United States v. Mitchell , 44 F. App'x 437 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 28 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3377
(D.C. Nos. 01-CV-3305-DES,
DEJON MITCHELL, 97-CR-40013-02-DES)
(D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and HARTZ , Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
Defendant Dejon Mitchell seeks a certificate of appealability (COA) from
this court in order to appeal the district court’s order denying the relief sought in
his motion filed under 28 U.S.C. § 2255. We deny Mr. Mitchell’s application and
dismiss the appeal.
To be entitled to a COA, Mr. Mitchell must make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this
showing by establishing 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. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). We will grant relief if we determine that “the judgment was rendered
without jurisdiction, or that the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255.
Mr. Mitchell pleaded guilty to distribution of forty grams of crack cocaine
in violation of 21 U.S.C. § 841(a)(1). He was sentenced on March 30, 2000, to
108 months in prison. Judgment was entered April 10, 2000. Mr. Mitchell did
not appeal.
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On June 27, 2001, Mr. Mitchell filed his motion in the United States
District Court for the Western District of New York. Because the motion was
filed in the wrong court, it was transferred to the District of Kansas on July 24,
2001. The Kansas district court denied the motion without requesting a response
from the government, finding that Mr. Mitchell was entitled to no relief. On
appeal, Mr. Mitchell relies on Apprendi v. New Jersey, 530 U.S. 466 (2000) to
argue that (1) his conviction must be vacated because § 841 is unconstitutional
and (2) his sentence must be vacated. He also contends that his attorney’s failure
to challenge the validity of § 841 constituted ineffective assistance of counsel;
but because he did not raise this issue in district court, we do not consider it in
deciding whether to issue a certificate of appealability. See Rhine v. Boone , 182
F.3d 1153, 1154 (10th Cir. 1999) (issues raised for the first time on appeal will
ordinarily not be considered).
We conclude that Mr. Mitchell cannot make the requisite showing to
warrant issuance of a COA. We have held that Apprendi is “not retroactively
applicable to initial habeas petitions.” United States v. Mora , 293 F.3d 1213,
1219 (10th Cir. 2002). Moreover, we have determined that Ҥ 841 remains
constitutionally enforceable notwithstanding Apprendi .” United States v.
Cernobyl , 255 F.3d 1215, 1219 (10th Cir. 2001).
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Hence, Mr. Mitchell has failed to make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not
debate whether his § 2255 “petition should have been resolved in a different
manner” or whether “the issues presented were adequate to deserve
encouragement to proceed further.” Slack , 529 U.S. at 484 (internal quotation
marks omitted). We deny a COA and DISMISS this appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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