UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. NICKOLAUS ANNTWANN DOUGLAS, Defendant - Appellant. No. 20-5064 (D.C. Nos. 4:18 -CR-00196-CVE; 4:20-CV-00093-CVE-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Defendant is in custody for violating fede ral gun laws. To remedy his situation, Defendant filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 – which the distri ct court denied. The district court declined to issue a certificate of appealability. De fendant now seeks a certificat e of appealability from this Court. To obtain a certificate of appealability, a defendant mu st show that “reasonable jurists could debate whether . . . the petition should have been reso lved in a different manner or that the issues presented were ad equate to deserve encouragement to proceed

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 14, 2020 Christopher M. Wolpert Clerk of Court2 further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the following reasons, we decline to issue a certificate of appealab ility and dismiss this appeal. 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). A special agent with the Bu reau of Alcohol, Tobacco, Firearms, and Explosives swore to a criminal complaint and attached an affidavit alle ging the following facts. Two Tulsa, Oklahoma police officers noticed a vehicle with its license plate partially obstructed from view and initiated a traffic st op. Defendant consented to the officers’ request to search the vehicle. During the se arch, the officers found a loaded Taurus 9mm pistol. One of the officers read Defendant his Miranda rights. During the conversation that followed, Defendant told the officers that (1) he owne d the items in the car, (2) he knew he was a felon, and (3) he knew he was not supposed to have a gun. A grand jury returned an indictment alleging that Defe ndant possessed a firearm and ammunition in violation of 18 U.S.C. §§ 9 22(g)(1) and 924(a)(2). Defendant pleaded guilty to the charged offenses and th e district court sentenced him. Defendant then filed a § 2255 moti on claiming his counsel provided ineffective assistance by advising him to accept a plea ag reement. The district court denied his motion. To prevail on his ineffectiv e assistance of counsel cl aim, Defendant must show that (1) “counsel made errors so serious th at counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment” and (2) “c ounsel’s errors were so serious as to deprive the defendant of a fair trial, a tr ial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The “proper standard for attorney performance is3 that of reasonably effective assistance,” under “prevailing professional norms” in the legal profession. Id. at 687–88. So, “a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was no t ‘a reasonably competent attorney’ and the advice was not ‘within the range of compet ence demanded of attorneys in criminal cases.’” Id. at 687 (quoting McMann v. Richar dson, 397 U.S. 759, 770, 771 (1970)). Defendant raises two potential bases in support of his claim that counsel’s assistance fell below the constitutional minimum. First, he claims that his counsel failed to raise Rehaif v. United States, 139 S. Ct. 21 91 (2019). And second, he claims counsel advised him to enter a plea of guilty to a ch arge that the governme nt could not prove at trial. 1 Defendant’s argument based upon counsel’s fa ilure to raise Rehaif lacks merit. Defendant pleaded guilty in Oc tober 2018, and the court ente red judgment in February 2019. The Supreme Court decided Rehaif in June 2019, eight m onths after the guilty plea and four months after the judgment. A failure “to predict future law” is not ineffective assistance of couns el. Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002). For that reason, Defendant cannot show the denial of a constitutional right or that reasonable jurists could debate whether the district court prop erly resolved the petition as to this argument. 28 U.S.C. § 2 253(c); Slack, 529 U.S. at 484.

1 The district court construed the motion to include an argu ment that counsel coerced Defendant to enter the plea. Defenda nt, however, does not develop the issue on appeal. Thus, we do not reach it. See Reed y v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).4 Defendant next argues that, given Rehaif, the government could not prove its case at trial and yet, his counsel advised him to plead guilty. In Rehaif, the Supreme Court held that prosecution under either 18 U.S.C. § 922(g) or 924(a)(2) requires the government to “prove both that the defenda nt knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at 2200. Defendant ar gues that he “did not admit at the time of his arrest that he was a felon who was not permitted to possess the firearm found in his truck.” And, he contends “the government cannot provid e any evidence to the contrary.” As discussed above, the Supreme Court d ecided Rehaif after the district court entered its judgment. Before Rehaif, every ci rcuit that addressed the question, including this one, held the government did not need to prove a defendant’s knowledge of his status. Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J., dissenti ng); United States v. GamesPerez, 667 F.3d 1136, 1141–42 (10th Cir. 20 12). Thus, even if counsel had raised Defendant’s knowledge, the theory would have failed under then-existing law. And the failure to raise a meritless issu e is not ineffective assistance of counsel. Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir. 2006). As above, we conclude Defendant failed to show the denial of a constitutional right or that the district court’s resolution of his motion is debatable. 28 U.S.C. § 2 253(c); Slack, 529 U.S. at 484. Because we conclude that Defendant’s co unsel was not ineffective, we need not address Strickland’s second prong. United States v. Hollis, 552 F.3d 1191, 1194 (10th Cir. 2009). For the reasons discussed abov e, we DENY Defendant’s request for a5 certificate of appealability and DISMISS this appeal.

Entered for the Court

Joel M. Carson III Circuit Judge