United States v. Neihart

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 21, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 17-2164 & 17-2192
(D.C. Nos. 1:16-CV-00708-WJ-CG &
ROBERT O’DELL NEIHART, 1:12-CR-02687-WJ-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
_________________________________
In these consolidated appeals, Robert O’Dell Neihart seeks a certificate of
appealability (COA) to challenge the denial of his 28 U.S.C. § 2255 motion and the
dismissal of his Fed. R. Civ. P. 60(b) motion. He also appeals the denial of his motion
for an indicative ruling under Fed. R. Civ. P. 62.1.1 We deny a COA to appeal the denial
of his § 2255 motion, construe the appeal from the dismissal of the Rule 60(b) motion as

This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
No. 17-2164 challenges the denial of the § 2255 motion. No. 17-2192 challenges
the denial of his motions under Rules 60(b) and 62.1. Although there are separate
records in each matter, for simplicity we cite the record in No. 17-2192.
a request for authorization to file a second or successive § 2255 motion, deny
authorization, and affirm the denial of the Rule 62.1 motion.
I
Mr. Neihart pleaded guilty to armed bank robbery, see 18 U.S.C. § 2113(a) & (d),
and using a firearm during a crime of violence, see id., § 924(c)(1)(A)(i)-(iii). As part of
his plea agreement, he agreed to waive certain appellate rights and any collateral
challenge to his conviction except claims of ineffective assistance of counsel in
negotiating or entering the plea or the waiver. The district court accepted the plea and
sentenced Mr. Neihart to 148 months in prison. He did not appeal.
On June 25, 2016, however, Mr. Neihart moved to vacate his sentence under
28 U.S.C. § 2255. He argued that his § 924(c) conviction was unlawful in light of 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.
§ 924(e)(2)(B)(ii), is unconstitutional). After a full round of briefing, a magistrate judge
determined that Mr. Neihart’s § 2255 motion should be dismissed because it was barred
by his postconviction waiver. Mr. Neihart objected pro se, arguing that the waiver was
unenforceable because his counsel rendered ineffective assistance by deceiving him into
accepting the plea agreement. The district court determined, however, that this
ineffective-assistance argument was waived because it was raised for the first time in
Mr. Neihart’s pro se objections. Moreover, the court determined on the merits that
§ 2255 relief was unavailable because armed bank robbery is a crime of violence. Thus,
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the district court denied the § 2255 motion. It did not grant a COA. Judgment entered on
August 28, 2017, and Mr. Neihart filed a pro se notice of appeal.
After entry of judgment the district court appointed Mr. Neihart new counsel, who
filed a Rule 60(b) motion “to allow reconsideration of his habeas petition,” R., Vol. 1 at
104 (capitalization omitted). The Rule 60(b) motion argued that Mr. Neihart’s prior
attorney was ineffective in negotiating the plea agreement, executing the postconviction
waiver, and failing to anticipate Johnson. It also challenged the district court’s
conclusion that armed bank robbery qualifies as a crime of violence.
Further, recognizing that Mr. Neihart had already filed his notice of appeal, his
new counsel sought in conjunction with the Rule 60(b) motion an indicative ruling under
Fed. R. Civ. P. 62.1(a). That provision allows the district court to indicate to the court of
appeals whether it would grant a Rule 60(b) or some similar motion during the pendency
of an appeal when the district court has been divested of jurisdiction. See 11 Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 2911 (3d ed.). It states:
If a timely motion is made for relief that the court lacks authority to grant
because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.
Fed. R. Civ. P. 62.1(a). Mr. Neihart asserted that jurisdiction had passed to this court by
the filing of the appeal, but he urged the district court to issue an indicative ruling that it
would grant Rule 60(b) relief upon remand from us.
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The district court denied the motion, ruling it had no jurisdiction to consider the
Rule 60(b) motion because Mr. Neihart’s notice of appeal transferred jurisdiction to this
court. Mr. Neihart appealed and now seeks a COA to challenge both the denial of his
§ 2255 motion and the denial of his Rule 60(b) motion.
II
A. Standards Governing the § 2255 Motion
To appeal the denial of his § 2255 motion, Mr. Neihart must obtain a COA.
See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a final order
denying relief under § 2255 unless the movant obtains a COA); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003) (COA is jurisdictional). To obtain a COA, Mr. Neihart
must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). We engage in “an overview of the claims in the [§ 2255 motion] and a
general assessment of their merits.” Miller-El, 537 U.S. at 336. “At the COA stage, the
only question is whether the applicant has shown that ‘jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El, 537 U.S. at 327).
“When the district court denies a habeas petition on procedural grounds . . . , 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 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). “Each component
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of [this] showing is part of a threshold inquiry, and a court may find that it can dispose of
the application in a fair and prompt manner if it proceeds first to resolve the issue whose
answer is more apparent from the record and arguments.” Id. at 485.
Here, the district court offered both procedural and substantive grounds for
denying the § 2255 motion. Procedurally, the court ruled that Mr. Neihart did not raise
an ineffective-assistance claim until his pro se objections and, as a consequence, that
theory was waived. This conclusion is not reasonably debatable because “[i]n this
circuit, theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001).
Substantively, the district court determined that his § 924(c) claim failed on the
merits because armed bank robbery is a crime of violence. Again, the district court’s
decision was not reasonably debatable. Under § 924(c), a “crime of violence” is defined
as a felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another” (the “elements clause”), 18 U.S.C.
§ 924(c)(3)(A), or “that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the
offense” (the “residual clause”), id. § 924(c)(3)(B). The residual clause of § 924(c)(3)(B)
is unconstitutionally vague. See United States v. Salas, 889 F.3d 681, 686 (10th Cir.
2018), petition for cert. filed (U.S. Oct. 3, 2018) (No. 18-428). But that still leaves the
elements clause. And we have held that under the elements clause of the definition of
“crime of violence” in the sentencing guidelines, U.S.S.G. § 4B1.2(a)(1) (which is
identical to the elements clause of § 924(c)(3)(A), except that it is a bit narrower in scope
5
because it omits the words “or property”), armed bank robbery is categorically a crime of
violence. See United States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018), petition for
cert. filed (U.S. Oct. 1, 2018) (No. 18-6257). Following McCranie, we have consistently
held that armed bank robbery is a crime of violence under the elements clause of
§ 924(c)(1)(A). See, e.g., United States v. Rinker, No. 18-1227, ___ F. App’x ___, 2018
WL 3996828, at *2-3 (10th Cir. Aug. 21, 2018) (unpublished); United States v. Hill,
No. 17-3124, ___ F. App’x ___, 2018 WL 3814915, at *2 (10th Cir. Aug. 9, 2018)
(unpublished); United States v. Smith, 730 F. App’x 710, 711 (10th Cir. 2018)
(unpublished), petition for cert. filed (U.S. Oct. 4, 2018) (No. 18-6237).2 The district
court’s decision is not reasonably debatable, and we deny a COA.
B. Standards Governing the Rule 60(b) Motion
Mr. Neihart also seeks a COA to appeal the denial of his Rule 60(b) motion. The
district court based its denial on the ground that jurisdiction had transferred to this court.
Rule 60(b) enables a movant to seek relief from a final judgment in certain
circumstances, including mistake, newly discovered evidence, or, as Mr. Neihart asserts
here, “any other reason that justifies relief.” After a movant files an initial § 2255
motion, the district court must analyze a Rule 60(b) motion as a second or successive
§ 2255 motion “if it in substance or effect asserts or reasserts a federal basis for relief
from the [movant’s] underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215
2
We may consider nonprecedential, unpublished decisions for their persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).
6
(10th Cir. 2006); see United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006)
(applying analysis to § 2255 motions). Courts do treat a Rule 60(b) motion as “a ‘true’
60(b) motion,” however, if it “challenges only a procedural ruling of the habeas court
which precluded a merits determination of the habeas application,” or if it “challenges a
defect in the integrity of the federal habeas proceeding, provided that [it] does not itself
lead inextricably to a merits-based attack on the disposition of the prior habeas petition.”
Spitznas, 464 F.3d at 1215-16 (citations and internal quotation marks omitted). When a
district court correctly construes the motion as a true Rule 60(b) motion and denies it, we
require a COA before considering the appeal. Id. at 1217-18. But a COA is not required
if the motion is properly construed as a second or successive § 2255 motion. Id. at 1218.
In that case we may, in our discretion, determine whether the movant is entitled to
authorization to file a second or successive § 2255 motion. Id. at 1219 & n.8.
Mr. Neihart’s Rule 60(b) motion was not a “true” 60(b) motion because, as
indicated by its title, it simply sought “reconsideration of his habeas petition,” R., Vol. 1
at 104 (capitalization omitted). The motion argued that Mr. Neihart’s prior counsel was
ineffective in negotiating the plea and postconviction waiver and failing to anticipate
Johnson. It also challenged the district court’s determination that armed bank robbery
was a crime of violence under § 924(c). Indeed, as we understand Mr. Neihart’s brief in
this court, the sole purpose of granting relief under Rule 60(b) would be to enable him to
reargue whether armed bank robbery is a crime of violence and obtain appropriate relief
if it is not. This is a prime example of a Rule 60(b) motion that should be treated as a
second or successive § 2255 motion. See Gonzales v. Crosby, 545 U.S. 524, 532 n.5
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(2005) (“[A]n attack based on the movant’s own conduct, or his habeas counsel’s
omissions, . . . ordinarily does not go to the integrity of the proceedings, but in effect asks
for a second chance to have the merits determined favorably.”); Spitznas, 464 F.3d at
1216 (providing as an example of a Rule 60(b) motion that should be treated as a second
or successive habeas petition a “motion seeking vindication of a habeas claim by
challenging the habeas court’s previous ruling on the merits of that claim” (brackets and
internal quotation marks omitted)). It follows, then, that the district court properly denied
the Rule 62.1 motion: given that the Rule 60(b) motion was an unauthorized second or
successive motion, “the district court [did] not even have jurisdiction to deny the relief
sought in the pleading,” Nelson, 465 F.3d at 1148.
The remaining question is whether Mr. Neihart can satisfy the statutory
requirements to file a second or successive § 2255 motion. Under § 2255(h) we will
authorize a second or successive § 2255 motion only if it contains (1) “newly discovered
evidence” or (2) “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” Mr. Neihart cannot
make either showing because his motion does not rely on new evidence and Johnson was
previously available to him, as demonstrated by his original § 2255 motion.
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III
We deny a COA, deny authorization to file a second or successive § 2255 motion,
affirm the denial of the Rule 62.1 motion, and dismiss these matters.3
Entered for the Court
Harris L Hartz
Circuit Judge
3
Judge Holmes declines to opine on whether reasonable jurists could debate the
district court’s substantive rationale for denying Mr. Neihart’s § 2255 motion. In Judge
Holmes’s view, it is neither necessary nor prudent to reach this issue. In all other
respects, Judge Holmes joins the instant order.
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