1 We construe pro sepleadings liberally. Ledbetter v. City of Topeka, Kan., 318

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

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

### March 29, 2006
Elisabeth A. Shumaker Clerk of Court 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, 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. Christopher Moore, a federal prisoner appearing pro se , 1 seeks a certificate of appealability (COA) from the district court's de nial of his 28 U.S.C. § 2255 motion. Before ruling on Moore’s application, howe ver, we must address a2“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.” F ED
. R. APP
. P. 4(a)(1)(B). -2- 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 be fore addressing the merits of a claim . . . .”). Although we conclude Moore’s appe al was timely filed, we deny his request for a COA. Background Moore was convicted in the district court of bank r obbery, use of a firearm to commit a violent crime, and armed carjacking. H e 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 dist rict court for relief pursuant to 28 U.S.C. § 2255. Moo re raised several claims: (1) the district court lacked jurisdiction due to inter vening decisions by the United States Supreme Court; (2) his sentence was unconsti tutionally 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 f or 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 Proced ure, 2 Moore was required to3 “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 -3- 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 Moor e’s application. The court also found Moore’s application to be the “fun ctional 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 Appell ate 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 “mandato ry and jurisdictional.” Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 203 (1988). Since Moore’s application was not filed with the district court u ntil July 19, 2004, three days after the end of the sixty-day filing period, the o nly 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 forwardin g to the court. F ED
. R. A PP
. P. 4(c)(1). 3legal 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.” F ED
. R. APP
. P. 4(c)(1). -4- On December 2, 2004, this Court ordered Moore to sh ow 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 decla ration that he mailed his application for COA “[o]n July 14, 2004 . . . from U.S. Penitentiary, Leavenworth, Kansas, via the institution’s legal ma il 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 rais ed several issues: (1) the district court lacked jurisdiction because interven ing 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 th e carjacking statute under which he was convicted; (2) his sentence was unconstitutionally enhanced based on facts not presented to the jury; and (3) h e was denied his constitutional418 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 . . . . -5- right to effective assistance of counsel due to cou nsel’s failure to object both to the sentencing enhancements and to a jury instruction w hich 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, considerin g 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 attempt s to overcome the procedural bar, finding Moore’s reliance on Morrison and Jones misplaced. Since neither case affected the constitutionality of the carjacking st atute, Moore neither established cause under the intervening change in law exception to the bar, nor demonstrated actual prejudice. The court also found Moore’s cha llenge to his sentence to be both procedurally barred, since he did not raise it on d irect appeal, and incorrect as a matter of law, since he was not sentenced beyond th e 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 ju ry instruction. In his subsequent application to the district courtfor a COA, Moore-6-

contended the court erred in denying his § 2255 mot ion without a hearing; the court erred in denying his claims challenging the effecti veness of his counsel; and the evidence relating to the carjacking was insufficien t to prove a nexus to interstate commerce. Moore abandoned the challenge to his sen tence. The district court summarily denied the application, since Moore had n ot “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 counse l, 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 thef t in order to be convicted under the federal carjacking statute. A COA is a jurisdictional pre-requisite to our revi ew. 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 constitutio nal right.” 28 U.S.C. § 2253(c)(2). “Section 2255 motions are not availabl e 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 t he issue in a § 2255 proceeding,-7-

unless he establishes either cause excusing the pro cedural default and prejudice resulting from the error, or a fundamental miscarri age 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 reason able jurists would find the district court's assessment of the constitutional claims deb atable 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 givin g 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 h igher 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 ar e not reasonably debatable-8-

considering the record and Moore’s filings.

A. Ineffective Assistance of Counsel Moore raises two arguments with respect to his inef fective assistance of counsel claims. First, he contends the district co urt did not consider his claims. Second, he contends the procedural bar rule is inap plicable because he was represented by the same counsel at trial and on dir ect 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 vi olation of the Sixth Amendment.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitt ed). “To establish a claim for ineffective assistance of cou nsel, 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 re asonable professional assistance.” Strickland, 466 U.S. at 689. Counsel is not ineffective for fa iling to advance a futile argument. See Hawkins v. Hannigan , 185 F.3d 1146, 1152 (10th Cir. 1999). Moore’s contentions are without merit. The distric t court correctly applied Strickland

and Cook

in determining Moore’s attorney “[did] not act unr easonably by failing to raise . . . meritless issue[s].” (R. Do c. 42 at 19.) The district court held-9-

there was no legal foundation upon which to challen ge Moore’s sentence, nor was the carjacking instruction improper under the statu te. 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 cou rt 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 cou nsel—who had also served as trial counsel—had a conflict of interest. Again, t he district court declined to address this issue because it had not been raised i n the § 2255 motion. The district court’s treatment of issues raised for the first ti me 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 t o avoid a procedural default in a § 2255 motion where the defendant fail ed 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 proce dural default, and 18 U.S.C. § 21195 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. -10- violates the Commerce Clause.
In Morrison , the Court held portions of the Violence Against W omen Act exceeded Congress’ Commerce Clause power. 529 U.S. at 617. The Court noted Congress may not “regulate noneconomic violent crim inal conduct based solely on that conduct’s aggregate effect on interstate comme rce.” 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 challen ge. 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 d istrict court, we conclude Moore has not “made a substantial showing of the de nial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
We DENY a COA and DISMISS the appeal.-11-

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