UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

BRUCE DEREK SPRING,

Defendant - Appellant.

No. 01-4025

(	D.C. No. 98-CV-21-S)

(D. Utah)

ORDER AND JUDGMENT*

Before EBEL, KELLY, and LUCERO, Circuit Judges.**

Mr. Spring, an inmate proceeding pro se, seeks a certificate of appealability ("COA") to appeal from the district court's denial of his 28 U.S.C. § 2255 motion. Mr. Spring was convicted of eleven counts of bank robbery and firearms offenses for his acquisition of a firearm and participation in a series of bank robberies in Utah and Colorado. United States v. Spring, 80 F.3d 1450, 1453 (10th Cir. 1996). We have jurisdiction under 28 U.S.C. §§ 1291 & 2253(c), and deny Mr. Spring's COA application and dismiss his petition.

Mr. Spring was sentenced as a career offender under U.S.S.G. § 4B1.1, Spring, 80 F.3d at 1462, and received 802 months of imprisonment and was ordered to pay $30,996.07 in restitution. Id. at 1455. On appeal, we affirmed on all counts, except for one which was reversed and remanded for a new trial. Id. at 1466. The government dismissed the remanded count, and the judgment was amended accordingly. I R. doc. 31 at 1.

On January 12, 1998, Mr. Spring filed a federal habeas petition, 28 U.S.C. § 2255. I R. doc. 1. In his petition, Mr. Spring asserted three related claims: (1) that there was insufficient evidence to support his conviction of Counts 6 through 9, (2) that appellate counsel was ineffective for failing to raise this claim on appeal, and (3) that appellate counsel was ineffective for failing to argue that the 28 U.S.C. § 924(c) jury instructions were incorrect. I R. doc. 3, at 5-13. Subsequently, Mr. Spring filed a plethora of motions with the court: (1) a motion for appointment of counsel, I R. doc. 15, (2) a motion for modification of the restitution order, I R. doc. 19, (3) a motion "questioning the federal jurisdiction of bank robbery," I R. doc. 20, (4) a motion for "release from custody and a stay of restitution payments pending habeas corpus," I R. doc. 21, (5) a motion for "the appointment of a paralegal service," I R. doc. 22, (6) a motion for trial transcripts, I R. doc. 23, (7) a motion "questioning the amount of the restitution order," I R. doc. 24, (8) a motion for evidence, I R. doc. 25, (9) a motion for grand jury transcripts, I R. doc. 26, (10) a motion "requesting in which constitutional jurisdiction this court was acting under in criminal case," I R. doc. 27, (11) a motion to compel, I R. doc. 28, and, finally, (12) a motion requesting an evidentiary hearing, I R. doc. 29.1 On September 10, 1999, the district court denied Mr. Spring's motion for appointment of counsel. I R. doc. 17. On December 8, 2000, the court denied Mr. Spring's petition. I R. doc. 31, at 9. The court concluded that there was sufficient evidence to support Mr. Spring's conviction for counts 6 through 9 and that, therefore, Mr. Spring's ineffective assistance of appellate counsel claim failed for lack of prejudice. Id. at 5-9. The court also denied each of Mr. Spring's remaining motions, id. at 9, including Mr. Spring's motion for reconsideration of the district court's order denying Mr. Spring's motion for appointment of counsel. I R. doc. 18. The court concluded that the motions were "either moot or without merit." I R. doc. 31, at 9. Mr. Spring now appeals the district court's denial of his petition and motions.

We must first consider whether a COA should issue. Because the district court did not address the issue, the district court is deemed to have denied a COA. General Emergency Order of October 1, 1996. A COA should issue only if Mr. Spring has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). That is, Mr. Spring 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). Because Mr. Spring appears pro se, we liberally construe his pleadings. Hunt v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999).

Mr. Spring cites a litany of grounds for the issuance of a COA. We decline to consider those alleged errors which Mr. Spring failed to raise in his habeas petition to the district court.2 Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). We also decline to consider Mr. Spring's argument that the district court "illegally ordered [Mr. Spring] to pay restitution" because "payment [was] established by the B.O.P.," Pet. Br. at 3, and that he was "sentenced to pay restitution to parties that [he] was not indicted for." Id. at 2. This claim is procedurally barred because Mr. Spring failed to raise this argument on direct appeal3 and has not shown cause or demonstrated a fundamental miscarriage of justice would result if we do not consider the claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). We therefore address only one issue raised in Mr. Spring's COA application:4 that appellate counsel was ineffective for failing to argue that Mr. Spring was not a career offender because two of his prior seven state convictions, see Spring, 80 F.3d at 1455 n.2, upon which his career offender status was premised, were dismissed twenty days after he was sentenced. Pet. Br. at 3, 14-15. We agree with the district court that this claim is meritless. Other than his conclusory allegation, Mr. Spring provided no evidence as to which of his seven prior convictions were dismissed and has provided absolutely no evidence supporting his allegation that any of the convictions were in fact dismissed. Accordingly, Mr. Spring suffered no prejudice by appellate counsel's failure to raise this claim on appeal, and, for this same reason, appellate counsel was not ineffective. United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995). Mr. Spring has therefore not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

Accordingly, Mr. Spring's motion to proceed in forma pauperis is GRANTED, his COA application is DENIED, and his habeas petition is DISMISSED. Mr. Spring's motion for appointment of counsel is also DENIED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge