Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2043 (D.C. Nos. 1:16-CV-00714-KWR-JHR & HERBERT ISAAC PERKINS, 1:07-CR-01010-KWR-1) (D. N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, MORITZ, and EID, Circuit Judges. _________________________________
Herbert Isaac Perkins seeks a certificate of appealability (COA) to appeal from the
district court’s dismissal of his successive 28 U.S.C. § 2255 motion. We deny a COA.
I. Background
A jury convicted Mr. Perkins of four counts for his role in a convenience-store
robbery: one count of interference with commerce by threats or violence, in violation of
18 U.S.C. § 1951 (also known as Hobbs Act robbery); two counts of discharging a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c);
and one count of being a felon in possession of ammunition, in violation of 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 2
§ 922(g)(1). The district court sentenced Mr. Perkins to life in prison on the first count
(Hobbs Act robbery), after enhancing his sentence under the three-strikes provision in
18 U.S.C. § 3559(c)(1). That provision mandates the imposition of a life sentence when
a person is convicted in federal court of a serious violent felony and the person has two or
more prior convictions for serious violent felonies. See § 3559(c)(1)(A)(i). The court
sentenced Mr. Perkins to a 10-year sentence on the first § 924(c) count and a 25-year
sentence on the second § 924(c) count. And it sentenced him to a 780-month sentence
for the § 922(g)(1) count. The § 922(g)(1) conviction was subject to the
enhanced-penalty provisions of the Armed Career Criminal Act (ACCA) in 18 U.S.C.
§ 924(e), and Mr. Perkins was also found to a be a career offender under § 4B1.1 of the
Sentencing Guidelines.
Mr. Perkins appealed, and we affirmed the judgment. United States v. Perkins,
342 F. App’x 403, 412 (10th Cir. 2009). He then filed his first § 2255 motion, which the
district court denied.
After the Supreme Court issued its decision in Johnson v. United States, 576 U.S.
591 (2015), Mr. Perkins filed another § 2255 motion, seeking relief based on Johnson.
The district court determined the motion was an unauthorized second or successive
§ 2255 motion and transferred it to this court. We subsequently directed Mr. Perkins to
supplement his motion for authorization to address the implications of the decisions in
United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Bowen, 936 F.3d
1091 (10th Cir. 2019).
2 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 3
We then granted authorization for Mr. Perkins to file a successive § 2255 motion
to challenge his § 924(c) convictions and sentences and the enhancement of his sentence
under the ACCA. He subsequently filed a successive § 2255 motion seeking to challenge
his § 924(c) convictions and sentences and the ACCA sentencing enhancement, as well
as his conviction for Hobbs Act robbery.
He argued his Hobbs Act robbery and § 924(c) convictions were invalid under
Davis because Hobbs Act robbery qualified as a predicate crime of violence only as that
term is defined in § 924(c)(3)’s residual clause. In Davis, the Supreme Court held that
the residual clause in § 924(c)(3)(B) is unconstitutionally vague. 139 S. Ct. at 2336. He
also argued his sentence for his § 922(g)(1) conviction was invalid because he did not
have three previous convictions that met the definition of a violent felony without the use
of the residual clause in § 924(e). In Johnson, the Supreme Court held that the residual
clause in § 924(e)(2)(B) is unconstitutionally vague. 576 U.S. at 606.
The magistrate judge concluded: (1) the district court lacked jurisdiction to
address the merits of the challenge to the Hobbs Act robbery conviction because the
Tenth Circuit had not granted authorization to challenge that conviction; (2) the holding
in Davis does not extend to the elements clause in § 924(c)(3)(A), and it is settled law in
the Tenth Circuit that Hobbs Act robbery is categorically a crime of violence under the
elements clause; and (3) Mr. Perkins has three or more prior convictions that meet the
definition of violent felony without the use of the residual clause in § 924(e). The
magistrate judge therefore recommended dismissing Mr. Perkins’s § 2255 motion with
prejudice.
3 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 4
Mr. Perkins filed objections to the magistrate judge’s proposed findings and
recommended dispositions. The district court overruled the objections, adopted the
magistrate judge’s proposed findings and recommended dispositions, and dismissed the
§ 2255 motion with prejudice. Mr. Perkins now seeks a COA to appeal from that
dismissal.
II. Discussion
A. Hobbs Act robbery claim
To obtain a COA of the district court’s procedural ruling that it lacked jurisdiction
to address Mr. Perkins’s challenge to his Hobbs Act robbery conviction, he must show
both “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. 473, 484 (2000). We need not address the constitutional question if
we conclude that reasonable jurists would not debate the district court’s resolution of the
procedural one. See id. at 485.
