Nos. 1:16-CV-01305-MSK and 1:08-CR-00046-MSK-1) (D. Colo.)
MATHESON, KELLY, and MURPHY, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy Circuit Judge.
matter is before the court on Alonzo Victorio's counseled
request for a certificate of appealability ("COA").
Victorio seeks a COA so he can appeal the district
court's denial of his 28 U.S.C. § 2255 motion. 28
U.S.C. § 2253(c)(1)(B). Because Victorio has not
"made a substantial showing of the denial of a
constitutional right, " id. § 2253(c)(2),
this court denies his request for a COA and
dismisses this appeal.
pleaded guilty to two counts of armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d), and one count of
being a prohibited person in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g) and 924.
Thereafter, Victorio filed the instant § 2255 motion,
asserting an entitlement to relief under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) (holding that the residual clause of
the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§§ 922(g), 924(a)(2), and 924(e)(1), is
unconstitutionally vague). The district court denied
Victorio's § 2255 motion, concluding Victorio's
sentence for being a prohibited person in possession of a
firearm was not imposed under the terms of the ACCA.
seeks a COA so he can appeal the district court's
determination that his sentence was not enhanced by reference
to the ACCA. In his request for a COA, however, Victorio
candidly and correctly concedes that even if his sentence was
enhanced by reference to the ACCA, he is still precluded from
obtaining § 2255 relief by this court's decision in
United States v. Harris, 844 F.3d 1260, 1270 (10th
Cir. 2017) (holding that "robbery in Colorado is a
violent felony under the ACCA's elements clause in §
924(e)(2)(B)(i)"). That is, Victorio admits he has three
predicate felonies for Colorado aggravated robbery. Although
he recognizes the relief he seeks is precluded by the
decision in Harris, he noted in his request for a
COA that a petition for a writ of certiorari was pending
before the Supreme Court in Harris. Accordingly, on
November 17, 2017, this court abated this matter pending the
Supreme Court's resolution of the petition for certiorari
April 2, 2018, the Supreme Court denied certiorari in
Harris. Harris v. United States, No.
16-8616, 2018 WL 1568033 (April 2, 2018). Accordingly, we
lift the abatement previously entered by the court in this
case. Furthermore, given Victorio's entirely
appropriate concession that Harris precludes him
from obtaining relief, this court DENIES his
request for a COA and DISMISSES this appeal.
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(holding that the granting of a COA is a jurisdictional
prerequisite to an appeal from the denial of a § 2255
FOR THE COURT
In a status report filed with this
court on April 4, 2018, Victorio recognizes that the Supreme
Court denied certiorari in Harris, but asks that we
continue to abate this case pending the decision of the
Supreme Court in United States v. Stokeling, 684
Fed.Appx. 870 (11th Cir. 2017), cert. granted sub nom
Stokeling v. United States, No. 17-5554, 2018 WL 1568030
(April 2, 2018). We DENY Victorio's
request to abate this case pending a decision in
Stokeling, a decision which might not come until
June of 2019. Notably, in Harris, this court held
that to qualify as a violent felony under the ACCA, a
substantial degree of force was necessary (i.e., that
"mere touching" did not suffice). 844 F.3d at 1265.
Harris went on to hold that Colorado robbery,
consistent with the ACCA requirement, required a
"violent" taking. Id. at 1266-68 &
n.4. In Stokeling, on the other hand, the question
upon which certiorari was granted is as follows:
Is a state robbery offense that includes "as an
element" the common law requirement of overcoming
"victim resistance" categorically a "violent
felony" under the [elements clause of the ACCA], if the
offense has been specifically interpreted by state appellate
courts to require only slight force to overcome
Given that Harris definitively interpreted
Colorado state case law as to robbery as requiring more than
de minimis force, the decision in Stokeling, which
deals with only the "slight" force necessary to
commit Florida robbery, is highly ...