United States v. Autobee, 701 F. App'x 710

George Autobee pleaded guilty to two counts of using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c); the predicate offense was armed bank robbery. He was sentenced in 2006 to a total of 300 months and did not appeal.
In June 2016 Autobee filed a § 2255 motion relying on Johnson v. United States, arguing that § 924(c)(3)(B)’s “risk of force” clause is unconstitutionally vague like the ACCA residual clause.
Autobee asserted armed bank robbery is not a “crime of violence” under the elements clause (§ 924(c)(3)(A)), so his conviction depended on the risk clause (§ 924(c)(3)(B)).
The government argued the § 2255 motion was time-barred under the one-year limitation, and that Johnson did not establish the right Autobee asserted because Johnson addressed the ACCA clause, not § 924(c)(3)(B).
The district court denied relief as untimely under § 2255(f)(1)/(3) and alternatively held that even if the risk clause were invalid, armed bank robbery still qualifies under the elements clause.
The Tenth Circuit denied a certificate of appealability, holding reasonable jurists could not debate the district court’s procedural ruling that Johnson did not supply the new Supreme Court right needed to trigger § 2255(f)(3).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under 28 U.S.C. § 2255(f)(3)	Autobee: Johnson created a new, retroactive right invalidating § 924(c)(3)(B), so his 2016 § 2255 is timely.	Gov: Johnson applied to ACCA residual clause only; Supreme Court has not recognized the right for § 924(c)(3)(B), so § 2255(f)(3) does not apply.	Denied COA — Johnson did not ‘‘initially recognize’’ the right for § 924(c)(3)(B); motion is time-barred.
Crime-of-violence classification	Autobee: armed bank robbery does not satisfy the elements clause (§ 924(c)(3)(A)), so conviction depended on the invalid risk clause.	Gov: even if risk clause were invalid, armed bank robbery qualifies under the elements clause.	District court alternative holding: armed bank robbery is a crime of violence under the elements clause (court did not need to reach merits due to timeliness).

Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Welch v. United States, 578 U.S. _ (2016) (made Johnson retroactive on collateral review)
Slack v. McDaniel, 529 U.S. 473 (2000) (COA standards when petition denied on procedural grounds)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (new rights are those not dictated by precedent)
Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016) (held § 16(b) risk-of-force clause unconstitutionally vague under Johnson)
United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (rejected vagueness challenge to § 924(c)(3)(B) post-Johnson)