UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PEDRO C. GARCIA, Defendant - Appellant. No. 17-3266 (D.C. Nos. 6:17-CV-01011-JTM & 6:12-CR-10089-JTM-2) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT 

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ In 2013, a jury convicted Pedro C. Garcia of conspiring with other members of a criminal gang to violate the Racketeer Influe nced and Corrupt Orga nizations Act (RICO); committing various violent crimes, including murder in violation of Kansas law, in aid of racketeering; and two counts of possessing a nd brandishing or disc harging a firearm in furtherance of crimes of violence (murde r and aggravated robbery), in violation of 18 U.S.C. § 924(c)(1)(A). In 2014, the district court sent enced him to life imprisonment

 After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 23, 2020 Christopher M. Wolpert Clerk of Court2 plus a mandatory, consecutive term of 32 y ears for the § 924(c)(1)(A) violations. This court affirmed, see United States v. Garcia , 793 F.3d 1194, 1199 (10th Cir. 2015), and the Supreme Court denied review, Garcia v. United States , 136 S. Ct. 860 (2016). Within one year of the date on which Garcia’s conviction became final, he filed a pro se motion for postconvicti on relief under 28 U.S.C. § 2255. 1 The district court denied the motion and Garcia’s motion to a lter or amend its judgment, but it granted a certificate of appealability (COA) on one issue— whether “the court’s murder instruction [relating to Garcia’s Count 6 conviction] was erroneous under Johnson [ v. United States , 135 S. Ct. 2551 (2015)]” ( Johnson II ). R., Vol. II at 257. Still pro se, Garcia has filed a combined COA application and opening brief, seeking to expand th e COA to include two other issues: (1) the district erred in de termining that his “cha llenge as to Count 9 [regarding his § 924(c)(1)(A) conviction] (and Count 6) was procedurally defaulted because that challenge was based on Johnson [II] ”; and (2) the denial of relief on his “due process claim that the prosecutor commi tted misconduct is for[e]closed.” Opening

