March 22, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Kenneth Rayford

FILED
United States Court of Appeals
Tenth Circuit
March 22, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RAYFORD,
Defendant - Appellant.
No. 20-3221
(D.C. Nos. 2:20-CV-02314-JWL &
2:09-CR-20143-JWL-1)
(D. Kan.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
Defendant-Appellant Kenneth. Rayford pleaded guilty to attempted bank
robbery, in violation of 18 U.S.C. § 2113(a), and carrying and using a firearm
during and in relation to the attempted bank robbery, in violation of 18 U.S.C.
§ 924(c). After the Supreme Court decided United States v. Davis, 139 S. Ct.
2319 (2019), Rayford obtained permission from this court to file a successive
motion pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his
sentence. Rayford’s successive motion challenges only his § 924(c) conviction.
The district court denied the motion and declined to issue a certificate of
appealability (“COA”). Rayford is before this court seeking a COA so he can
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appeal the district court’s disposition of his motion. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255
motion unless he first obtains a COA).
In Davis, the Supreme Court addressed the constitutionality of 18 U.S.C.
§ 924(c), which authorizes heightened criminal penalties for using, carrying, or
possessing a firearm in connection with any federal “crime of violence.” The
Court held that § 924(c)(3)(B), known as the residual clause, is unconstitutionally
vague and cannot support a conviction under § 924(c)(1)(A). Davis, 139 S. Ct. at
2336. The Court’s ruling, however, did not affect § 924(c)(3)(A), known as the
elements clause. Accordingly, after Davis, Rayford’s § 924(c) conviction can
only be upheld if the predicate offense of attempted bank robbery has “as an
element the use, attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C. § 924(c)(3)(A).
The district court denied Rayford’s § 2255 motion, beginning its analysis
by noting this court has held that § 2113(a) federal bank robbery meets the
definition of crime of violence. United States v. Melgar-Cabrera, 892 F.3d 1053.
1064-65 (10th Cir. 2018) (holding that Hobbs Act robbery is categorically a crime
of violence under the elements clause of § 924(c)(3)(A)); see also United States v.
Toki, 822 F. App’x 848, 853 (10th Cir. 2020) (unpublished disposition cited only
for persuasive value) (holding that given our “binding precedent in
Melgar-Cabrera, the constitutionality of . . . § 924(c) convictions predicated on
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Hobbs Act robbery is not reasonably debatable”). This court has also ruled that
“when a completed crime has as an element the actual use of physical force, it
stands to reason that any attempt to commit that completed crime necessarily has
as an element the attempted use of such physical force—thus satisfying the
elements clause.” United States v. Neely, 763 F. App’x 770, 780 (10th Cir. 2019)
(unpublished disposition cited only for persuasive value). In light of these Tenth
Circuit rulings, the district court concluded Rayford was not entitled to relief
under § 2255 because his conviction for attempted bank robbery remained a
viable § 924(c) predicate offense. Accordingly, the district court denied
Rayford’s § 2255 motion and did not grant a COA.
This court cannot grant Rayford a COA unless he can demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the
[motion] 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). In evaluating whether
Rayford has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to his claim.
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Rayford is not required to
demonstrate his appeal will succeed to be entitled to a COA. He must, however,
“prove something more than the absence of frivolity or the existence of mere
good faith.” Id. (quotations omitted).
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This court has reviewed Rayford’s appellate brief, the district court’s
comprehensive order, and the entire record on appeal pursuant to the framework
set out by the Supreme Court in Miller-El and concludes Rayford is not entitled to
a COA. The district court’s resolution of Rayford’s claim is not reasonably
subject to debate and the claim is not adequate to deserve further proceedings.
Accordingly, Rayford has not “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This court denies his request for a
COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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