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         This order is not binding precedent except under the doctrines of law of the case,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 

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, 

(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,



                                              2
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.




                                               3
       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,

, 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.” 

. “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, 

, 773 (2017) (quoting 

).

“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, 

, 484 (2000). “Each component

                                               4
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.” 

       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, 

, 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”), 

The residual clause of § 924(c)(3)(B)

is unconstitutionally vague. See United States v. Salas, 

, 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, 

, 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 ___, 

, at *2-3 (10th Cir. Aug. 21, 2018) (unpublished); United States v. Hill,

No. 17-3124, ___ F. App’x ___, 

, 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, 

, 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, 

, 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.”

(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. 

But a COA is not required

if the motion is properly construed as a second or successive § 2255 motion. 

In that case we may, in our discretion, determine whether the movant is entitled to

authorization to file a second or successive § 2255 motion. 

& 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, 

, 532 n.5

                                              7
(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.”); 

(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,” 

.

       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.




                                               8
                                            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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