1 Section 2255(f) provides a one-year lim itations period for § 2255 motions. One way to measure that period is from “the date on which the judgment of conviction becam[e] final.” § 2255(f)(1). Garcia’s c onviction became final when the Supreme Court denied his petition for a writ of certiorari on January 11, 2016. See United States v. Prows , 448 F.3d 1223, 1227 (10t h Cir. 2006) (“In the context of the one-year limitation period for filing a § 2255 motion, a criminal conviction becomes final when the Supreme Court affirms it on direct review, denies cert iorari, or (in the absence of a certiorari petition) the time for filing a certiorari petiti on expires.”). Garcia ’s § 2255 motion bears a district-court file stamp dated January 13 , 2017, which is beyond the (f)(1) period, but under the prison-mailbox rule, we conclu de that his motion was timely under § 2255(f)(1). See Price v. Philpot , 420 F.3d 1158, 1166 (10th Cir. 2005) (explaining parameter of prison-mailbox rule).3 Br. at 2 (most capitalization omitted). He also seeks leave to proceed without prepayment of costs and fees (IFP). Constr uing Garcia’s pro se filings liberally, but without acting as his advocate, see Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008), we (1) affirm the denial of relief on th e Count 6 murder-instruc tion issue; (2) grant a COA on his Count 9 claim, reverse the deni al of relief on that claim, and remand for further proceedings; and (3) deny a COA on his prosecutorial-mi sconduct claim. We also grant IFP.
I. Issue on which COA was granted
A. District court proceed ings concerning Count 6 Count 6 of the indictment charged Ga rcia with possessing and discharging a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). The district court instructed the jury that the predicat e crime charged in Count 6, first-degree murder in violation of Kan. Stat . Ann. § 21-5402, “is a crime of violence.” Supp. R., Vol. 1 at 59. For purposes of § 924(c)(1)(A), a “crime of violence” is “an offense that is a felony” that “(A) has as an element the use, attempte d use, or threatened use of physical force against th e person or property of another” or “(B) that by its nature, involves a substantial risk th at physical force against the person or propert y of another may be used in the course of committing th e offense.” § 924(c)(3). We refer to § 924(c)(3)(A) as the “elements” clause (G arcia calls it the “force” clause), and to § 924(c)(3)(B) as the “residual clause.” While Garcia’s direct appeal was pending, the Supreme Court decided Johnson II , holding unconstitutionally vague a similar residua l clause in the definition of “violent4 felony” in the Armed Career Criminal Act (ACCA)—“any crime punishable by imprisonment for a term exceedin g one year . . . that . . . ot herwise involves conduct that presents a serious potential risk of ph ysical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii). 135 S. Ct. at 2557. In his § 2255 motion, Garcia’s entire ar gument regarding the Count 6 instruction was: “Per the holding in Johnson murder is not categorically a ‘crime of violence’ within the meaning of § 924(c)(3)(B) since physical fo rce is not required to be held accountable for the offense of murder.” R., Vol. II at 141. The district court decided the claim was procedurally defaulted because Garcia did not present good ca use for failing to raise it on direct appeal. In the alternative, the court determined the claim had no merit. The court concluded Garcia failed to sh ow how the crime charged was not a crime of violence because Kan. Stat. Ann. § 21-5402(a)(1) “defines murder in the first degree as a killing of a human being intentionally and with premedit ation,” and the jury ha d returned a special verdict finding Garcia had committed firs t degree murder. R., Vol. II at 211.
B. Standard of review The district court did not hold an eviden tiary hearing where it made findings, so our review is de novo. See United States v. Copeland , 921 F.3d 1233, 1242 (10th Cir. 2019). C. Discussion In his opening appellate brief, Garcia cont ends that Kansas first degree murder cannot qualify as a crime of violence under § 924(c)(3)’s residual clause because that clause is unconstitutionally va gue under the reasoning of Johnson II . He also argues the5 murder instruction was erroneous because the term “physical force” as used in § 924(c)(3)’s elements clause means “v iolent force” under the reasoning of Johnson v. United States , 559 U.S. 133 (2010) ( Johnson I ). In Johnson I , the Supreme Court construed the ACCA’s elements clause, § 924(e)(2)(B)(i), which defines a “violent felony” as a felony that “has as an element the use, attempte d use, or threatened use of physical force against the person of another. ” The Court held thatin defining “violent felony,” “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or in jury to another person.” Johnson I , 559 U.S. at 140

. Relying on Johnson I ’s holding, Garcia argues that fi rst degree murder under Kan. Stat. Ann. § 21-5402(a) does not require any “violent force” at all because it can be committed by poisoning, and unde r controlling case law at the time of his sentencing, murder by poisoning did not require violent p hysical force. In his reply brief, Garcia clarifies that the “essence” of his claim concer ning Count 6 is that his murder conviction could only qualify as a crime of violence under the residual clause because it does not require the use of physical force necessary to satisfy the elements clause, and the residual clause is unconstitutionally vague under Johnson II and our decision in United States v. Salas , 889 F.3d 681 (10th Cir. 2018), cert. denied , 139 S. Ct. 2773 (2019). 2 In Salas , we held that § 924(c)(3)’s residua l clause is unconstitutional under Sessions v. Dimaya , 138 S. Ct. 1204, 1213-16 (2018), wh ere the Supreme Court extended Johnson II ’s

2 We decided Salas after Garcia filed his opening brief in this appeal.6 reasoning to hold that a simila rly worded clause in the definition of “v iolent felony” in 18 U.S.C. § 16(b) was unc onstitutionally vague. Salas , 889 F.3d at 684–86. The government advances a number of pr ocedural reasons why we should not entertain the merits of this argument, but we need not sort those out because none are jurisdictional and it’s clear the argument loses on the merits. See Brown v. Sirmons , 515 F.3d 1072, 1092-93 (10th Cir. 2008) (hol ding that for efficiency, we can avoid questions of procedural bar if it is easier to rule on the merits); Proctor & Gamble Co. v. Haugen , 222 F.3d 1262, 1271 (10th Cir. 2000) (noting this court’s discretion to depart from general rule that we do no t consider matters not raised or argued in the district court “[w]here the issue is purely a matter of law and its proper resolution is certain” (ellipses and internal quotation marks omitted)). Our merits analysis proceeds from the observation that in United States v. Davis , 139 S. Ct. 2319, 2336 (2019), th e Supreme Court confirmed what Salas held—that like the ACCA residual clause at issue in Johnson II , § 924(c)(3)’s residual clause, “§ 924(c)(3)(B)[,] is un constitutionally vague.” 3 And we have said that “in striking down § 924(c)(3)(B) as void for vagueness, Davis created a new constitutional rule,” United
States v. Bowen , 936 F.3d 1091, 1098 (10th Cir. 2019), that is “ret roactively applicable to cases on collateral review,” id. at 1100. Further, we will assume, for the sake of argument, that Garcia’s § 924(c)(1)(A) co nviction rested on the residual clause. See
Bowen , 936 F.3d at 1108-09 (examining whet her conviction “rested on § 924(c)(3)’s

3 The Supreme Court decided Davis after the parties in this appeal completed their briefing.7 residual clause” in order to determine if di strict court’s reliance on that clause was harmless in light of fact that conviction did not categorically qualify under elements clause). Based on that assumption, we conclude that the district court erred in relying on the residual clause because Garcia’s “convic tion was imposed under an invalid—indeed, unconstitutional—legal theory, and that [he] was, therefore, co nvicted in violation of the Constitution.” Id. at 1108 (brackets and intern al quotation marks omitted). We now must determine if the error in the jury instruction was harmless by considering whether it “‘had a substantial and in jurious effect or infl uence in determining the jury’s verdict.’” Id. at 1109 (quoting Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)). Davis harmless-error review requires us to look at whether Garcia’s murder conviction would qualify as a cr ime of violence under the elements clause based on the current state of the law, not on what th e law was at the time of sentencing. See United
States v. Lewis , 904 F.3d 867, 873 (10th Cir. 2018) (“We apply current law . . . because Johnson [II] harmless error review goes to the question of remedies . . . .”). The Kansas first-degree-murder statute provid es: “(a) Murder in the first degree is the killing of a human being committed: (1) Intentionally, and with premeditation; or (2) in the commission of, atte mpt to commit, or flight from any inherently dangerous felony.” Kan. Stat. Ann. § 21-5402(a). 4 Garcia argues this statute does not qualify as a

4 The parties debate whether § 21-5402(a) is a divisible statute and whether we should apply the categorical or the modifi ed-categorical approach to determine if Garcia’s murder conviction qualifies as a crim e of violence under § 924(c)(3)’s elements clause. We need not resolve this debate because Garcia’s argument fails under either approach. But we note (withou t deciding) that the statute itself strongly indicates it is not divisible. See § 21-5402(d) (“Murder in the first degr ee as defined in subsection (a)(2) is8 crime of violence under the elements clau se in § 924(c)(3)(A) because first-degree murder can be accomplished by poisoning, wh ich does not require the use of violent physical force. We disagree. In two recent cases we have definitively rejected the argument that poisoning does not require the use of violent physical force. In United States v.
Ontiveros , 875 F.3d 533, 536-38 (10t h Cir. 2017), we explained that the Supreme Court’s decision in United States v. Castleman , 572 U.S. 157 (2014), fatally undermined contrary, earlier Tenth Circuit precedent on th is point, including a case Garcia relies on here, United States v. Rodriguez-Enriquez , 518 F.3d 1191 (10th Cir. 2008). See also United States v. McCranie , 889 F.3d 677, 679 (10th Ci r. 2018) (recognizing that
Ontiveros “overruled” Rodriguez-Enriquez based on Castleman ), cert. denied , 139 S. Ct. 1260 (2019). Although Ontiveros concerned whether the “use of physical force” rendered an offense a crime of viol ence under U.S.S.G. § 4B1.1(a), see 875 F.3d at 535, we extended Ontiveros ’s reasoning to § 924(c)(3)(A) in United States v. Melgar-Cabrera , 892 F.3d 1053, 1066 (10th Cir.), cert. denied , 139 S. Ct. 494 (2018). To the extent Garcia relies on dictum in Rummel v. Estelle , 445 U.S. 263 (1980), it is not controlling in light of Castleman

. 5

an alternative method of proving murder in th e first degree and is not a separate crime from murder in the first degree as defined in subsection (a)(1).”); see also Mathis v. United States , 136 S. Ct. 2243, 2256 (2016) (“[A] st atute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).”).

5 The Rummel dictum Garcia points to is a comment that “Caesar’s death at the hands of Brutus and his fellow conspirato rs was undoubtedly violent; the death of Hamlet’s father at the hands of his brother, Claudius, by poison , was not.” Rummel ,9 Because Garcia has failed to show that fi rst-degree murder in violation of Kan. Stat. Ann. § 5402(a) is not a crime of violen ce as defined in § 9 24(c)(3)(A)’s elements clause, any error by the district court in relying on § 924(c)(3)(B )’s residual clause, recognized as unconstitutionally vague in Davis and Salas , was harmless under Brecht

. We therefore affirm the district cour t’s denial of § 2255 relief on Garcia’s jury-instruction issue.
II. Issues on which COA was not granted Garcia seeks a COA on two additional issues. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal final order in a § 2255 proceeding). Those issues are whether (1) his “challenge as to Count 9 (and Count 6) was procedurally defaulted because that challenge was based on Johnson [II] ”; and (2) his “due process claim that the prosecutor committed misconduct is for[e]closed.” Opening Br. at 2 (typeface altered). A COA may issue “only if th e [petitioner] has made a su bstantial showing of the denial of a constitutional right.” § 2253(c)(2 ). The district court held that these two issues were procedurally defaulted. Therefor e, to obtain a COA, Garcia must show “that jurists of reason would find it debatable whethe r [those grounds] state[] a valid claim of the denial of a constitutional right and . . . wh ether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “The COA inquiry . . . is not coextensive with a merits analysis ,” and should be co nducted “without full

445 U.S. at 282 n.27 (emphasis added). Th e majority opinion ma de this comment in rejecting the dissenting opinion’s view that there are objective st andards for imposing more severe penalties if a crime involves violence.10 consideration of the factual or legal base s adduced in support of the claims.” Buck v.
Davis , 137 S. Ct. 759, 773 (2017) (i nternal quotation marks omitted).
A. Johnson II challenge to Count 9 6 The jury convicted Garcia of Count 9, possessing and brandishing a firearm in furtherance of a crime of violence in viola tion of § 924(c)(1)(A). Count 9 charged that Garcia did knowingly possess firearms and bran dish firearms, in furtherance of a crime of violence for which [he] may be prosecuted in a court of the United States, to wit: 18 U.S.C. §1951 and 18 U.S.C. §1959, referencing Aggravated Robbery, in violation of Kan. Stat . Ann. §21-5420(b)(1) (formerly §21-3427). In violation of Title 18, United States Code, 924(c)(1)(A) and Section 2. R., Vol. II at 61-62. 7 The district court instructed th e jury that to convict Garcia on Count 9, it had to find he “committed the crime of aggravated robbery as charged in count 9 of the indictment, which is a crim e of violence.” Supp. R., Vol. 1 at 60 (emphasis added). In his § 2255 motion, Garcia made two arguments regarding Count 9: (1) § 924(c)(1)(A) applies only wh ere the predicate “crime of violence” is one for which

6 Garcia’s request for a COA on this i ssue also challenges the district court’s application of procedural default to Count 6. Because we have overlooked procedural default on the Count 6 issue and affirmed the denial of relief on the merits, we confine our analysis here to Count 9.

7 Section 1951 is Hobbs Act robbery, and § 1959 is the VICAR (violent crimes in aid of racketeering) statute, which punishes certain types of crimes committed in aid of a racketeering activity, see § 1959(a). The indictment contained no separate counts of either Hobbs Act robbery or Kansas aggravated robbery.11 a “person may be prosecuted in a court of the United States ,” § 924(c)(1)(A), but Kansas aggravated robbery is not pr osecutable in federal court; and (2) Kansas aggravated robbery “is not categorically a ‘crime of vi olence’ within the meaning of § 924(c)(3)(B) per the holding in Johnson [II] ,” R., Vol. II at 141. The dist rict court addressed only the first of these two arguments, concluding it was procedurally defaulted because Garcia could have raised it at trial or on direct appeal. Id. at 210. In the alternative, the court determined the argument lacked mer it. The court did not address the Johnson II component of Garcia’s argument regarding Count 9, yet it treated the entirety of the Count 9 argument as procedurally defaulted and did not provide an alternative merits analysis of the Johnson II challenge. In seeking a COA on this issue, Garc ia contests only the district court’s application of procedural bar to the Johnson II part of this issue, faulting the district court for not actually examining whethe r that part was procedurally barred. He claims that if the court had applied Johnson II , it would have found that a ggravated robbery under Kan. Stat. Ann. § 5420(b)(1) “is not a crime of violence under 18 U.S.C. § 924(c) after Johnson [II] .” Aplt. Opening Br. at 7. 8 The thrust of Garcia’s appellate argument is that

8 Garcia makes two other arguments base d on Count 9’s reference to Hobbs Act robbery and § 1959: “Hobbs Act Robbery is not a crime of violence under . . . § 924(c),” and “a violation of 18 U. S.C. § 1959(4) . . . is also not a ‘crime of violence[’] under . . . § 924(c).” Aplt. Opening Br. at 7. We need not address these arguments because it appears neither Hobbs Act robbery nor § 1959 was the basis for the § 924(c)(1)(A) conviction. As noted, th e jury was instructed th at to convict Garcia on Count 9, it had to find he committed “aggravated robbery.” Supp. R., Vol. 1 at 60. And at the jury-instruction conference, the government commented that “the violent crime [in Count 9] was plead as an aggravated robbery, a state aggravated robbery.” Id. , Vol. 2 at 47 (emphasis added).12 if § 924(c)(3)’s residual clause is void fo r vagueness and his conviction for Kansas aggravated robbery is not a crime of violen ce under § 924(c)(3)’s elements clause, then his Count 9 conviction was based on an act that is not a crime of violence within the meaning of § 924(c)(1)(A). Because Davis has now confirmed that § 924(c)(3)’s residual clause is unconstitutionally vague, we can re state Garcia’s argument as follows: His Count 9 conviction is valid only if, at th e time he was convicted, Kansas aggravated robbery was a crime of violence u nder § 924(c)(3)’s elements clause. We think reasonable jurists could debate whether the district court’s procedural ruling was wrong and whether Ga rcia has a facially valid claim of the denial of a constitutional right. We therefore grant a COA on this issue and undertake full consideration of whether Garcia can overcome procedural default of the Johnson II part of his Count 9 claim.
1. Procedural default “Where a defendant has procedurally de faulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” United States v. Challoner , 583 F.3d 745, 749 (10th Cir. 2009) (internal quotation marks omitted). We address cause and prejudice in turn, and because we conclude there is cause and prejudice here, we need not consider actual innocence.

