United States v. Jenkins , 613 F. App'x 754 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT August 21, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6097
(W.D. Oklahoma)
STEVEN DEWAYNE JENKINS,
(D.C. Nos. 5:14-CV-01087-HE and
Defendant - Appellant. 5:12-CR-00118-HE-1)
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before, HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
Defendant Steven Jenkins seeks a certificate of appealability (COA) to appeal the
denial of his motion for relief under 28 U.S.C. § 2255 by the United States District Court
for the Western District of Oklahoma. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to
appeal denial of motion under § 2255). He is entitled to a COA only if he “has made a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
In district court Defendant raised four grounds for relief: ineffective assistance of
trial counsel in the investigation of this case, a conflict of interest of his trial counsel,
ineffective assistance of trial counsel at sentencing, and ineffective assistance of appellate
counsel for failing to raise the three prior claims of ineffective trial counsel. He later
added an additional claim in anticipation of a decision by the United States Supreme
Court in Johnson v. United States, 135 S. Ct. 2551 (2015).
In this court Defendant raises only his claim based on Johnson. But Johnson is
irrelevant to his prosecution and sentence. Johnson held that the residual clause of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally
vague. See Johnson 135 S. Ct. at 2563. True, Defendant was sentenced under the
ACCA. But the sentence imposed on Defendant was not based on the voided residual
clause. Rather, his ACCA enhancement was under 18 U.S.C. § 924(e)(2)(A). See United
States v. Jenkins, 535 F. App’x 720, 721 (10th Cir. 2013) (sentence enhancement based
on prior convictions for various drug offenses).
It is obvious that Johnson can provide no relief to Defendant. We DENY his
request for a COA and dismiss the appeal. We GRANT his request to proceed in forma
pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
2