Nos. 5:16-CV-04095-SAC and 5:96-CR-40082-SAC-1) (D. Kan.)
PHILLIPS, MCKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Terrence L. O'Brien, United States Circuit Judge.
September 9 and October 21, 1996, Thomas W. Harris and his
cohort, Derrick Johnson, committed seven robberies-three in
the District of Kansas and four in the Western District of
Missouri. During the robberies, Harris was armed with a .357
caliber revolver. For this conduct, he was indicted in the
District of Kansas with three counts of Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a), (b)(1) (Counts 1, 3,
and 5) and three counts of use and carry of a firearm during
and in relation to a "crime of violence" in
violation of 18 U.S.C. § 924(c) (Counts 2, 4, and 6).
here, § 924(c) defines "crime of violence" as
any felony offense having "as an element the use,
attempted use, or threatened use of physical force against
the person or property of another" (elements clause). 18
U.S.C. § 924(c)(3)(A). The "crime[s] of
violence" referred to in the § 924(c) counts
(Counts 2, 4, and 8) were the Hobbs Act robberies charged in
Counts 1, 5, and 7, respectively. The Hobbs Act robbery
statute, 18 U.S.C. § 1951(a), (b)(1), prohibits one from
"obstruct[ing], delay[ing] or affect[ing] commerce or
the movement of any article or commodity in commerce, by
robbery . . . ." 18 U.S.C. § 1951(a). It defines
robbery as "the unlawful taking or obtaining of personal
property from the person or in the presence of another,
against his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his
person or property . . . ." 18 U.S.C. § 1951(b)(1).
pled guilty to Counts 1-5. In exchange for his guilty plea,
the government agreed to dismiss Count 6 and to not file
charges in the Western District of Missouri for the four
robberies committed there. The district judge sentenced
Harris to a total term of 360 months imprisonment. We
affirmed on direct appeal. See United States v.
Harris, 185 F.3d 875 (10th Cir. 1999) (unpublished).
filed a 28 U.S.C. § 2255 motion arguing his Hobbs Act
robbery convictions were not "crime[s] of violence"
under § 924(c)(3)'s elements clause. The district
judge saw it differently. He also denied a certificate of
appealability (COA) so Harris renews his request with this
Court. We restrict our analysis to the arguments he raises in
his COA application.
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To
obtain one, Harris must make "a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). He must establish that "reasonable jurists
could debate whether . . . the petition should have been
resolved [by the district court] in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation marks
omitted). He has not met his burden.
United States v. Melgar-Cabrera, we decided Hobbs
Act robbery is categorically a "crime of violence"
under § 924(c)(3)'s elements clause. 892 F.3d 1053,
1060-66 (10th Cir. 2018); see also United States v.
Jefferson, 911 F.3d 1290, 1296-99 (10th Cir. 2018).
Harris concedes Melgar-Cabrera precludes relief but
suggests the Supreme Court's grant of certiorari review
in Stokeling v. United States, 138 S.Ct. 1438, 86
U.S.L.W. 3492 (Apr. 2, 2018) (No. 17-5554), renders
Melgar-Cabrera debatable and provides encouragement
for his arguments to proceed further. It does not. The
Supreme Court recently decided Stokeling but not in
Harris's favor. See Stokeling v. United States,
___ S.Ct. ___, 2019 WL 189343 (Jan. 15, 2019).
Court concluded Florida's robbery statute, which requires
the use of force sufficient to overcome the victim's
resistance, satisfies the ACCA's elements clause.
Id. at *2. In doing so, it decided the term
"physical force" in that clause "encompasses
the degree of force necessary to commit common-law
robbery." Id. at *9. It also reaffirmed that
"physical force" in the ACCA's elements clause
means "force capable of causing physical pain or
injury," and includes "force as small as
'hitting, slapping, shoving, grabbing, pinching, biting,
and hair pulling'" because "'all of them
are capable of causing physical pain or injury.'"
Id. at *8 (quoting Johnson v. United States
(Johnson I), 559 U.S. 133, 140 (2010), and
United States v. Castleman, 572 U.S. 157, 174, 182
(2014) (Scalia, J., concurring)). It declined to require
"severe," "extreme," "furious"
or "vehement" force or "any particular degree
of likelihood or probability that the force used will cause
physical pain or injury; only potentiality."
Id. at *7-8. (quotation marks omitted).
did not overrule or call into doubt Melgar-Cabrera;
rather, it supports it. See Stokeling, 2019 WL
189343, at *9 (concluding "physical force" in the
elements clause "encompasses the degree of force
necessary to commit common-law robbery"
(emphasis added)); Melgar-Cabrera, 892 F.3d at 1064
(defining Hobbs Act robbery as "common-law
robbery that affects interstate commerce" (emphasis
added)). Nor have we revisited Melgar-Cabrera in an
en banc decision. As a result, it remains the law of this
Circuit. See United States v. Springer, 875 F.3d
968, 975 (10th Cir. 2017) (under the "principles of
horizontal stare decisis," we are bound by published
opinions of prior panels "absent en banc reconsideration
or a superseding contrary decision by the Supreme Court"
(quotation marks omitted)).
the judge's decision that Hobbs Act robbery is
categorically a "crime of violence" under §
924(c)(3)'s elements clause is not reasonably debatable,
we DENY a COA and DISMISS
this putative appeal.