United States v. Peach ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 07-3036
v. (D. Kansas)
M ICHA EL C . PEA CH , (D.C. No. 95-CR-10052-M LB)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
M ichael Peach seeks a certificate of appealability (COA) following the
denial by the United States District Court for the District of Kansas of his motion
under Fed. R. Civ. P. 60(b) . See 28 U.S.C. § 2253(c) (requiring a COA to pursue
an appeal); Spitznas v. Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006)
(requiring COA to appeal denial of Rule 60(b) motion). He contends (1) that the
district court erred in not allowing him to argue the merits of the ineffective-
assistance-of-counsel claim that he raised in his motion for relief under 28 U.S.C.
§ 2255, and (2) that his trial counsel was ineffective for failing to object to his
retrial on one count of his indictment. We deny a COA and dismiss the appeal.
In 1995 M r. Peach was convicted on two counts of possession with intent to
distribute crack cocaine, see 21 U.S.C. § 841(a)(1) (1995), and two counts of use
of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)
(1995). He moved for a new trial. The district court granted his motion on one of
the firearms counts, but he was again found guilty on that count. Because he had
already been convicted on one count of having violated § 924(c)(1), the court
sentenced him to 20 years’ imprisonment, to be served consecutively to his
sentences on the other counts. W e affirmed his convictions and sentences on
direct appeal.
On August 24, 1998, M r. Peach filed a motion for relief under 28 U.S.C.
§ 2255. Among the grounds asserted for relief, he argued that the district court
had improperly enhanced his sentence on the retried count on the basis of a prior
§ 924(c)(1) conviction because, under our holding in United States v. Abreu, 962
F.2d 1447 (10th Cir. 1992), judgment vacated by United States v. Abreu, 508 U.S.
935 (1993), he did not have a prior § 924(c)(1) conviction. He also argued that he
had “suffered ineffective assistance of counsel for not challenging the 924(c)
enhancement.” R. Doc. 155 at 16. On November 20, 1998, the district court
denied his motion. On December 15, 2006, M r. Peach filed a Rule 60(b) motion
to vacate the court’s order denying his motion for relief, arguing that the court
had failed to address his ineffective-assistance-of-counsel claim. The district
court did not rule on the motion, but construed it as a second or successive § 2255
motion and transferred it this court. See 28 U.S.C. § 2255 (requiring second or
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successive motion to be certified as provided in 28 U.S.C. § 2244); id. § 1631
(authorizing transfer of action to proper court).
W e held that M r. Peach’s motion was not a second or successive § 2255
motion but was a true Rule 60(b) motion because it did not challenge the merits
of the district court’s ruling on his § 2255 motion; rather, it alleged a defect in the
§ 2255 proceedings. See Peach v. United States, 468 F.3d 1269, 1271–72 (10th
Cir. 2006). Therefore the district court had jurisdiction to consider the motion,
and we remanded the case to the district court to rule on it in the first instance.
See id. at 1272.
On remand the district court determined that it had, in fact, failed to
address M r. Peach’s ineffective-assistance claim in its denial of his § 2255
motion. On the merits, however, it denied relief. It held that counsel had not
been ineffective for failure to invoke Abreu, 962 F.2d 1447, because that decision
had been overruled by the Supreme Court in Deal v. United States, 508 U.S. 129(1993), three years before M r. Peach had been sentenced.
In his pleading before this court M r. Peach reasserts his contention that his
counsel was ineffective for having failed to raise a challenge to the § 924(c)(1)
enhancement, and for the first time he argues that his counsel was ineffective for
having failed to object to his retrial on the firearms charge.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
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requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.W e can readily dispose of both of M r. Peach’s claims of ineffective
assistance of counsel. W ith respect to the claim relating to the § 924(c)(1)
enhancement, no reasonable jurist could debate the district court’s denial of the
claim. And as to the claim based on failure to challenge the new trial, M r. Peach
did not raise this argument below, so we cannot address it. See Moore v. Gibson,
195 F.3d 1152, 1180–81 (10th Cir. 1999).
Because M r. Peach has failed to make a substantial showing of the denial
of a constitutional right, w e D ENY a COA and DISM ISS the appeal. W e GRAN T
M r. Peach’s motion to proceed in form a pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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