UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN ANTONIO COLLAZO, Defendant - Appellant. No. 16-5094 (D.C. Nos. 4:16-C V-00264-GKF-FHM and 4:11-CR-00117-GKF-1) (N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before GORSUCH , BALDOCK, and McHUGH , Circuit Judges.

Juan Antonio Collazo challenges the district cour t’s orders denying his motion under 28 U.S.C. § 2255 and denying a certificate of appeal ability (COA) under 28 U.S.C. § 2253(c)(1)(B). He also requests leave to proceed in forma pauperis (IFP) on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253 (a), we deny Mr. Collazo’s request for a COA and his mo tion to proceed IFP. We therefore dismiss the appeal. BACKGROUND I. On August 1, 2011, a grand jury returned an indictment chargi ng Mr. Collazo with one count of possessing a firearm as a convi cted felon, in violation of 18 U.S.C.

* 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 Appellate Procedure 32.1 and 10t h Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 29, 2016
Elisabeth A. Shumaker Clerk of Court2 §§ 922(g)(1) and 9 24(e)(1). Mr. Collazo pl ed guilty and was sent enced to 180 months’ imprisonment. On May 9, 2016, Mr. Collazo filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Because Mr. Collazo was sentenced under the Armed Career Criminal Act (ACCA) and because the S upreme Court held the residual clause of the ACCA unconstitu tionally vague in Johnson v. United States , 135 S. Ct. 2551 (2015), Mr. Collazo argued he should be resentenced. On June 1, 2016, the district court concluded Mr. Collazo’s sentence was not ba sed on the ACCA’s residual clause; it was based on his four prior convictions for “seriou s drug offense[s].” Acco rdingly, the district court concluded Mr. Collazo “is not entitled to relief under Johnson ” and denied his motion. The district court also denied Mr. Collazo’s request for a COA and denied Mr. Collazo’s request to proceed IFP on appeal. Mr. Collazo timel y filed a notice of appeal on June 17, 2016. ANALYSIS II. A prisoner challenging a dist rict court’s denial of ha beas corpus relief under 28 U.S.C. § 2255 must obtain a COA as a jurisdictional prerequi site to pro ceed with an appeal. 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The petition er must demonstrate that reasonable jurists would find th e district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Because Mr. Collazo has failed to make the requi red showing here, we deny his application for a COA.3 Mr. Collazo first reasserts that hi s sentence must be reduced under Johnson v. United States , 135 S. Ct. 2551 (2015). But, in Johnson , the Supreme Court held the residual clause of the ACCA was unconstitutionally vague, id. at 2563, and Mr. Collazo was not sentenced under the ACCA’s residua l clause. Mr. Collazo qualified for an enhanced sentence under a separate provision of the ACCA because he had four prior convictions for “seri ous drug offense[s].” See 18 U.S.C. § 924(e)(1). We have previously concluded Johnson “is not pertinent” to such cases. United States v. Turner , 624 F. App’x 624, 626 (10th Cir. 2015) (u npublished). Similarly here, Johnson does not provide a basis to reduce Mr. Collazo’s sentence. As an alternative to his argument under Johnson , Mr. Collazo maintains the district court at sentencing “misidentified the nature of the prior predicate convictions.” In particular, Mr. Collazo argues the prior co nvictions used for AC CA purposes were not based on separate events and therefore coul d not provide the requisite number of prior convictions under § 924(e)(1). Even if we ac cept this argument and assume the district court incorrectly treated Mr. Co llazo’s prior convictions as separate events, Mr. Collazo may not raise this argument now. The distri ct court entered final judgment in Mr. Collazo’s criminal case on Ap ril 12, 2012. Mr. Collazo had one year from that date to assert a habeas challenge to his sentence. 28 U.S.C. § 2255(f). He did not do so. Mr. Collazo filed the present case under § 2255(f)(3), which allows a prisoner to file a habeas application within one year of “the date on which the right asserted was initially recognized by the Supreme Cour t, if that right has been newly recognized by the Supreme Court and made retroactively applicab le to cases on collateral review.” But this4 provision permits only Mr. Collazo’s claim under Johnson . And Johnson does not affect the separateness of Mr. Collazo’s prio r convictions. Mr. Collazo may not use Johnson as a license to raise all possible challenges to hi s sentence that could ha ve been raised in an earlier § 2255 application. Acco rdingly, Mr. Collazo’s separat eness claim is time-barred. Finally, Mr. Collazo seeks permission to proceed IFP on app eal. To succeed on such a motion, “an appellant must show a financial inability to pay the required filing fees.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Ci r. 1991) (citing 28 U.S.C. § 1915(a)). Here, Mr. Collazo concedes he has approximately $1,5 00.00 in his prison account. The district court concluded that “[w ]ith this balance, . . . [Mr. Collazo] has sufficient funds to afford the filing of an appeal.” We agree and thus deny Mr. Collazo’s motion. CONCLUSION III. Because reasonable jurists would not find the district court’s assessment of Mr. Collazo’s claims debatable or wrong, we deny Mr. Collazo ’s request for a COA and his motion to proceed IFP on appeal, and we DISMISS this matter. Entered for the Court
Carolyn B. McHugh Circuit Judge