a. Cause Cause excusing procedural default exists wh ere a claim “is so novel that its legal basis was not reasonably available to counse l at the time of the direct appeal.” United13 States v. Snyder , 871 F.3d 1122, 1127 (10th Cir. 2017 ) (brackets and internal quotation marks omitted)). And we have said that a Johnson II claim regarding ACCA’s residual clause is such a claim. Id. As Garcia points out, Johnson II was decided only eighteen days before this court issued its decision in hi s direct appeal. He could have filed a notice of supplemental authority in his direct appe al, but that would have required broaching a whole new issue that he did not first presen t to the district court, and it was then questionable whether Johnson II ’s holding that ACCA’s residual clause was unconstitutionally vague extended to other similar residual clauses. Based on the timing here, it would be unfair to conclude Garcia should have raised his Johnson II issue regarding Count 9 as part of his direct appe al, let alone at trial. Our conclusion is buttressed by the fact that the source of the constitutional principle relevant to § 924(c)(3)’s residual clause is not found in Johnson II but in Davis , see 139 S. Ct. at 2336 (holding that § 924(c)(3)’s residual clause, “§ 924(c)(3)(B)[,] is unconstitutionally vague”), which wa s decided well after Garcia’s direct appeal was final. Indeed, given that it is Davis that cements the viability of Ga rcia’s legal theory, which we earlier endorsed in Salas , there is cause to excuse Garcia from not raising this claim at trial or on direct appeal. We find unpersuasive the government’s argument that this is just a Johnson I claim Garcia could have raised at trial or on direct appeal . As Garcia points out, this claim relies not only on Johnson I but on an extension of Johnson II to § 924(c)(3)(B), because to obtain relief, he must show that the predicate cr ime for the Count 9 conviction does not qualify as a crime of violence under § 924(c)(3)’s elements cl ause or its residual14 clause. Absent Johnson II , and now Davis , a Johnson I argument on direct appeal would have failed to show that the predicate crim e did not qualify under the residual clause, which was then a novel legal theory. b. Prejudice We also conclude Garcia would be prejudi ced if procedural default bars him from raising his Count 9 issue in his § 2255 motion. Prejudice exists where the alleged error is one “of constitutional dimensions that worked to [a defendant’s] actual and substantial disadvantage.” Snyder , 871 F.3d at 1128 (inter nal quotation marks omitted). If Garcia is correct that Kansas aggravated robbery was not a crime of violence within § 924(c)(3)’s elements clause at the time of his conviction, and given that Davis ’s holding (that § 924(c)(3)’s residual clause is unconstitutional) is retroactively applicable to cases on collateral review per Bowen , 936 F.3d at 1100, then Ga rcia’s Count 9 conviction was “not authorized by law,” which “is certainl y an actual and substantial disadvantage of constitutional dimensions,” Snyder , 871 F.3d at 1128 (internal quotation marks omitted). The assumption in the prece ding sentence—that Kansas aggravated robbery was not a crime of violence within the elements clause at th e time Garcia was convicted— implicates a number of cases de cided during the pendency of th is appeal or not addressed in the district court. And testing the truth of the assumption is intertwined with a merits analysis. In the district court, neither the government nor the cour t addressed the merits of this issue, and the government does not address them on appeal. Rather than seek additional briefing from the parties and decide this issue in the firs t instance ourselves, we think the better course is to remand to the district court for full development and15 consideration of the issue, including, if ne cessary, additional briefing from the parties on how (if at all) the recent developments in the law bear on the issue. Those recent developments include, without limitation, the Supreme Court’s decisions in Davis and Stokeling v. United States , 139 S. Ct. 544 (2019), and a number of our decisions, including, but not limited to, Bowen , United States v. Driscoll , 892 F.3d 1127, 1135 (10th Cir. 2018) (explaining that at the mer its stage of a first § 2255 motion, a movant “must prove that the sentencing court, mo re likely than not, relied on the residual clause”), and United States v. Bong , 913 F.3d 1252, 1259-60 (1 0th Cir. 2019) (holding that “Kansas convictions for robbery and ag gravated robbery do not constitute ‘violent felonies’ for purposes of the ACCA”). B. Prosecutorial misconduct In his § 2255 motion, Garcia argued the judgment shoul d be vacated because the prosecutor elicited false testimony from a key witness knowing it was false, and he failed to correct the false testim ony, all in violation of Napue v. Illinois , 360 U.S. 264 (1959). 9 The testimony was that of a key witness to the murder, Russell Worthey, who was also charged in the case, and concerned whether he had been promised anything in exchange for his testimony against Garcia. We discu ssed Worthey’s testimony about promises in our opinion deciding Garcia’s direct appeal, first in connection with a Brady 10 claim, see

9 Napue requires the prosecution to correct a witness’s statem ent they know is false. See 360 U.S. at 269-70.

10 Brady v. Maryland , 373 U.S. 83, 87 (1963), requires the prosecution to disclose material exculpatory evidence.16 Garcia , 793 F.3d at 1203-07, and then in connection with a Napue claim, see id. at 1207-09. We rejected both claims. The district court denied § 2255 relief on this issue, concluding it was procedurally barred because Garcia’s arguments “substantially replicate claims that were advanced to, and rejected by[,] the Tenth Circuit in the dire ct appeal.” R., Vol. II at 209. Garcia contends procedural bar does not apply becaus e the district court misstated the arguments he raised on direct appeal, and this court “n ever considered the te stimony [he focuses on] under Napue .” Aplt. Opening Br. at 14. We disagree. In our opinion deciding Ga rcia’s direct appeal, we considered the exact evidence Garcia now focuses on. See Garcia , 793 F.3d at 1204 (detailing a March 15, 2013 meeting between Worthey and one of the prosecutors in Garcia’s case, which reflected that Worthey would plead gui lty to certain charges and his sentence would “work down from 30” years because the judge “has been very good about following our recommendations in th e past”). We determined th at the failure to disclose this meeting after Worthey neglected to ment ion it at Garcia’s trial and testified that nobody had promised him anything fo r his testimony di d not constitute a Brady violation. See id. at 1205-07. We then considered Garcia’s Napue claim, which “closely resemble[d his] Brady claim,” id. at 1207, and concluded the di strict court had not clearly erred in finding either that Worthey had mere ly forgotten about the meeting and therefore had not committed perjury or th at the prosecutor also had simply forgotten about the meeting, id. at 1209. Consequently, we rejected Garcia’s Napue claim.17 In light of this, Garcia’s arguments fail to persuade us to issue a COA. “Under the law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments presented in a § 2255 motion that were rais ed and adjudicated on direct appeal.” United
States v. Trent , 884 F.3d 985, 994-95 (1 0th Cir. 2018) (brackets and internal quotation marks omitted). We’ve recognized three very narrow exceptions to this doctrine: “(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when th e decision was clearly erroneou s and would work a manifest injustice.” Id. at 995 (internal quotation marks omitte d). But Garcia has not argued that any of the exceptions apply, and we fail to see how any would. Therefore, reasonable jurists could not debate the correctness of the district court’s procedural ruling, and the issue is not deserving of encouragement to proceed further. Accordingly, we deny a COA on this issue.
III. Conclusion We affirm the district court’s denial of relief on the Count 6 issue and deny a COA on the prosecutorial-misconduct issue. But we grant Garcia’s applic ation to expand the COA with regard to the Count 9 claim, revers e the denial of § 2255 relief on that claim, and remand to the district court for further pr oceedings consistent with our decision. We also grant Garcia’s motion to proceed IFP on appeal, but he remains obligated to pay the full filing and docketing fees to the Clerk of the United States Dist rict Court for the18 District of Kansas. See 28 U.S.C. § 1915(a)(1) (per mitting litigants to avoid only prepayment of such fees).

Entered for the Court
Nancy L. Moritz Circuit Judge