UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS ARREOLA,

Defendant-Appellant.

No. 02-4084

(D. Utah)

(D.C. Nos. 2:00-CV-850-B,

2:97-CR-67-B)

ORDER AND JUDGMENT*

Before EBEL, LUCERO, and O'BRIEN, 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.

Luis Arreola applies pro se1 for a certificate of appealability under 28 U.S.C. § 2253(c)(1) of the district court's denial of his petition for sentencing relief under 28 U.S.C. § 2255.2 Exercising jurisdiction under 28 U.S.C. § 2253(c)(1), we deny his request and dismiss the petition.

A jury convicted Mr. Arreola of distribution of five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in violation of 18 U.S.C. § 2. He was sentenced under 21 U.S.C. § 841(b)(1)(A)(ii) to a mandatory minimum of twenty years imprisonment.3 He had earlier rejected a plea offer by the government that would have resulted in ten years imprisonment. In support of his application, Mr. Arreola asserts ineffective assistance of trial and appellate counsel, failure of the district court judge to recuse himself from the habeas action, and an unconstitutional sentence under Apprendi v. United States, 530 U.S. 466 (2000).

A certificate of appealability 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), by demonstrating "reasonable jurists could debate whether . . . the issues presented [are] adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted).

Effectiveness of trial counsel is determined by applying a two-part test: 1) counsel must have committed errors so serious as to fall outside the kind of functioning required by the Sixth Amendment; and 2) the defendant must show the deficient performance prejudiced the defense in such a fashion as to call into question the reliability of the proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984). We will not indulge hindsight in evaluating counsel's effectiveness, as we apply "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "sound trial strategy." Id. at 689 (quotation marks omitted). A finding of ineffective appellate counsel depends on the merits of the issue not raised. Duckett v. Mullin, 306 F.3d 982, 996 (10th Cir. 2002).

Mr. Arreola argues his trial counsel was constitutionally ineffective for a number of reasons. First, he claims trial counsel should have objected to an alleged violation by the trial judge of Fed. R. Crim. P. 11(e), which forbids participation by the court in plea negotiations. No record evidence supports this charge. At sentencing, the trial judge simply observed Mr. Arreola had earlier rejected a ten year plea offer which the court had encouraged him to accept when he had the chance to do so. If error at all, it was harmless. See Fed. R. Crim. P. 11(h). For the same reason, we see no basis for recusal of the trial judge from the § 2255 proceedings, as Mr. Arreola had requested under 28 U.S.C. § 455(a) (requiring disqualification where impartiality might reasonably be questioned).

Second, Mr. Arreola, who received an enhanced sentence due to a prior felony drug conviction, asserts error because counsel did not object to the district court's failure to comply with 21 U.S.C. § 851(b).4 Notably, Mr. Arreola testified under oath to his prior felony drug conviction. The failure of the trial court to elicit the same information, as required by statute, is harmless error. U.S. v. Lopez-Gutierrez, 83 F.3d 1235, 1246-47 (10th Cir. 1996). The failure to advise as to foreclosure of the right to attack the prior conviction is of no moment when Mr. Arreola presents no grounds for such an attack. Id.

In his final challenge to the effectiveness of trial counsel, Mr. Arreola protests his trial attorney: 1) allowed the district judge to conduct voir dire; 2) avoided defenses relating to chain of custody and proof of the controlled substance5; 3) for alleged personal reasons, agreed to a three day trial; and 4) did not object to the government's jury instructions. These claims are either meritless or fail to overcome a strong presumption of reasonable trial strategy. Strickland, 466 U.S. at 689.

Turning to the constitutionality of Mr. Arreola's sentence, we have interpreted Apprendi6 to limit the sentence imposed for a violation of 21 U.S.C. § 841(a) to the unenhanced standard of not more than twenty years (21 U.S.C. § 841(b)(1)(C)), unless a quantity enhancement has been charged and proven to a jury. United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). While charged here, the drug quantity was not proven to a jury. The sentence imposed, though, is within the statutory maximum of twenty years7, and is therefore constitutional. United States v. Heckard, 238 F.3d 1222, 1235 (10th Cir. 2001).

We find no deficient performance by trial or appellate counsel, find no error in the district court judge failing to recuse himself, and detect no Apprendi violation. Therefore, we conclude no reasonable jurist would debate the district court's denial of Mr. Arreola's § 2255 petition. Accordingly, we decline to issue a certificate of appealability, and dismiss the petition.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge