FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5086
(D.C. Nos. 4:16-CV-00327-CVE-TLW and
BILLY JOE HILL, 4:03-CR-00071-CVE-1)
(N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
_________________________________
Billy Joe Hill seeks a certificate of appealability (“COA”) to challenge the
district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss
the appeal.
I
Hill was convicted of being a felon in possession of a firearm and making a
false statement during the purchase of a firearm. Following the application of a
sentencing enhancement under the Armed Career Criminal Act (“ACCA”), the
district court sentenced him to 212 months incarceration. 18 U.S.C. § 924(e). We
*
This order is not binding precedent, except under the doctrines of law of the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.
affirmed his convictions and sentence on direct appeal. Hill filed a § 2255 motion,
which the district court denied. We rejected his request for a COA.
After the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015), Hill sought and was granted authorization from this court to file a
second § 2255 motion. In the district court, Hill presented a Johnson challenge to his
sentence. He then filed a petition for writ of mandamus in this court, requesting that
we order the district court to rule on his pending § 2255 motion. On May 15, 2017,
before we addressed that petition, the district court denied Hill’s § 2255 motion. It
also denied a COA.
Hill filed two motions in the mandamus case on June 19, 2017. The following
day, we entered an order construing the first of his two filings as a motion to
voluntarily dismiss the mandamus petition, and granted it. In the same order, we
denied the second motion, which was styled as a motion of intent to appeal, stating
that a notice of appeal must be filed in the district court. Hill did so on August 21,
2017.
II
Hill did not file a timely notice of appeal in the district court. He had sixty
days from the entry of judgment on May 15, 2017 to do so. 28 U.S.C. § 2107(b);
Fed. R. App. P. 4(a)(1)(B); United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir.
1993). Hill’s notice was filed thirty six days late. However, Hill contends that he
believed he had properly filed a notice on June 19, 2017—within the sixty day
period—when he submitted a “Motion to File a Motion to Intent to Appeal” to us in
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the mandamus case. We hold that his June 19 motion constitutes a mistaken filing in
the court of appeals under Fed. R. App. R. 4(d) and therefore serves as a timely
notice of appeal.
Rule 4(d) states that if a notice of appeal is mistakenly filed in the court of
appeals instead of the district court, the clerk of the court of appeals must note the
date the notice was received and send the notice to the district court. Fed. R. App. P.
4(d). The notice is then considered filed on the day that the court of appeals received
it. Id. Hill’s case is complicated by the fact that his filing was captioned with the
case number of his mandamus petition. We must decide whether Rule 4(d) applies in
these circumstances.
There is very little existing discussion of Rule 4(d), either in the commentary
to the Federal Rules of Appellate Procedure or in case law. However, Rule 4(d) is
facially a fail-safe provision. It ensures that individuals who file a notice of appeal in
the wrong court, thus providing notice despite the procedural defect, are not barred
from pursuing an appeal. Fed. R. App. P. 4(d); see also Samantha Lewis, Comment,
Notice and the Claim Presentation Requirements under the California Government
Claims Act: Recalibrating the Scales of Justice, 53 San Diego L. Rev. 701, 716 n.84
(2016) (discussing the purpose of Rule (4)(d)). Hill’s filing clearly gave us notice of
his intent to appeal but was procedurally insufficient. Under the logic of Rule 4(d),
we consider his notice of appeal filed as of the date the clerk of our court received it
and thus timely.
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III
Hill may not appeal the district court’s denial of his § 2255 motion without a
COA. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). A COA
may only be issued “if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). To make such a showing, Hill must demonstrate
that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved 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) (quotations omitted).
Hill was convicted of being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1), which carries a maximum punishment of ten years imprisonment.
§§ 922(g)(1), 924(a)(2). If a defendant has three or more prior convictions that
qualify as violent felonies or serious drug offenses, he is subject to a mandatory
minimum sentence of fifteen years and a maximum sentence of life imprisonment.
§ 924(c)(5)(A). The ACCA defines violent felony in part as “any crime punishable
by imprisonment for a term exceeding one year, . . . that—(i) has as an element the
use, attempted use, or threatened use of physical force against the person of another.”
§ 924(e)(2)(B). This section of the ACCA is known as the elements clause and was
left untouched by Johnson. Welch v. United States, 136 S. Ct. 1257, 1261 (2016).
To determine whether a prior offense is a crime of violence, we apply either
the categorical approach or the modified categorical approach. Descamps v. United
States, 133 S. Ct. 2276, 2279 (2013). If the statute contains a single set of elements,
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we look to the elements of the statute and not to the facts of the individual crime. Id.
If the statute of conviction is divisible—that is, if it “lists multiple, alternative
elements, and so effectively creates several different crimes”—we apply the modified
categorical approach. United States v. Taylor, 843 F.3d 1215, 1220 (10th Cir. 2016).
We review a limited set of materials, including the charging document, to determine
which elements applied to the defendant’s particular conviction. Id.
Hill was convicted of assault and battery with a dangerous weapon under Okla.
Stat. tit. 21, § 645. As elucidated in United States v. Michell, 653 F. App’x. 639
(10th Cir. 2016), this statute is divisible, criminalizing “assault, battery, or assault
and battery with a sharp or dangerous weapon” and “shooting at another with a gun
or similar means.” Id. at 643 (quotations and brackets omitted). The charging
document in Hill’s case states that he committed “an assault and battery on one
George Lindley with a certain dangerous weapon.” This crime requires proof of the
use, threatened use, or attempted use of physical force, and is therefore a violent
felony under the elements clause of the ACCA. See Mitchell, 653 F. App’x at 644-
45.
Hill also has two convictions for robbery with a firearm under Okla. Stat. tit.
21, § 801. Oklahoma defines robbery as a “wrongful taking of personal property in
the possession of another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.” Okla. Stat. tit. 21, § 791. A
defendant is subject to an increased penalty if he “with the use of any firearms or any
other dangerous weapon . . . robs or attempts to rob any place of business, residence
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or banking institution or any other place inhabited or attended by any person or
persons.” Okla. Stat. tit. 21 § 801. The elements of robbery with a dangerous
weapon under § 801 include the wrongful taking of property from another “by
force/fear” using a dangerous weapon. Primeaux v. State, 88 P.3d 893, 906 (Okla.
Crim. App. 2004). A conviction under § 801 therefore required proof of the use,
threatened use, or attempted use of physical force.
III
No reasonable jurist could debate that Hill’s three previous felonies qualify as
violent felonies under the elements clause of the ACCA. We DENY Hill’s request
for a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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