UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 17-3124 (D.C. Nos. 2:16-CV-02465-CM & 2:11-CR-20090-CM-1) (D. Kan.) v. DALE K. HILL, Defendan t - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.

Petitioner Dale Hill, a federal prisoner, seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. §2255 ha beas petition. Petitioner argues that his convi ction under 18 U.S.C. § 924(c)— based on his armed bank robbery as the predic ate crime of violence—is uncons titutional in light of Johnson v. United States , 135 S. Ct. 2551 (2015). In 2012, Petitioner pled guilty t o one count of a rmed bank rob bery under 18 U.S.C. §§ 2113(a) and (d), and one count of using a firearm dur ing and in relation to a

* This order is not b inding precedent, exc ept under the doctrine s of law of the case, res judicata, and coll ateral estoppel. It may be cit ed, however, for its persuasive value consistent wi th Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 9, 2018
Elisabeth A. Shumaker Clerk of Court2 crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). He was s entenced to seventy-seven months for the armed bank robber y and eighty-four months for us ing a firearm during a crime of violence, to be serve d consecutively. In relevant par t, § 924(c)(1)(A) provides that: [A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, u ses or carries a firearm, or who, in furtherance of any such crime, possess a fi rearm, shall, in addition to the punishment provi ded for such crime of violence

. . . (ii) if the firearm is brandish ed, be sentenced to a term of im prisonment of not less than 7 years . . . . § 924(c)(1)(A) (emphasis added). U nder this section, a “crime of violence” refers to a felony offense that “(A) has as an element the use, attempted u se, or threatened use of physical force against the pers on or property of another [eleme nts or use of force clause], or (B) that by its nature, involve s a substantial risk that phy sical force against the person or property of anoth er may be used in the course of committing the offense [residual clause].” 18 U.S.C. § 924(c)(3 ). Petitioner did not directly appeal his conviction or

sentence. In his petition, Petitioner argues that his armed bank robbery could only have been considered a crime of violence under § 924(c)(3)’s residual cla use, which he contends is unconstitutionally vague under Johnson

. Johnson invalidated the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which contains s imilar language to § 924(c)(3)(B), defining a “viole nt felony” as a crime that “invo lves conduct that presents a serious potential risk of physica l injury to another.” 18 U.S. C. § 924(e)(2)(B)(ii). Johnson ’s3 holding was made retroactive fo r all cases on collateral review

. See Welch v. United States , 136 S. Ct. 1257, 1265 (2016); see also 28 U.S.C. § 2255(f)(3). Petitioner filed a pro se § 225 5 petition to vacate his senten ce within one year of
Johnson . The district court denied the petition on the grounds that P etitioner’s plea agreement “waived the right to ch allenge his sentence in a coll ateral attack under § 2255.” (R. at 107.) Relying on United States v. Frazier-LeFear , 665 F. App’x 727, 729 (10th Cir. 2016), the district c ourt reasoned that enforcing th e waiver would not result in a “miscarriage of justice,” becau se Petitioner’s claim “is a ch allenge to the lawfulness of his sentence, not to the lawfulness of his waiver.” (R. at 107 .) On appeal, Petitioner argues that the district court’s analysis is no longer valid be cause Frazier-LeFear has been substantially overruled by t he Supreme Court’s recent deci sion in Class v. United
States , 138 S. Ct. 798, 803 (2018), in which the Court held that a gu ilty plea by itself does not “ba[r] a federal crimin al defendant from challenging t he constitutionality of the statute of conviction on direct appeal.” “When the district court deni es a habeas petition on procedura l grounds without reaching the prisoner’s underly ing 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 den ial of a constitutional right an d that jurists of reason would find it debatable whether the dis trict court was correct in its procedural ruling.” Slack v.
McDaniel , 529 U.S. 473, 484 ( 2000). “Each compone nt of [this] showing is part of a threshold inquiry, and a court ma y find that it can dispose of the application in a fair and4 prompt manner if it proceeds firs t to resolve the issue whose a nswer is more apparent from the record and arguments.” Id. In this case, we find it easies t to first resolve the question of whether Petitioner has shown a valid claim of the deni al of a constitutional right bas ed on the use of his § 2113 bank robbery conviction as the p redicate crime of violence for his conviction under § 924(c). In a recent precedential op inion, we held that a § 211 3 bank robbery conviction is categorically a c rime of violence. United States v. McCranie , 889 F.3d 677, 679-681 (10th Cir. 2018). In so doing, we rejected the same arguments that Petitioner wishes to raise in this appeal, such as his argument that bank robbery do es not have the use of force as an element because it can be satisfied through intimidation. See id. at 680-81 (“[E]very definition of intimida tion requires a purposeful act that instills objectively reasonable fear (or expectation ) of force or bodily injury. . . . [I]ntimidation thus qualifies as a threatened use of physical force against the person of ano ther.”). Moreover, Petitioner has not met h is burden of p roving that his convictio n and sentence were based on the now-invalid residual clause rather than the valid elemen ts clause of § 924(c)(3)(A). See United States v. Washington , 890 F.3d 891, 896 (10th Cir. 2018). Because we conclude that Petitioner’s habeas claim must necessa rily fail on the merits, we will deny COA on this b asis without addressing the c orrectness of the district court’s procedural reasons for dis missing his habeas petition. See Slack , 529 U.S. at 485.5 We DENY Petitioner’s request for a certi ficate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge