United States v. Pritchard , 191 F. App'x 705 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-1336
(D.C. No. 05-D-130)
v.
(D.C. No. 01-CR-288-D)
(Colorado)
D O N A LD PR ITC HA RD ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Donald Pritchard, proceeding pro se, 1 seeks a certificate of appealability
(COA) pursuant to 28 U.S.C. § 2253(c)(1) to challenge the district court’s
dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
1
Because he is proceeding pro se, we review M r. Pritchard’s pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
sentence. He also seeks leave to proceed in form a pauperis (ifp) on appeal. 2
Issuance of a COA is jurisdictional. M iller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). A COA can issue only “if the applicant has made a substantial
show ing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An
applicant “satisfies this standard by demonstrating 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.” M iller-El, 537 U.S. at 327. “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336. “This threshold inquiry does not require
full consideration of the factual or legal bases adduced in support of the claims.
In fact, the statute forbids it.” Id. Although M r. Pritchard is not required to
prove the merits of his case to obtain a COA, he must demonstrate “something
more than the absence or frivolity or the existence of mere good faith” on his
part. Id. at 338. A prisoner seeking ifp status must demonstrate financial
inability to pay and existence of “a reasoned, nonfrivolous argument on the law
and the facts in support of the issues raised on appeal.” M cIntosh v. United States
Parole Comm’n, 115 F.3d 809, 812-13 (10th Cir. 1997) (internal quotation marks
omitted). Because we conclude that M r. Pritchard has not even made a showing
2
The district court denied M r. Pritchard’s application for a COA, as well as
his motion for leave to proceed in form a pauperis on appeal.
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of good faith and the absence of frivolity, we deny both his application for COA
and his motion for leave to proceed ifp on appeal.
M r. Pritchard was convicted after a jury trial on eight counts of wire fraud
in violation of 18 U.S.C. § 1343, and the district court sentenced him to thirty-
four months imprisonment on each count, to be served concurrently. We
affirmed. United States v. Pritchard, 86 Fed. Appx. 387 (10th Cir. Jan. 23,
2004). He timely filed this § 2255 motion presenting three claims. First, he
contended his attorney provided ineffective assistance of counsel by failing to
object to the district court’s findings regarding the calculation of loss for
guidelines sentencing purposes and for failing to argue that Mr. Pritchard w as,
himself, a victim of fraud. Second, he claimed the government’s civil forfeiture
action against his house and property violated the Double Jeopardy Clause.
Finally, he asserted the district court imposed his sentence in violation of United
States v. Booker, 543 U.S. 220 (2005). The district court considered all claims on
their merits and denied the motion.
After review ing the record and the parties’ arguments to the district court,
we conclude reasonable jurists could not find the district court’s resolution of
these three claims debatable. Regarding M r. Pritchard’s ineffective assistance of
counsel claims, the district court correctly applied the United States Supreme
Court’s two-prong inquiry set forth in Strickland v. Washington, 466 U.S. 668(1984), and concluded M r. Pritchard failed to show that his counsel’s
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performance fell below an objective standard of reasonableness or prejudiced
him. The record amply supports the district court’s conclusion for the reasons
stated in its opinion.
Regarding M r. Pritchard’s double jeopardy claim, the district court
correctly pointed to the United Supreme Court’s holding in United States v.
Ursery that “[i]n rem forfeiture is a remedial civil sanction, distinct from
potentially punitive in personam civil penalties such as fines, and does not
constitute a punishment under the Double Jeopardy Clause.” 518 U.S. 267, 278
(1996). See also United States v. One Parcel of Real Prop. Described As Lot 41,
Berryhill Farm Estates, 128 F.3d 1386, 1391 (10th Cir. 1997). Reasonable jurists
would not find debatable the district court’s determination that M r. Pritchard’s
double jeopardy claim was foreclosed by law.
Finally, regarding M r. Pritchard’s claim that his sentence was invalid
because it was based on facts not found by the jury in violation of Booker, the
district court correctly stated that the Booker decision is an extension of the
Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004). The district court recognized our
court has held that Apprendi and Blakely may not be applied retroactively in a §
2255 motion. See United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005);
United States v. M ora, 293 F.3d 1213, 1219 (10th Cir. 2002). M oreover, in
U nited States v. Bellam y, we concluded similarly that Booker does not apply
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retroactively on collateral review. 411 F.3d 1182, 1187-88 (10th Cir. 2005). W e
are not persuaded that reasonable jurists could find this conclusion debatable.
For the foregoing reasons, we DENY M r. Pritchard’s application for COA
and DISM ISS his appeal. W e also DENY his motion to proceed ifp on appeal.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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