Opinion
23-5070
09-13-2023
In re: RUDOLPHO COYAZO, JR., Movant.
(D.C. Nos. 4:23-CV-00240-GKF-CDL & 4:98-CR-00043-GKF-1) (N.D. Okla.)
Before HARTZ, PHILLIPS, and ROSSMAN, Circuit Judges.
ORDER
Rudolpho Coyazo, Jr., a federal prisoner proceeding pro se, seeks authorization to file a second or successive habeas application under 28 U.S.C. § 2255. Because he has not met the requirements for authorization under § 2255(h), we deny authorization.
Background
In 1998, a jury found Mr. Coyazo guilty of ten counts of Hobbs Act robbery; four counts of using or carrying a firearm during and in relation to a crime of violence or possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c); and escape from custody. The district court sentenced him to 948 months in prison.
Mr. Coyazo filed his first § 2255 motion in 2001. As pertinent here, he claimed the evidence was insufficient to support his robbery convictions. The district court denied relief. This court granted a certificate of appealability (COA), agreed that the evidence was insufficient to support the robbery charges but concluded it was sufficient to support convictions for the lesser-included offense of attempted robbery, and remanded the case with instructions to vacate the robbery convictions and enter an amended judgment reflecting the attempted Hobbs Act robbery convictions. See United States v. Coyazo, 95 Fed.Appx. 261, 267-68 (10th Cir. 2004). The amendment did not change Mr. Coyazo's sentence.
In 2016, this court authorized Mr. Coyazo to file a second or successive § 2255 motion challenging his § 924(c) convictions under United States v. Davis, 139 S.Ct. 2319 (2019). The district court dismissed the authorized motion and denied a COA.
In 2020, Mr. Coyazo filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The district court reduced the sentences imposed for the § 924(c) convictions, resulting in a new aggregate sentence of 540 months. See United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (upholding reduction of stacked § 924(c) sentence based in part on First Step Act's elimination of § 924's sentencestacking provision).
Then, in 2023, Mr. Coyazo filed a § 2255 motion in district court. The district court determined that his motion was a second or successive habeas application subject to the requirements of 28 U.S.C. § 2244(a) and (b). Because these requirements had not been met, and because it determined that it would best serve the interests of justice, see In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008), the district court transferred the § 2255 motion to this court.
The district court correctly recognized that the amended judgment entered after the court granted Mr. Coyazo's motion for sentence reduction did not constitute a new, intervening judgment for purposes of determining whether his subsequent § 2255 motion is second or successive. See United States v. Quary, 881 F.3d 820, 822 (10th Cir. 2018) (per curiam) (distinguishing sentence reductions from resentencings and holding that "the former do not qualify as new, intervening judgments" under Magwood v. Patterson, 561 U.S. 320 (2010)).
Mr. Coyazo then filed a motion for authorization to file a second or successive habeas application pursuant to 28 U.S.C. § 2244(b)(3)(A).
We grant Mr. Coyazo's motions for extensions of time and his motion to substitute his August 25, 2023 motion for authorization for the one he filed on August 14, 2023. All references in this order to his motion for authorization are to the August 25 motion.
Discussion
Mr. Coyazo seeks authorization so he can file a § 2255 motion challenging his § 924(c) convictions under United States v. Taylor, 142 S.Ct. 2015 (2022), in which the Supreme Court held that attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause in § 924(c)(3)(A). See id. at 2020-21. As relevant here, to obtain authorization, Mr. Coyazo must show that his proposed claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2). He must make a prima facie showing that he can satisfy this requirement. See id. § 2244(b)(3)(C); see also Case v. Hatch, 731 F.3d 1015, 1027 (10th Cir. 2013).
Mr. Coyazo has not made the required showing. First, he has not identified what new rule of constitutional law Taylor announced. He states that Taylor held that "attempted Hobbs Act robbery is not a crime of violence under the 'element clause' under [§] 924(c)'s definition," Am. Mot. for Auth. at 8, and he declares that Taylor "provides the promise that if the predicate offense listed in the indictment is attempted Hobbs Act robbery, it is no longer a crime of violence," id. at 16. But he has not explained why this is a constitutional rule.
Second, Mr. Coyazo has not satisfied § 2255(h)(2)'s retroactivity requirement. "Under § 2255(h)(2), the Supreme Court is the only entity that can make a new rule retroactive." In re Gieswein, 802 F.3d 1143, 1146 (10th Cir. 2015) (per curiam) (internal quotation marks omitted). The Court makes a rule retroactively applicable through a holding to that effect or through a combination of holdings that necessarily dictate retroactivity of a new rule. See Tyler v. Cain, 533 U.S. 656, 663, 666 (2001). Mr. Coyazo points to no Supreme Court holding or combination of holdings making Taylor retroactive to cases on collateral review, and we are not aware of any.
Because Mr. Coyazo has not met the requirements of § 2255(h)(2), we deny his motion for authorization. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).