Mr. Perkins argues the district court erred in ruling that this court “did not
authorize the review of the Hobbs Act robbery conviction,” R., vol. 1 at 207. But he
conceded in his successive § 2255 motion that our authorization order “did not address
directly [his] challenge to the conviction and sentence on Count 1 [(Hobbs Act
robbery)].” Id. at 148.
We have explained that “under the plain language of §§ 2255(h) and 2244(b)(3),
prisoners must first obtain circuit-court authorization before filing a second or successive
4 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 5
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2043 (D.C. Nos. 1:16-CV-00714-KWR-JHR & HERBERT ISAAC PERKINS, 1:07-CR-01010-KWR-1) (D. N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, MORITZ, and EID, Circuit Judges. _________________________________
Herbert Isaac Perkins seeks a certificate of appealability (COA) to appeal from the
district court’s dismissal of his successive 28 U.S.C. § 2255 motion. We deny a COA.
I. Background
A jury convicted Mr. Perkins of four counts for his role in a convenience-store
robbery: one count of interference with commerce by threats or violence, in violation of
18 U.S.C. § 1951 (also known as Hobbs Act robbery); two counts of discharging a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c);
and one count of being a felon in possession of ammunition, in violation of 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. Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 2
§ 922(g)(1). The district court sentenced Mr. Perkins to life in prison on the first count
(Hobbs Act robbery), after enhancing his sentence under the three-strikes provision in
18 U.S.C. § 3559(c)(1). That provision mandates the imposition of a life sentence when
a person is convicted in federal court of a serious violent felony and the person has two or
more prior convictions for serious violent felonies. See § 3559(c)(1)(A)(i). The court
sentenced Mr. Perkins to a 10-year sentence on the first § 924(c) count and a 25-year
sentence on the second § 924(c) count. And it sentenced him to a 780-month sentence
for the § 922(g)(1) count. The § 922(g)(1) conviction was subject to the
enhanced-penalty provisions of the Armed Career Criminal Act (ACCA) in 18 U.S.C.
§ 924(e), and Mr. Perkins was also found to a be a career offender under § 4B1.1 of the
Sentencing Guidelines.
Mr. Perkins appealed, and we affirmed the judgment. United States v. Perkins,
342 F. App’x 403, 412 (10th Cir. 2009). He then filed his first § 2255 motion, which the
district court denied.
After the Supreme Court issued its decision in Johnson v. United States, 576 U.S.
591 (2015), Mr. Perkins filed another § 2255 motion, seeking relief based on Johnson.
The district court determined the motion was an unauthorized second or successive
§ 2255 motion and transferred it to this court. We subsequently directed Mr. Perkins to
supplement his motion for authorization to address the implications of the decisions in
United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Bowen, 936 F.3d
1091 (10th Cir. 2019).
2 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 3
We then granted authorization for Mr. Perkins to file a successive § 2255 motion
to challenge his § 924(c) convictions and sentences and the enhancement of his sentence
under the ACCA. He subsequently filed a successive § 2255 motion seeking to challenge
his § 924(c) convictions and sentences and the ACCA sentencing enhancement, as well
as his conviction for Hobbs Act robbery.
He argued his Hobbs Act robbery and § 924(c) convictions were invalid under
Davis because Hobbs Act robbery qualified as a predicate crime of violence only as that
term is defined in § 924(c)(3)’s residual clause. In Davis, the Supreme Court held that
the residual clause in § 924(c)(3)(B) is unconstitutionally vague. 139 S. Ct. at 2336. He
also argued his sentence for his § 922(g)(1) conviction was invalid because he did not
have three previous convictions that met the definition of a violent felony without the use
of the residual clause in § 924(e). In Johnson, the Supreme Court held that the residual
clause in § 924(e)(2)(B) is unconstitutionally vague. 576 U.S. at 606.
The magistrate judge concluded: (1) the district court lacked jurisdiction to
address the merits of the challenge to the Hobbs Act robbery conviction because the
Tenth Circuit had not granted authorization to challenge that conviction; (2) the holding
in Davis does not extend to the elements clause in § 924(c)(3)(A), and it is settled law in
the Tenth Circuit that Hobbs Act robbery is categorically a crime of violence under the
elements clause; and (3) Mr. Perkins has three or more prior convictions that meet the
definition of violent felony without the use of the residual clause in § 924(e). The
magistrate judge therefore recommended dismissing Mr. Perkins’s § 2255 motion with
prejudice.
3 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 4
Mr. Perkins filed objections to the magistrate judge’s proposed findings and
recommended dispositions. The district court overruled the objections, adopted the
magistrate judge’s proposed findings and recommended dispositions, and dismissed the
§ 2255 motion with prejudice. Mr. Perkins now seeks a COA to appeal from that
dismissal.
II. Discussion
A. Hobbs Act robbery claim
To obtain a COA of the district court’s procedural ruling that it lacked jurisdiction
to address Mr. Perkins’s challenge to his Hobbs Act robbery conviction, he must show
both “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. 473, 484 (2000). We need not address the constitutional question if
we conclude that reasonable jurists would not debate the district court’s resolution of the
procedural one. See id. at 485.
Mr. Perkins argues the district court erred in ruling that this court “did not
authorize the review of the Hobbs Act robbery conviction,” R., vol. 1 at 207. But he
conceded in his successive § 2255 motion that our authorization order “did not address
directly [his] challenge to the conviction and sentence on Count 1 [(Hobbs Act
robbery)].” Id. at 148.
We have explained that “under the plain language of §§ 2255(h) and 2244(b)(3),
prisoners must first obtain circuit-court authorization before filing a second or successive
4 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 5
habeas claim in district court.” In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008)
(per curiam). And we have further explained that “[a] district court does not have
jurisdiction to address the merits of a second or successive § 2255 . . . claim until this
court has granted the required authorization.” Id. at 1251.
Our order granted Mr. Perkins “authorization to file a second or successive § 2255
motion in district court limited to challenges to his § 924(c) convictions and sentence and
to the enhancement of his sentence under the ACCA.” R., vol. 1 at 44 (emphasis added).
We did not grant authorization for him to challenge his Hobbs Act robbery conviction.
See id. Reasonable jurists would therefore not debate the district court’s procedural
ruling that it lacked jurisdiction to consider the merits of Mr. Perkins’s unauthorized
successive § 2255 claim challenging his Hobbs Act robbery conviction.
B. Section 924(c) and ACCA claims
When a district court has rejected § 2255 claims on the merits, the showing to
obtain a COA “is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484.
In his COA application, Mr. Perkins argues that Hobbs Act robbery is not a crime
of violence as defined in § 924(c)(3)(A). But he also “acknowledges authority from the
Tenth Circuit that is contrary to his position with respect to the issue whether Hobbs Act
robbery is a crime of violence under the elements clause in § 924(c)(3)(A).” COA Appl.
at 24 (citing United States v. Melgar-Cabrera, 892 F.3d 1053, 1065 (10th Cir. 2018)).
And he further “acknowledges Circuit authority precluding this panel from diverging
5 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 6
from the prior precedent of another panel of this Court ‘absent en banc reconsideration or
a superseding contrary decision by the Supreme Court.’” Id. at 24-25 (quoting
In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)). At the conclusion of his argument, he
states that he “raises this issue for purposes of preservation for en banc reconsideration
and/or Supreme Court review.” Id. at 29.
Binding Tenth Circuit precedent holds that Hobbs Act robbery is categorically a
crime of violence under the elements clause in § 924(c)(3)(A), see Melgar-Cabrera,
892 F.3d at 1060-61, 1060 n.4, 1065; United States v. Baker, ___F.4th___, No. 3062,
2022 WL 4458434, at *5-8 (10th Cir. Sept. 26, 2022), and Mr. Perkins’s § 924(c)
convictions were predicated on his Hobbs Act robbery conviction. Reasonable jurists
could therefore not debate the district court’s conclusion that Mr. Perkins’s § 924(c)
convictions remain valid after Davis.
Finally, Mr. Perkins argues he has not been convicted of three or more violent
felonies within the meaning of § 924(e). But he again acknowledges that there is
contrary Tenth Circuit precedent on whether certain of his convictions satisfy the
elements clause under the ACCA. See COA Appl. at 31 (citing United States v.
Manzanares, 956 F.3d 1220, 1226 (10th Cir. 2020), cert. denied, 141 S. Ct. 1396 (2021)).
And he again states he is raising this issue to preserve it for en banc consideration and/or
Supreme Court review. Id.
Because binding Tenth Circuit precedent holds that convictions for New Mexico
armed robbery and New Mexico aggravated battery are violent felonies under the
elements clause in § 924(e), see Manzanares, 956 F.3d at 1226, 1228, and Mr. Perkins’s
6 Appellate Case: 22-2043 Document: 010110749421 Date Filed: 10/05/2022 Page: 7
sentence was enhanced due to prior convictions for those same offenses, reasonable
jurists would not debate the district court’s determination that his ACCA sentence
enhancement remains valid after Johnson.
III. Conclusion
We deny a COA.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk