UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER MOORE, JR.,

Defendant - Appellant.

No. 04-5172

(N. D. Oklahoma)

(D.Ct. Nos. CV-01-278-H and

98-CR-78-H)
____________________________

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. § 2255 motion. Before ruling on Moore's application, however, we must address a 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 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. Fed. R. App. P. 4(c)(1).3

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 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 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, 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 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 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 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.

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