## F I L E D United States Court of Appeals Tenth Circuit 

### June 6, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LARRY JERMAIN BATTLE, JR., Defendant - Appellant. Nos. 04-3137 & 04-3215 (D. Kansas) (D.Ct. Nos. 03-CV-3379-JTM & 00-CR-10059-JTM)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument. Larry Jermaine Battle, Jr. was convicted on May 9, 2001, for interfering with or obstructing interstate commerce by committi ng a robbery in violation of the Hobbs Act and causing the death of Edward S. Le e with a firearm during the commission of the robbery. Battle appealed his con viction to this Court, challenging, inter alia , the district court’s jurisdiction. This Court af firmed the1 We construe pro sepleadings liberally. Ledbetter v. City of Topeka, Kan., 318

F.3d 1183, 1187 (10th Cir. 2003).

2We treat his appeals as a combined application to this Court for a COA. United States v. Gordon , 172 F.3d 753, 753-54 (10th Cir. 1999). -2- conviction. United States v. Battle , 289 F.3d 661, 671 (10th Cir. 2002) (Battle I ). After losing on appeal, Battle filed a pro se 1 28 U.S.C. § 2255 motion with the district court. In his § 2255 motion, Battle a lleged: 1) lack of jurisdiction in the district court; 2) ineffective assistance of tr ial counsel; and 3) ineffective assistance of appellate counsel. Based in part on this Court’s previous ruling in Battle I, 289 F.3d 661, the district court denied Battle’s § 2255 motion. Battle then moved for a certificate of appealability (COA) , which the district court denied. Battle separately appealed the denial of h is § 2255 motion (04-3137) and the denial of a COA (04-3215). 2
Battle reasserts the same three claims he raised in the district court. Unless we issue a COA, we lack jurisdiction to review the merits of a claim. 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA can issue only “if the applicant has made a substantial showi ng of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Apetitioner satisfies this standard by demonstrating that jurists of reason could disag ree with the district court’s resolution of his constitutional claims or that jur ists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El,-3-

537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). As noted by the district court, Battle has raised n o new arguments that call into question this Court’s jurisdictional holding i n Battle I. Consequently, his jurisdictional claim remains without merit. Battle also raises claims of ineffective assistance of counsel at both the trial and appellate levels. He contends his trial counse l failed to adequately investigate the PSIR criminal history calculation p rior to sentencing. As a result, he argues his sentence was inappropriately based on a criminal history category of II rather than I. He also alleges his appellate co unsel was ineffective for failing to bring this issue to the attention of the appellate court, as well as failing to challenge the district court’s discretion in imposi ng a consecutive rather than a
concurrent sentence. To prevail on an ineffective assistance claim, Batt le must establish that his counsel’s deficient performance prejudiced his defe nse. Romano v. Gibson , 239 F.3d 1156, 1180 (10th Cir. 2001). To do this, he m ust demonstrate that but for his counsel’s objectively deficient performance, th ere is a reasonable probability the result would have been different. Id .; Hickman v. Spears , 160 F.3d 1269, 1273 (10th Cir. 1998). We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professio nal assistance.” Strickland v. Washington , 466 U.S. 668, 689 (1984). Moreover, “strategic c hoices made after-4-

thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id . at 690. “When considering a claim of ineffective assistance of appellate counsel for failure to rais e an issue, we look to the merits of the omitted issue.” Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999). Appellate counsel is not required to appeal every n onfrivolous issue, Jackson v. Shanks , 143 F.3d 1313, 1321 (10th Cir. 1998); Banks v. Reynolds , 54 F.3d 1508, 1515 (10th Cir. 1995), let alone issues which appea r to be without merit

. Hawkins v. Hannigan , 185 F.3d 1146, 1152 (10th Cir. 1999). Although Battle protests the inaccuracy of the pre sentence investigation report, there is no evidence in the record regardin g the nature of the inaccuracy effective counsel allegedly would challenge. Witho ut more, it is impossible to assess the merits of Battle’s claim of inaccuracy; whether his trial counsel’s conduct fell below an objective standard of reasona bleness in failing to object to the issue at trial; or whether any such mistake act ually prejudiced Battle. See Neill v. Gibson , 278 F.3d 1044, 1055 (10th Cir. 2001) (noting the impossibility of establishing whether trial counsel’s conduct was re asonable strategy based on an insufficient record). In light of the presumptive competency of counsel, conclusory allegations are not enough. Dever v. Kansas State Penitentiary , 36 F.3d 1531, 1537 (10th Cir. 1994) (“The convicted de fendant making [an ineffective assistance] claim must identify the act s or omissions alleged not to3 This Court noted in Battle I that Battle “failed to discuss the discretionary authority of a court to impose consecutive sentences pursuant to § 3584 and the requirement under Rosethat the court state its reasons for doing so.” 289 F.3d at 665. -5- have been the result of reasonable professional jud gment.”) We therefore find no showing of the denial of a constitutional right at either the trial or appellate level based on the use of a level II criminal history cat egory. Battle also claims he was prejudiced by his appellate counsel’s failure to challenge the absence of the district court’s reaso ns for imposing consecutive sentences under § 3584, as required by United States v. Rose , 185 F.3d 1108 (10th Cir. 1999). 3 We held in Rose that if a district court exercises its discretion u nder § 3584 to impose consecutive sentences it must stat e its reasons for doing so. Id

. at 1112-13. Here, the district court did not state its reasons for imposing Battle’s consecutive sentences. Battle I, 289 F.3d at 665. “This omission would, in certain cases, compel us to vacate the sentences an d remand the case.” Id

. However, Battle pointedly ignores that we addressed this issue in Battle 1

. There, we stated, “[w]e are not . . . compelled to vacate the district court’s sentencing decision if it was mandated by §§ 924(c) (1) and (j)(1) to impose consecutive sentences.” Id . We then expressly held § 924(c) unambiguously mandates the imposition of aconsecutive sentence “in addition to” the punishment ordered fo r the use of a firearm during the commission of a crime of violence where the evidence demonstrates the existence of the aggravating sente ncing factors set forth in § 924(j).-6-

Id . at 669. Consequently, we affirmed the consecutiv e sentences. Thus, even if Battle’s appellate counsel had raised Rose , consecutive sentences would still have been mandated by § 924(c ) and (j). As such, any error on the part of Battle’s appellate counsel was not p rejudicial. Based on the above, we DENY Battle’s request for a COA on the § 2255 issue and DISMISS the appeal.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge