UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MAURICE A. BYERS, Defendant - Appellant. No. 17-6089 (D.C. Nos. 5:16-CV-00537-HE and 5:05-CR-00010-HE-1) (W.D. Okla.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.
Petitioner Maurice A. Byers, a federal pris oner, seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas petition. In 2005, Petitioner pled gu ilty to being a felon in possession of a firearm and to possessing body armor after having been convicte d of a crime of violence, in violation of 18 U.S.C. §§ 922(g)(1) and 93 1. The Armed Career Criminal Act provides for an enhanced penalty for persons convicted of an offense under 18 U.S.C. § 922(g) who have three distinct prior convictions for either a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(1). The court found Petitione r to be an armed career criminal based

* This order is not binding precedent, except under the do ctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 27, 2018
Elisabeth A. Shumaker Clerk of Court2 on his criminal history of three or more violent felonies—which included previous Oklahoma convictions for (1) se cond-degree burglary, (2) ro bbery with a firearm, (3) shooting with intent to kill, and (4) assault with a de adly weapon—and sentenced him to 180 months on the felon-in-possession charge a nd a concurrent sentence of 36 months on the possession-of-body-armor charge. Petitioner’s conviction and senten ce were affirmed on appeal. United States v. Byers , 172 F. App’x 234 (10th Cir. 2006). At the time of sentencing, the ACCA defined “violent felony” via three possible clauses: any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such te rm if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another [use of force or elemen ts clause]; or (ii) is burglary, arson, or extortion, in volves use of explosives [enumerated clause], or otherwise involves conduct th at presents a serious potential risk of physical injury to anot her . . . [residual clause]. 18 U.S.C. § 924(e)(2)(B). In his habeas petition, filed in 2016, Petitioner seeks sentencing relief based on Johnson v. United States , 135 S. Ct. 2551 (2015), which invalidated the residual clause of 18 U.S.C. § 924(e)(2)(B). The gravamen of his argument is that he is entitled to Johnson relief because three of his prior convictions only qualified as violent felonies under this now-void residual clause. In a § 2255 appeal, we “review the district court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Barrett , 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omit ted). The habeas statute “a llows a § 2255 motion to be filed within one year of ‘the date on which the right assert ed was initially recognized by the Supreme Court.’” United States v. Snyder , 871 F.3d 1122, 1126 (2017) (quoting 283 U.S.C. § 2255(f)(3) (e mphasis omitted)). Johnson ’s holding that the § 924(e)(2)(B) residual clause is constitutiona lly invalid was made retroac tive for all cases on collateral review. See Welch v. United States , 136 S. Ct. 1257, 1265 (2016). “[I]n order to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly recognized right, regardless of whether or not the fact s of record ultimately support the movant’s claim.” Snyder , 871 F.3d at 1126. Here, Petitioner in voked the newly recognized right in Johnson by arguing that the district court nece ssarily relied on the now-invalid residual clause in § 924(e)(2)(B) to determine his se ntence. Because Petitioner filed his motion to vacate within a year of Johnson , his motion is timely under § 2255. Petitioner has also adequately show n both cause and pr ejudice. His “ Johnson claim was not reasonably available to [Petitione r] at the time of hi s direct appeal” in 2005, which this court has previously determ ined “is sufficient to establish cause.” Snyder, 871 F.3d at 1127-28; see also United States v. Driscoll , --- F.3d ---, 2018 WL 2976271, at *6-7 (10th Cir. June 14, 2018 ). If Petitioner is correct regarding his Johnson claim, he should not have received a senten ce enhancement under the ACCA. Given that a “sentence that is not authorized by law is certainly an ‘actual and substantial disadvantage’ of ‘constitutional dimensions,’” Snyder , 871 F.3d at 1128 (quoting United States v. Frady , 456 U.S. 152, 170 (19 82)), Petitioner has demonstrated actual prejudice resulting from the alleged Johnson error, Driscoll , 2018 WL 2976271, at *7. Thus, Petitioner’s claim overcomes a ny procedural default. See Snyder , 871 F.3d at 1127-28; Driscoll , 2018 WL 2976271, at *3.4 Notwithstanding this preliminary anal ysis, we will only issue a COA “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showin g, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matte r, agree that) the petition should have been have been resolved in a different manner or that the issues presented were adequate to deserve encourag ement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation marks omitted). In § 2255 motions wh ere an unconstitutional reliance on the § 924(e)(2)(B) residual clause is asserted, the burden is on the defendant to “prove that the sentencing court, more lik ely than not, relied on the residual clause to enhance his sentence under the ACCA.” Driscoll, 2018 WL 2976271, at *6; see also United States v. Washington , 890 F.3d 891, 896 (10th Cir. 2018) (“We hold that the burden is on the defendant to show by a preponderance of the evidence— i.e. , that it is more likely than no t—his claim relies on Johnson .). The sentencing court did not articulate wh ich of the three § 924(e)(2) clauses it relied upon to conclude that Petitioner’s prio r convictions constituted “violent felonies” under the ACCA. Petitioner argues that hi s past crimes do not constitute predicate felonies absent the now-void residual clause , so there is no constitutional basis for his § 924(e) enhancement. However, nothing in the sentencing record or the “relevant background legal environment at the time of sentencing” suggests that Petitioner’s sentence was enhanced base d on the residual clause. Snyder , 871 F.3d at 1129. At the time Petitioner was sentenced, we had repeatedly held that Oklahoma second-degree burglary qualified as an enum erated offense if underlying documents5 indicated that the defendant burgled a building. See United States v. Green , 55 F.3d 1513, 1515-16 (10th Cir. 1995); United States v. Hill , 53 F.3d 1151, 1153-55 (10th Cir. 1995) (en banc); United States v. Amos , 984 F.2d 1067, 1070 -71 (10th Cir. 1993); see also Taylor v. United States , 495 U.S. 575, 602 (1990). In Amos , we declined to analyze whether Oklahoma second-degree burglary invol ved “serious potential risk of physical injury to another” because we concluded the crime “meets the Taylor court’s definition of burglary” under the enumerated offense clause and thus “qualifies as a ‘violent felony.’” 984 F.2d at 1071. Here, the information stat es that Petitioner was charged with “wilfully and knowingly br[eaking] and enter[ing] a dwelling . . . by entering through the bedroom window, with the intent to commit larceny, without the knowledg e or consent of the owner.” (R. Vol I at 61 (e mphasis added).) Petitioner “c ites no authority indicating Oklahoma second-degree burglary also qualifie d under the ACCA’s residual clause.” Washington , 890 F.3d at 897, and “there would have been little dispute at the time of . . . sentencing,” Snyder , 971 F.3d at 1129, that Petitioner’s burglary conviction qualified as an enumerated offense. See United States v. Rhodes , 721 F. App’x 780, 782 (2018); Washington , 890 F.3d at 897-98. Thus, Petitioner ha s not met his burden of showing that the sentencing court more likely than not relie d on the residual clause in classifying his Oklahoma burglary as a predicate crime of violence. Petitioner was convicted for robbery with a firearm under Oklahoma Title 21, § 801, which imposes an increased penalty on a defendant who “with the use of any firearms or any other da ngerous weapon . . . attempts to r ob or robs any place of business, residence or banking institution or any other place inhabited or attended by any person or6 persons.” Okla. Stat. tit. 21, § 801. Oklahoma defines robbery as “a wrongful taking of personal property in the posse ssion of another, from his pers on or immediate presence, and against his will, accomplished by means of fo rce or fear.” Okla. Stat. tit. 21, § 791; see also Cannon v. State , 107 P.2d 809, 810 (Okla. Crim. App. 1940) (recognizing that Section 801 was a statute of “classificati on,” while Section 7 91 was a statute of “definition”). This court has previously dete rmined that Oklahoma robbery by “force or fear,” as defined in § 791, satisfies the use of force clause of the ACCA. See United States v. Cherry , 641 F. App’x 829, 831- 33 (10th Cir. 2016). Robbery with a dangerous weapon under § 801 thus nece ssarily includes the wrongful taking of property from another “by force or fear” using a dangerous weapon. See United States v. Hill , 722 F. App’x 814, 817 (10t h Cir. 2018) (citing Primeaux v. State , 88 P.3d 893, 906 (Okla. Crim. App. 2004)). “A conviction under § 801 theref ore required proof of the use, threatened use, or attempted use of physical force,” a nd constitutes a violent fe lony under one of the still-valid clauses of 18 U. S.C. § 924(e)(2)(B). Hill , 722 F. App’x at 817. Petitioner again has not met his burden of showing a lik elihood that the sentencing court relied on the residual clause. Petitioner’s final two ACCA predicate crim es are (1) shooting with the intent to kill and (2) assault with a dead ly weapon, both of which were alleged as violations of Oklahoma Title 21, § 652. At the time Petitioner was charge d, this statute provided:
A. Every person who intentionally and wr ongfully shoots another with or discharges any kind of firearm, with intent to kill any person, shall upon conviction be punished by imprisonm ent in the State Penitentiary not exceeding life.7 B. Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weap on in conscious disr egard for the safety of any other person or persons shall upon conv iction be punished by imprisonment in the State Penitentiary fo r a term of not less than two (2) years nor more than twenty (20) years.
C. Any person who commits any assault and battery upon another by means of any deadly weapon, or by such other me ans or force as is likely to produce death, or in any manner attempts to k ill another, or in resisting the execution of any legal process, shall upon convicti on be punished by imprisonment in the State Penitentiary not exceed ing twenty (20) years. Okla. Stat. tit. 21, § 652(C). The crime of shoot ing with the intent to kill, as defined in subparagraph A, clearly has as an element the use of violent force, capable of causing physical pain or injury to another person. See Johnson v. United States (Curtis Johnson ), 559 U.S. 133, 140 (20 10). Petitioner does not challenge this position. With respect to Petitioner’s predicate assaul t, this court has previously determined that “assault and battery with a deadly weapon und er Okla. Stat. Ann. tit. 21, § 652(C) (1994) [which contained identical language] has as an element the use, attempted use, or threatened use of physical for ce against the person of another.” United States v. Burtons , 696 F. App’x 372, 381 (10th Cir. 2017) (citing § 924(e)(2)(B)(i)) (quotation marks omitted). Petitioner tries to argue that this c onviction is not a crime of violence because Oklahoma law requires “only the slightest fo rce or touching” to constitute a simple assault, see Steele v. State , 778 P.2d 929, 931 (O kla. Crim. App. 1989), which falls short of the “violent force—that is, force capable of causing physical pain or injury to another person”—required to satisfy the us e of force or elements clause, Curtis Johnson , 559 U.S. at 140 (emphasis omitted). When pr esented with this argument, we have consistently held that “the additional elemen t of a deadly or dangerous weapon makes an8 apprehension-causing assault a crime of violen ce, even if the simp le assault would not be.” United States v. Mitchell , 653 F. App’x 639, 643-45 (10th Cir. 2016) (relying on United States v. Ramon Silva , 608 F.3d 663, 670 (10th Cir. 2010)); see also Washington , 890 F.3d at 899-901 (explaining that Ramon Silva has been abrogated by Mathis v. United States , 136 S. Ct. 2243 (2016), but that Ramon Silva and other precedents are still important to consider in dete rmining “[t]he relevant background legal environment at the time of Defendant’s sentencing,” which is important for deciding whether or not the conviction was more like ly than not based on the residua l clause). For these reasons, the conviction for assault with a deadly weapon stands as a predicate ACCA offense under the use of force or elements clause and is, therefore, unchanged by Johnson

. Petitioner has not met his burden of show ing by a preponderance of the evidence that the sentencing court relied on the now-void residual clause in determining that his predicate convictions were crimes of viol ence for the purpose of an ACCA-based sentence enhancement. Reasonable jurists w ould not debate whether Petitioner has been denied a constitutional right. For these reasons, we DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge