by means of . . . fear of injury’ does not require the attempted or threatened use of physical force.” Melgar-Cabrera, 892 F.3d at 1061 (omission in original). As to the first argument, we “h[e]ld that physical force as used in § 924(c)(3)(A) ‘means violent force—that is, force capable of causing physical pain or injury to another person.’” Id. at 1064 (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). And
14 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 15
Subsequent caselaw published after Melgar-Cabrera has only further
undercut Mr. Hopkins’s position.9 Cf. United States v. Walker, 990 F.3d 316, 325,
325 n.11 (3d Cir. 2021) (noting that “[e]very court of appeals to consider the issue
has held that Hobbs Act robbery is . . . a crime of violence for purposes of [the
force or elements clause of] § 924(c)”; agreeing with this conclusion; and citing, in
addition to Melgar-Cabrera, published caselaw from the First, Second, Fourth,
Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits); see also United States
v. Nguyen, 845 F. App’x 791, 792 (10th Cir. 2021) (unpublished) (“Mr. Nguyen
argues that Hobbs Act robbery does not constitute a crime of violence under 18
that the “force element” in the Hobbs Act robbery statute “can only be satisfied by violent force.” Id. at 1065 (emphasis added). As for the second argument, we determined that our decision in United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), “foreclosed” any argument that “committing Hobbs Act robbery by putting someone in fear of injury does not necessarily constitute the threatened use of physical force because it can be done through indirect force.” Melgar-Cabrera, 892 F.3d at 1066. Our prior rejection of this second argument is particularly important here, where Mr. Hopkins makes an analogous—and analogously unavailing—argument; he avers Hobbs Act robbery does not categorically qualify as a crime of violence because it can be committed “by causing fear of future injury to property, which does not require ‘physical force’” within § 924(c)’s meaning. Aplt.’s Opening Br. at 3–4. 9 In June 2022, the Supreme Court held in United States v. Taylor, --- U.S. ----, 142 S. Ct. 2015, 2022 WL 2203334 (2022), that attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c)(3)(A). Because, as we previous noted, see supra note 3, Mr. Hopkins was not charged with attempted Hobbs Act robbery in Counts Five and Seven, Taylor’s holding is irrelevant to Mr. Hopkins’s request for a COA. Cf. Taylor, 2022 WL 2203334, at *4 (“Whatever one might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy the elements clause.”).
15 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 16
U.S.C. § 924(c)(3). He bases this argument on the Supreme Court’s recent opinion
in United States v. Davis, . . . . In our view, however, any reasonable jurist would
reject this argument because Hobbs Act robbery clearly satisfies the elements
clause in § 924(c)(3)(A).”).
For example, in Jefferson I, the defendant “appear[ed] to suggest the taking
of property via ‘fear of injury’ d[id] not involve physical force and therefore
Hobbs Act robbery does not contain a force element”—and, more specifically, that
“interpret[ing] the phrase ‘fear of injury’ as requiring the ‘threatened use of
physical force’ would render the phrase impermissibly superfluous because the
statute already prohibits taking property from the victim against his will via
‘threatened force.’” Jefferson I, 911 F.3d at 1298. We found this position “too
ambitious,” and incompatible with Melgar-Cabrera. Id. Unimpressed with the
defendant’s statutory interpretation arguments, we observed that, in the case of the
Hobbs Act, the statute “prohibits . . . robbery by ‘threatened force,’ which
overlaps with robbery by ‘fear of injury,’” and it also “prohibits robbery by ‘actual
. . . force,’ which overlaps with robbery by ‘violence.’” Id. at 1298–99 (second
omission in original). Thus, “[t]aken in context, one thing is clear”: by way of the
Hobbs Act, “Congress sought to prohibit the taking of property from a victim
against his will by actual or threatened use of physical force”—and “[t]hat satisfies
§ 924(c)(3)(A).” Id.
Mr. Hopkins cites United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019),
16 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 17
to further advocate for his position. Aplt.’s Opening Br. at 6–7. But this line of
attack also fails. We already have stated that Bowen does not call into question
Melgar-Cabrera’s holding that Hobbs Act robbery is categorically a crime of
violence. See Jefferson II, 989 F.3d at 1175 n.1. In Jefferson II, the defendant
“argue[d] . . . Bowen . . . [was] an intervening decision that overruled our holding
in . . . Melgar-Cabrera . . . that Hobbs Act robbery is categorically a crime of
violence under 18 U.S.C. § 924(c)(3)(A).” Id. Our Court noted that, assuming
that the issue was within the scope of the remand at issue, “Bowen had no such
effect.” Id. We explained that, “[i]n Bowen, we held the federal
witness-retaliation statute . . . does not qualify as a crime of violence under
§ 924(c)(3)(A) because it includes witness retaliation through non-violent property
damage,” such as “spray painting a car.” Id. (emphasis omitted). “But the same is
not true of Hobbs Act robbery,” which “necessarily entails the use or threatened
use of violent force against a person or property.” Id. (emphasis omitted). In
other words, “[w]ithout violent force, there is no Hobbs Act robbery and no ‘crime
of violence.’” Id.; see also Nguyen, 845 F. App’x at 792–93 (applying Melgar-
Cabrera to hold that Hobbs Act robbery could “only be satisfied by violent force”
and is a crime of violence under § 924(c)(3)(A) (quoting United States v. Nguyen,
744 F. App’x 550, 552 (10th Cir. 2018) (unpublished))). Accordingly, Bowen did
not disturb Melgar-Cabrera, and Mr. Hopkins’s reliance on the case is unavailing.
Thus, in light of Melgar-Cabrera and subsequent, relevant caselaw, Mr.
17 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 18
Hopkins has not—and cannot—show that reasonable jurists would debate or find
incorrect the district court’s dismissal of his second or successive § 2255 motion.
Accordingly, a COA is not warranted as to this issue.
Construing Mr. Hopkins’s notice of appeal liberally, it is conceivable that
Mr. Hopkins also seeks a COA with respect to the district court’s denial of his
August 3, 2020, Rule 60(b)(6) motion. However, insofar as he does seek a COA
on this ground, Mr. Hopkins has completely failed to show that reasonable jurists
could debate the correctness of the district court’s decision. Accordingly, we deny
any such COA request.
Specifically, along with his notice of appeal, Mr. Hopkins attached a
document styled “Appellant’s Show Cause Motion Pursuant to the ‘Prison
Mailbox’ Rule And Fed. R. App. P. 4(c)(1).” R., Vol. VII, at 56–58 (Ex. 1 to
Notice of Appeal, filed Sept. 28, 2020). He also attached a supporting declaration
pursuant to 28 U.S.C. § 1746 and the purported envelope in which the original
notice of appeal was mailed back in 2017. Id. at 59–62 (Pet.’s Decl., dated Jul.
21, 2020). Both of these documents were provided to the district court alongside
his August 3, 2020, Rule 60(b)(6) motion. See id. at 40–49. Effectively, Mr.
Hopkins largely copied and pasted his Rule 60(b)(6) motion, restyled it as a “Show
Cause” motion, and attached it, along with the declaration he previously sent to
the district court, to the notice of appeal that he mailed.
18 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 19
However, critically, Mr. Hopkins offers no discussion of the district court’s
denial of his Rule 60(b)(6) motion in his opening brief. See Aplt.’s Opening Br. at
10–14. Indeed, Mr. Hopkins in his opening brief utters not one word about the
district court’s denial of this motion. Accordingly, he has waived any arguments
challenging this denial. It is well-established that “[i]ssues not raised in [an
appellant’s] opening brief are deemed abandoned or waived,” and “[t]his
briefing-waiver rule applies equally to arguments that are inadequately presented
in an opening brief.” Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020)
(first quoting Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004); and then quoting United States v. Walker, 918 F.3d 1134, 1151 (10th Cir.
2019)). We likewise hold pro se litigants to this standard. See United States v.
Banks, 884 F.3d 998, 1024 (10th Cir. 2018) (“We aren’t required to fill in the
blanks of a litigant’s inadequate brief.”); Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.”).
In pursuing a COA, Mr. Hopkins would need to demonstrate how or why the
district court erred in its denial of the Rule 60(b)(6) motion. That he has not done.
Cf. Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The
first task of an appellant is to explain to us why the district court’s decision was
wrong. Recitation of a tale of apparent injustice may assist in that task, but it
19 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 20
cannot substitute for legal argument. . . . [Appellant] utterly fails . . . to explain
what was wrong with the reasoning that the district court relied on in reaching its
decision. As a result, we . . . affirm[] the judgment below.”); Hernandez v.
Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (“Because the appellant comes to
the court of appeals as the challenger, he bears the burden of demonstrating the
alleged error and the precise relief sought. A court of appeals is not required to
manufacture an appellant’s ‘argument on appeal when it has failed in its burden to
draw our attention to the error below.’” (citations omitted) (quoting Nat’l
Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989))).
Given Mr. Hopkins’s total failure to discuss the district court’s denial of his Rule
60(b)(6) motion in his opening brief, insofar as Mr. Hopkins seeks a COA to
challenge this denial, we deny it.
Notably, instead of addressing the court’s procedural denial of his 60(b)(6)
motion, Mr. Hopkins focuses in his opening brief on re-litigating the merits of his
claim of ineffective assistance of appellate counsel, based on counsel’s failure, in
light of Rosemond, to challenge his convictions—a theory Mr. Hopkins brought in
his first § 2255 motion. See Aplt.’s Opening Br. at 10–14 (arguing in support of
the applicability of Rosemond to overturn his convictions). To the extent that this
line of argument was intended to bolster Mr. Hopkins’s conceivable COA request
regarding the court’s denial of his Rule 60(b)(6) motion, it does not avail Mr.
Hopkins, in light of his complete failure to challenge the procedural ground for the
20 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 21
district court’s denial of that motion. But it is perhaps more likely that Mr.
Hopkins tacitly seeks to resurrect the Rosemond merits attack of his first § 2255
motion. If so, we decline to consider it. As we made clear in Hopkins II, such an
attack would effectively constitute a second or successive § 2255 motion for which
Mr. Hopkins has not properly sought authority from this Court. See Hopkins II,
797 F. App’x at 403. Mr. Hopkins had the opportunity to seek such authority after
the district court dismissed his May 2019 Rule 60(b) motion concerning his
Rosemond claim, and he took no further action. We decline to construe this
argument in his opening brief as a motion seeking such authority now. Cf. United
States v. Nelson, 465 F.3 1145, 1149 (10th Cir. 006) (“treat[ing] [prisoner’s] notice
of appeal and appellate brief as an implied application to this court for leave to
file a second § 2255 motion”).
In sum, we recognize that it is conceivable that Mr. Hopkins also seeks a
COA to challenge the district court’s denial of his Rule 60(b)(6) motion, invoking
the prison mailbox rule. If so, Mr. Hopkins cannot prevail because he has waived
any argument challenging the correctness of the court’s denial by omitting it from
his opening brief. Therefore, it ineluctably follows that Mr. Hopkins cannot
demonstrate that reasonable jurists could debate the correctness of the court’s Rule
60(b)(6) ruling, nor show that a COA is warranted.
21 Appellate Case: 20-5086 Document: 010110707570 Date Filed: 07/08/2022 Page: 22
IV
For the foregoing reasons, we DENY Mr. Hopkins’s request for a COA and
DISMISS this matter.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge