UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GEORGE ANTHON Y AUTOBEE, Defendant - Appellant. No. 17-1082 (D.C. No. 1:16- CV-01526-LTB

and 1:05-CR-00054-LTB-1) (D. Colorado)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before PHILLIPS , McKAY, and McHUGH , Circuit Judges.

George Anthony Autobee, through counsel, seeks a certificate of appealability (COA) to challenge the district court’s deni al of his motion under 28 U.S.C. § 2255 to vacate his sentence. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Autobee’s request fo r a COA and dismiss this a ppeal in its entirety. BACKGROUND I. Mr. Autobee pled guilty and was convic ted of two counts of using a firearm during and in relation to a crime of violen ce under 18 U.S.C. § 92 4(c). The predicate

* This order is not binding p recedent, 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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 6, 2017
Elisabeth A. Shumaker Clerk of Court2 crime of violence was armed bank robbery, 18 U.S.C. § 2113(a ), (d). In 2006, Mr. Autobee was sentenced to 60 months’ imprisonment on Count 1 and 240 months’ imprisonment on Count 2, for a total prison term of 300 mont hs. Mr. Autobee did not file a direct appeal. On June 20, 2016, Mr. Autobee filed a 28 U.S.C. § 2255 motion requesting that the district court vacate his sentence ba sed on the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2551 (2015). In Johnson , which issued on June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Id. at 2557. 1 The ACCA’s residual clause defines a “violent felony” as a felony that “involves conduct th at presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Relying on Johnson , Mr. Autobee argued in his motion that armed bank robbery is not a “crime of violence” under 18 U.S.C. § 924(c)(3). Section 924( c)(3) defines “crime of violence” as a felony that: (A) has as an element the use, attempted use, or th reatened use of physical force against the person or property of another, or (B) by its nature, involves a substantial risk that physical force against the person or property of anot her may be used in the course of committing the offense. Id. § 924(c)(3). Mr. Autobee claimed that arme d bank robbery does not constitute a crime of violence under § 924(c)(3)(A), also known as the elements clause, and that he was therefore necessarily convicte d under § 924(c)(3)(B), also kno wn as the risk of force

1 The Court later made Johnson ’s holding retroactive to cases on collateral review in Welch v. United States , 136 S. Ct. 1257, 1265 (2016).3 clause. Mr. Autobee further main tained that the risk of fo rce clause is unconstitutionally vague because of its similarity to the ACCA’s residual clause. In response, the government contended that Mr. Autobee’s motion is untimely because it was filed more than one year after the judgment of conviction became final.
See 28 U.S.C. § 2255(f)(1). And, even thou gh Mr. Autobee filed hi s motion within one year of Johnson , the government claimed that Johnson did not establish the right Mr. Autobee now asserts, i.e., that § 924(c)(3)(B) is unconstitutionally vague. See 28 U.S.C. § 2255(f)(3). The government further argued that, even if Mr. Autobee’s motion is timely, § 924(c)(3)(B) is not unconstitutionally vague after Johnson . And even if it is, the government asserted that armed bank robb ery is still a crime of violence under the elements clause. The district court agreed w ith the government and deni ed Mr. Autobee’s motion. The court first ruled that Mr. Autobee’s moti on is untimely because he filed it more than one year after the judgment of conviction became final and Johnson did not establish the right Mr. Autobee now asserts. But the cour t also ruled that ev en if his motion were deemed timely and the risk of force clause a ssumed to be invalid, Mr. Autobee could not prevail because armed bank robbery is a crime of violence under the elements clause. DISCUSSION II. Mr. Autobee now seeks a COA so he can app eal the district court’s ruling. Below, we first provide the legal standard governing the issuance of a COA. We then analyze the timeliness of Mr. Au tobee’s motion.4 A. Certificate of Appealability A prisoner challenging a district court’s denial of a 28 U.S.C. § 2255 motion must first obtain a COA as a jurisdictional prer equisite to proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B); see Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006) (“A COA is a jurisdictional pre-requisite to our review.” ). We will issue a COA “only if the applicant has made a substantial showing of the deni al of a constitutional right.” § 2253(c)(2). Where a district court denies a petition on procedural gr ounds—such as untimeliness— without reaching the merits of the underl ying constitutional clai ms, a prisoner must satisfy a two-part standard to obtain a COA. He must show “that jurists of reason would find it debatable whether the pe tition 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) (emphasis added). The prisoner must overcome both hurdles, as “[e]ach component . . . is part of a threshold inquiry.” Id. at 485. Instead of addressing the threshold requ irements in order, we may “resolve the issue whose answer is more appare nt from the record and arguments.” Id. Because we ordinarily “will not pass upon a constitutional que stion . . . if there is also present some other ground upon which the case may be dispos ed of,” we generally resolve procedural issues first. Id. (internal quotation marks omitted). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the di strict court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484. But if we find that5 reasonable jurists could debate the resolution of the procedural issues, we must then consider whether the prisoner’s motion states valid constitutional claims. In doing so, we “simply take a quick look at the face of th e [petition] to determine whether the petitioner has facially alleged the denial of a constitutional right.” Paredes v. Atherton , 224 F.3d 1160, 1161 (10th Cir. 2000) (internal quotation marks omitted). We are limited to “an overview of the claims in the habeas petition and a general assessment of their merits,” rather than “full consideration of the factua l or legal bases adduced in support of the claims.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003); see also Buck v. Davis , 137 S. Ct. 759, 773 (2017) (“When a court of appeals sidesteps the COA process by first deciding the merits of an ap peal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in esse nce deciding an appeal without jurisdiction.” (quoting Miller-El , 537 U.S. at 336–37)). Here, after carefully considering the district court’s order and the record on appeal, we conclude that Mr. Autobee is not entitled to a COA to challenge the district court’s denial of his § 2255 motion because reasona ble jurists could not debate whether the district court was correct in its procedural ruling. Accordingly, we deny Mr. Autobee’s request for a COA and dismiss his appe al for the reasons set forth below.
B. Timeliness of Mr. Autobee’s Motion Mr. Autobee would ordinarily have one year to file his § 2255 motion from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). That deadline has come and gone, as Mr. Autobee filed his motion almost ten years after his conviction became final. Mr. Autobee therefore relies on § 2255(f)(3), under which the6 one-year period runs from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Mr. Autobee filed his motion less than one year after the Court decided Johnson , so the issue is whether reasonable jurists could debate the district court’s conclusion that Johnson did not establish the right Mr. Autobee now asserts. Recall that the Court in Johnson invalidated the ACCA’s residual clause for being unconstitutionally vague. The residual clause de fines a “violent felony” as a felony that “involves conduct that presents a serious poten tial risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This provision is sim ilar, but not identical, to the risk of force clause in 18 U.S.C. § 924(c)(3 )(B), which defines a “crime of violence” as a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the c ourse of committing the offense.” Mr. Autobee argues that Johnson supplies the right assert ed because there is no meaningful distinction between the ACCA’s re sidual clause and the risk of force clause in § 924(c)(3)(B). In support, he cites Golicov v. Lynch , 837 F.3d 1065 (10th Cir. 2016).
In Golicov , we held that the risk of force clause in 18 U.S.C. § 16(b) is unconstitutionally vague under the princi ples announced in Johnson

. Id. at 1072. The risk of force clause in § 16(b) is identical to the risk of force clause in § 924(c)(3 )(B). Thus, it is reasonable to7 argue that we would simila rly extend the reasoning of Johnson to invalidate the risk of force clause in § 924(c)(3)(B). 2 But in determining the time liness of Mr. Autobee’s § 22 55 motion, the question is not whether a court of appeals has recognized the right at issue, but instead whether the Supreme Court itself has done so. See 28 U.S.C. § 2255(f)(3) (measuring the one-year filing deadline from “the date on which the right assert ed was initially recognized by the Supreme Court , if that right has been newly recognized by the Supreme Court . . .” (emphasis added)); E.J.R.E. v. United States , 453 F.3d 1094, 1098 (8 th Cir. 2006) (stating that “a decision taken from a federal court of appeals does not pr ovide an independent basis to trigger the one-year statute of limitations provided under [§ 2255(f)(3)]”). Accordingly, our extension of Johnson to § 16(b) is not determinative. Rather, the question is whether Mr. Autobe e asserts the same right announced in Johnson with a different application, or instead a new right that the Supreme Court has yet to recognize. A right is “new” if it is “not dictated by precedent.” Chaidez v. United
States , 133 S. Ct. 1103, 1107 (2013). And a right is “dictated” by precedent only if it is “apparent to all reasonable jurists.” Id. (internal quotation marks omitted). Therefore, Mr. Autobee’s motion is time-barred unless Johnson dictates, or compels, the invalidation of the risk of fo rce clause in § 924(c)(3)(B). Even if we were to conclude that the reasoning of Johnson should be extended to invalidate § 924(c)(3)(B)—which is not itself obvious even after holding that § 16(b) is

2 We specifically noted in Golicov v. Lynch , 837 F.3d 1065, 1 072 n.1 (10th Cir. 2016), that “[b]ecause § 924(c)(3)(B) is not implicated in this case, we offer no opinion on its constitutionality.”8 unconstitutional—it is far from “a pparent to all reasonable juri sts” that § 924(c)(3)(B) is unconstitutional under Johnson , as evidenced by the federal c ourts of appeals that have rejected vagueness challenges to § 924(c)(3)(B) predicated on Johnson

. See United States v. Prickett , 839 F.3d 697, 699–700 (8th Cir. 2016); United States v. Hill , 832 F.3d 135, 145–50 (2d Cir. 2016); United States v. Taylor , 814 F.3d 340, 375–79 (6 th Cir. 2016). As a result, Johnson does not dictate the right Mr. Autobee asserts, as he seeks an altogether new right the Supreme Court has yet to rec ognize. Because § 2255(f)(3) contemplates a new right recognized by the S upreme Court, rather than by a lower court, he may not avail himself of that provision. And no reasonab le jurist could debate the district court’s conclusion that Mr. Autobee’s motion is untimely because he filed it more than one year after the date his conviction became final. CONCLUSION III. For the reasons stated above, we conclude that reasonabl e jurists could not debate that the district court correctly denied Mr. Au tobee’s § 2255 motion as untimely. We thus deny Mr. Autobee’s request for a COA and dismiss this appeal in its entirety. Entered for the Court
Carolyn B. McHugh Circuit Judge