United States v. Moore

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-5172
(N. D. Oklahoma)
CHRISTOPHER MOORE, JR., (D.Ct. Nos. CV-01-278-H and
98-CR-78-H)
Defendant - Appellant.
____________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, 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.
Christopher Moore, a federal prisoner appearing pro se, 1 seeks a certificate
of appealability (COA) from the district court's denial of his 28 U.S.C. § 2255motion. Before ruling on Moore’s application, however, we must address a
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
jurisdictional issue dealing with the timeliness of Moore’s initiation of his appeal.
Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002) (“[T]his
court must always satisfy itself of jurisdiction before addressing the merits of a
claim . . . .”). Although we conclude Moore’s appeal was timely filed, we deny
his request for a COA.
Background
Moore was convicted in the district court of bank robbery, use of a firearm
to commit a violent crime, and armed carjacking. He unsuccessfully challenged
his convictions on direct appeal. See United States v. Moore, 198 F.3d 793 (10th
Cir. 1999), cert. denied 529 U.S. 1076 (2000). He then petitioned the district
court for relief pursuant to 28 U.S.C. § 2255. Moore raised several claims: (1)
the district court lacked jurisdiction due to intervening decisions by the United
States Supreme Court; (2) his sentence was unconstitutionally enhanced; and (3)
he was denied effective assistance of counsel. On May 14, 2004, the district
court issued its order and judgment denying relief. The order and judgment were
entered on May 17, 2004, starting the time period for the filing of the notice of
appeal. Jenkins v. Burtzloff, 69 F.3d 460, 461 (10th Cir. 1995). Pursuant to Rule
4(a)(1)(B) of the Federal Rules of Appellate Procedure, 2 Moore was required to
2
“When the United States or its officer or agency is a party, the notice of appeal
may be filed by any party within 60 days after the judgment or order appealed from is
entered.” FED. R. APP. P. 4(a)(1)(B).
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file a notice of appeal by July 16, 2004. However, Moore’s application for COA
was not filed in the district court until July 19, 2004.
On October 21, 2004, the district court denied Moore’s application. The
court also found Moore’s application to be the “functional equivalent of a notice
of appeal,” and ordered it processed as such. (R. Doc. 44 at 1, 3.) See Smith v.
Barry, 502 U.S. 244, 248-49 (1992) (“If a document filed within the time
specified by Rule 4 [of the Federal Rules of Appellate Procedure] gives the notice
required by Rule 3, it is effective as a notice of appeal.”).
Discussion
1. Timeliness of Appeal
The timely filing of a notice of appeal is “mandatory and jurisdictional.”
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). Since Moore’s
application was not filed with the district court until July 19, 2004, three days
after the end of the sixty-day filing period, the only way it could be deemed
timely was if he was entitled to the benefit of the prison mailbox rule. Under the
prison mailbox rule, an inmate’s legal pleading is deemed filed at the time he
delivers it to the prison authorities for forwarding to the court. F ED . R. A PP . P.
4(c)(1). 3
3
“If an inmate confined in an institution files a notice of appeal in either a civil or
a criminal case, the notice is timely if it is deposited in the institution's internal mail
system on or before the last day for filing. If an institution has a system designed for
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On December 2, 2004, this Court ordered Moore to show cause why this
case should not be summarily dismissed, due to the apparent untimely filing of the
notice of appeal. In response, Moore filed a declaration that he mailed his
application for COA “[o]n July 14, 2004 . . . from U.S. Penitentiary,
Leavenworth, Kansas, via the institution’s legal mail box . . . .” (Response to
Show Cause Order at 3), attaching a photocopy of a certified mail receipt as
proof. This constituted sufficient compliance with Rule 4(c)(1) of the Federal
Rules of Appellate Procedure. See United States v. Gray, 182 F.3d 762, 766 &
n.7 (10th Cir. 1999). Moore’s application thus was timely filed, and we have
jurisdiction.
2. Certificate of Appealability
In his original 28 U.S.C. § 2255 motion, Moore raised several issues: (1) the
district court lacked jurisdiction because intervening decisions by the United States
Supreme Court in United States v. Morrison, 529 U.S. 598 (2000), and Jones v.
United States, 529 U.S. 848 (2000), rendered unconstitutional the carjacking statute
under which he was convicted; (2) his sentence was unconstitutionally enhanced
based on facts not presented to the jury; and (3) he was denied his constitutional
legal mail, the inmate must use that system to receive the benefit of this rule. Timely
filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a
notarized statement, either of which must set forth the date of deposit and state that
first-class postage has been prepaid.” FED. R. APP. P. 4(c)(1).
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right to effective assistance of counsel due to counsel’s failure to object both to the
sentencing enhancements and to a jury instruction which allegedly omitted a key
element of the offense of carjacking under 18 U.S.C. § 2119. 4 The district court
denied Moore’s petition in its entirety, considering Moore’s challenge to the federal
carjacking statute to be procedurally barred since he had not raised it on direct
appeal. The court further rejected Moore’s attempts to overcome the procedural bar,
finding Moore’s reliance on Morrison and Jones misplaced. Since neither case
affected the constitutionality of the carjacking statute, Moore neither established
cause under the intervening change in law exception to the bar, nor demonstrated
actual prejudice. The court also found Moore’s challenge to his sentence to be both
procedurally barred, since he did not raise it on direct appeal, and incorrect as a
matter of law, since he was not sentenced beyond the statutory maximum. Finally,
the court held Moore’s counsel was not ineffective, since there was no legal basis to
object either to the sentence or to the disputed jury instruction.
In his subsequent application to the district court for a COA, Moore
4
18 U.S.C. § 2119 provides in pertinent part:
Whoever, with the intent to cause death or serious bodily harm takes a
motor vehicle that has been transported, shipped, or received in interstate or
foreign commerce from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or
both . . . .
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contended the court erred in denying his § 2255 motion without a hearing; the court
erred in denying his claims challenging the effectiveness of his counsel; and the
evidence relating to the carjacking was insufficient to prove a nexus to interstate
commerce. Moore abandoned the challenge to his sentence. The district court
summarily denied the application, since Moore had not “made a substantial showing
of the denial of a constitutional right.” (R. Doc. 44 at 2.)
Moore altered his contentions slightly in his COA application to this Court.
He again challenges the effectiveness of his counsel, and argues the evidence
presented was insufficient to establish a nexus to interstate commerce under 18
U.S.C. § 2119. Relying on Morrison, Moore argues that in order to satisfy the
Commerce Clause, evidence at trial must prove each vehicle was moving in
interstate commerce contemporaneously with its theft in order to be convicted under
the federal carjacking statute.
A COA is a jurisdictional pre-requisite to our review. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA only if a petitioner makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “Section 2255 motions are not available to test the legality of matters
which should have been raised on direct appeal.” United States v. Warner, 23 F.3d
287, 291 (10th Cir. 1994) (citation omitted). When a petitioner “fails to raise an
issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding,
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unless he establishes either cause excusing the procedural default and prejudice
resulting from the error, or a fundamental miscarriage of justice if the claim is not
considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (citation
omitted). “Where a district court has rejected the constitutional claims on the merits
. . . [t]he petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court denies the petition on
procedural grounds, the petitioner must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.In reviewing for a COA, we are forbidden from giving full consideration to
the factual or legal bases urged in support of the claims. To the contrary, we
preview the claims and make a general assessment of their merit. Miller-El, 537
U.S. at 336. Although a petitioner, in requesting a COA, is not required to prove
the merits of the case, the threshold of proof is higher than good faith or lack of
frivolity. Id. at 338.
Moore offers two causes to avoid the bar resulting from his failure to raise his
arguments on direct appeal: ineffective assistance of counsel and an intervening
change of law. The district court’s conclusions are not reasonably debatable
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considering the record and Moore’s filings.
A. Ineffective Assistance of Counsel
Moore raises two arguments with respect to his ineffective assistance of
counsel claims. First, he contends the district court did not consider his claims.
Second, he contends the procedural bar rule is inapplicable because he was
represented by the same counsel at trial and on direct appeal, which hindered his
ability to pursue appropriate claims on appeal.
“A defendant may establish cause for his procedural default by showing that
he received ineffective assistance of counsel in violation of the Sixth Amendment.”
United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). “To
establish a claim for ineffective assistance of counsel, a defendant must show that
(1) his counsel's performance was constitutionally deficient, and (2) counsel's
deficient performance was prejudicial.” Id. 45 F.3d at 392 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). We “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Counsel is not ineffective for failing to advance a
futile argument. See Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999).
Moore’s contentions are without merit. The district court correctly applied
Strickland and Cook in determining Moore’s attorney “[did] not act unreasonably by
failing to raise . . . meritless issue[s].” (R. Doc. 42 at 19.) The district court held
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there was no legal foundation upon which to challenge Moore’s sentence, nor was
the carjacking instruction improper under the statute. The district court’s
conclusions are not reasonably debatable. See Miller-El, 537 U.S. at 327.
The district court declined to consider Moore’s two attempts to raise new
issues relating to his counsel’s performance. The first attempt was in Moore’s reply
brief, when he alleged counsel failed to introduce evidence that would have
undermined the government’s case. The district court did not consider this issue
because the government did not have an opportunity to respond. Next, in his
application for COA, Moore argued his appellate counsel—who had also served as
trial counsel—had a conflict of interest. Again, the district court declined to
address this issue because it had not been raised in the § 2255 motion. The district
court’s treatment of issues raised for the first time in a reply brief in a § 2255 case
is in accord with this Court’s practice. See United States v. Alvarez, 137 F.3d 1249,
1251 (10th Cir. 1998).
B. Intervening Change of Law
An intervening change in law can serve as a basis to avoid a procedural
default in a § 2255 motion where the defendant failed to raise the issue on direct
appeal. United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). Moore
argues the Supreme Court’s decision in Morrison constitutes an intervening change
in the law that justifies an exception to his procedural default, and 18 U.S.C. § 2119-9-
violates the Commerce Clause.
In Morrison, the Court held portions of the Violence Against Women Act
exceeded Congress’ Commerce Clause power. 529 U.S. at 617. The Court noted
Congress may not “regulate noneconomic violent criminal conduct based solely on
that conduct’s aggregate effect on interstate commerce.” Id. Prior to Morrison, but
after United States v. Lopez, 514 U.S. 549 (1995), 5 we upheld the constitutionality
of § 2119 against a similar Commerce Clause challenge. United States v. Romero,
122 F.3d 1334, 1339 (10th Cir. 1997). Romero’s reasoning is persuasive in this case
as well, and we note nothing in Morrison which convinces us to alter our decision.
We reject Moore’s intervening law challenge to the federal carjacking statute based
on Morrison.
Conclusion
For essentially the same reasons set forth by the district court, we conclude
Moore has not “made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
We DENY a COA and DISMISS the appeal.
5
In Lopez the United States Supreme Court invalidated the Gun-Free School
Zones Act on Commerce Clause grounds. The Court “identified three broad categories of
activity that Congress may regulate under its commerce power”: (1) “the use of the
channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or
persons or things in interstate commerce”; or (3) “activities having a substantial relation
to interstate commerce.” 514 U.S. at 558-59.
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Moore filed with this court a request to proceed in forma pauperis (ifp) for
this appeal. He was granted permission to proceed ifp in the district court. Since
the district court did not certify in writing that his appeal was not taken in good
faith, 28 U.S.C. § 1915(a)(3), his ifp status continues in this Court without further
order. See Fed. R. App. P. 24(a)(3). Accordingly, his ifp request is denied as moot.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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