UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CRAIG ALAN DEMEULENAERE, Defendant - Appellant. No. 17-8093 (D.C. Nos. 2:17-CV-00079-NDF & 2:15-CR-00181-NDF-1) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Pro se prisoner Craig DeMeulenaer e seeks a certificate of appea lability (COA) to appeal the district court’s de nial of his 28 U.S.C. § 2255 moti on and his motion to alter or amend the judgment. See 28 U.S.C. § 2253(c)(1)(B) (“Unle ss a circuit justice or judge issues a certificate of appealab ility, an appeal may not be tak en to the court of appeals from . . . the final order in a proc eeding under section 2255.” ). He also requests leave to proceed in forma pauperis (IFP) on appeal. We deny a COA, deny IFP, and dismiss this

matter.

* This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 

### July 12, 2018
Elisabeth A. Shumaker Clerk of Court2 I. Background In 2014, law-enforcement author ities suspected DeMeulenaere of distributing controlled substances in the ar ea of Alpine, Wyoming, based on his telephone records and information provi ded by numerous confi dential sources. Aut horities used DeMeulenaere’s phone records and a tracking device on his vehic le to discover that he visited drug suppliers in Salt Lake City, Utah, and then made s tops in the Alpine area. On July 17, 2015, authorities fo llowed DeMeulenaere to Salt Lak e City based on information that he was going there to obtain methamphetamine f or distribution in Alpine. On his way ba ck to Alpine, DeMeulenaere was stopped an d his vehicle was searched. The search resulted in the seizure of 457 grams of m ethamphetamine. DeMeulenaere was charged with several federal drug crimes. In March 2016, DeMeulenaere en tered a guilty plea to possession with intent to distribute more than 50 grams o f a mixture or substance contain ing methamphetamine. In exchange for his guilty plea, t he government dismissed two o ther drug counts and a sentence-enhancement provision th at would have subjected DeMeul enaere to a mandatory life sentence. In additi on, the government agreed to recommend a three-level downward adjustment for accep tance of responsibility. Accordin gly, DeMeulenaere’s potential sentence decreased from a mandatory life sentence to a sentence between 5 and 40 years. The advisory guidelin es range was 97-121 months, and the court imposed a sentence of 97 months. The plea agreement provided, “the parti es waive their right to appeal the judgment, conviction , and sentence in this matter,” R. Vol. 4, at 8, but did not3 waive the right to seek collateral relief. DeMeulenaere did no t appeal his conviction or

sentence. DeMeulenaere filed a § 2255 moti on raising the following claims of ineffective assistance of counsel: (1) failure to investigate the search o f his vehicle; (2) failure to file a motion to suppress the drugs se ized during the vehicle search ; and (3) failure to provide adequate legal advice regarding the plea agreement. The distri ct court denied the § 2255 motion and denied a COA. DeMeulenaere then filed a motion to alter or amend the judgment under Rules 59(e) and 60(b) of the Feder al Rules of Civil Procedure o n the ground that the order denying the § 2255 motion re sted on erroneous findings of fact—that DeMeulenaere had been arrested w hen his vehicle was seized and that his vehicle was searched at the scene. He conten ded he was not arrested at the roadside stop and his vehicle was searched the followi ng day during an inventory sear ch. The district court denied the motion. II. Notice of Appeal DeMeulenaere filed a timely notice of appeal. See Fed. R. App. P. 4(a)(1)(B)(i) (providing that in a civil case in which the United States is a party, the notice of appeal may be filed within 60 days of the judgment or order appealed f rom); see also United States v. Cruz , 774 F.3d 1278, 1284 (10th Ci r. 2014) (applyi ng Rule 4(a)(1)(B )(i) in § 2255 appeal). In his notice o f appeal, DeMeulenaere designat ed the order denying his motion to alter or amend the judgm ent as the ord er being appeal ed. See Fed. R. App. P. 3(c)(1)(B) (stating notice of appe al must, among other things, “designate the judgment,4 order, or part thereof being app ealed”). Because “Rule 3(c)(1) (B)’s designation requirement is jurisdictional,” Williams v. Akers , 837 F.3d 1075, 1078 (10th Cir. 2016), ordinarily our review would be limited to the order denying the motion to alter or amend. But within the time for filing a notice of appeal, DeMeulenaere also filed a document indicating his intent to appeal the order denying his § 2255 mo tion. See Untitled document at 1, United States v. D eMeulenaere, No. 17-8093 (10th Cir. Dec. 21, 2017). Liberally construing this pro se filing as a notice of appeal, see Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10t h Cir. 2005), we have jurisdiction over the order denying the § 2255 motion, see Sines v. Wilner , 609 F.3d 1070, 1074-75 (10th Cir. 2010) (holding that a filing may be con strued as a notice of appeal w hen the intent to appeal “can fairly be inferred” and the other party is not prejudiced) (internal quotation marks omitted) (collecting cases)). III. Denial of § 2255 Motion DeMeulenaere seeks a COA to app eal the district court’s rulings that his trial counsel was not ineffective for fa iling to investigate the circ umstances surrounding the search of his vehicle and for n ot filing a motion to suppress t he drug evidence found in the vehicle. He contends that an investigation would have reve aled facts to support a successful motion to suppress th e drugs, which would have resul ted in the dismissal of the charges or a significantly l ower sentence. He also claims the district court was required to hold an evidentiary hearing on these claims. To merit a COA, DeMeulenaere must make “a substantial showing o f the denial of a constitutional right.” 28 U. S.C. § 2253(c)(2). This require s a showing that “jurists of5 reason would find it debatable wh ether the petition states a va lid claim of the denial of a constitutional right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). To show that his counsel provide d ineffective assistance in vio lation of the Sixth Amendment, DeMeulenaere must s how (1) that his counsel was cons titutionally ineffective, and (2) that the re sult of his criminal proceeding s would have been different if not for his counsel’s ineffectiveness. See Strickland v. Washington , 466 U.S. 668, 687 (1984). Because DeMeulen aere claims his attorney was ineffecti ve for failing to seek suppression of evidence, we cons ider the merits of the suppress ion issue. See United States v. Orange , 447 F.3d 792, 797 ( 10th Cir. 2006) (holdi ng when the basis fo r an ineffective-counsel claim is t he failure to raise an issue, the court must “look to the merits of the omitted issue”). “If the o mitted issue is without merit , then counsel’s failure to raise it is not prejudicial, a nd thus is not ineffective assist ance.” Id. “Under the automobile exception to the warrant requirement, pol ice officers may stop and search a car if they have probable cause to believe it contains contraband, regardless of whether a traffic violation has occurred or a sea rch warrant has been obtained.” United States v. Benard , 680 F.3d 1206, 1210 (10t h Cir. 2012). Officers have probable cause to search a vehicle “if, under the totality of t he circumstances, there is a fair probability that the car cont ains contraband or evidence.” Id. (internal quotation marks omitted). Moreover, “[u]nde r the collective knowledge do ctrine, the officer who conducts the vehicle search doe s not need to be aware of the fa cts establishing probable cause, so long as he is acting on instructions delivered by an officer who has probable cause.” Id. We agree with the district court that the officers who stoppe d6 DeMeulenaere’s vehicle had probab le cause to search his vehicle based on their extended investigation of his met hamphetamine dealing. Furthermore, DeMeulenaere acknowl edges that the drugs were foun d during an inventory search of t he vehicle. Inventory searches “are now a well-defined exception to the warrant requirement of the Fou rth Amendment,” when “conduct ed according to standardized procedures” and “j ustified by the administrative p urposes of such searches.” United States v. Tueller , 349 F.3d 1239, 1243 (10th Cir. 2 003) (internal quotation mark s omitted). 1 Therefore, we agree with the d istrict court that an investiga tion of the traffic stop would not have revealed facts to support suppression of th e drugs found in DeMeulenaere’s vehicle. And as t he district court noted, the g overnment had extensive evidence of DeMeulenaere’s drug tr afficking besides the drugs f ound in his vehicle, including phone and text message s, witness statements, pictures from pole cameras, evidence from the tracking device placed on his vehicle, eviden ce found at his residence, and evidence from extensive surv eillance. Therefore, even if t he drugs in the vehicle had been suppressed, dismissal of any of the charges would have bee n unlikely. Thus, counsel’s failure to conduct an i nvestigation or to file a moti on to suppress the drugs found in the vehicle did not prejudice DeMeulenaere. In addition, DeMeulenaere failed t o show that his counsel’s per formance prejudiced him because, as the di strict court observed, he “rec eived a considerable benefit . . . [b]y agreeing to ple ad guilty and not pursue a mo tion to suppress.” R. Vol. 1,

1 Although the district court did not rely on this ground, we ma y deny a COA on a ground that is supported by the record but not relied on by the district court. See Davis v. Roberts , 425 F.3d 830, 8 34 (10th Cir. 2005).7 at 125. Absent the plea agreemen t, DeMeulenaere faced addition al drug counts and a much longer sentence. Therefore , having concluded that counsel ’s performance did not prejudice DeMeulenaere, we need not address whether DeMeulenaer e can establish that his counsel’s performance was deficient. See Orange , 447 F.3d at 797 n.5 (stating that if the court decides counsel’s pe rformance did not prejudice the d efendant, resolution of the performance issue is not required). DeMeulenaere also contends tha t the district court erred in re solving his § 2255 motion without an evidentiary h earing. “We review the denial o f an evidentiary hearing in a § 2255 proceeding for an ab use of discretion, and we find no abuse of discretion.” United States v. Clingman , 288 F.3d 1183, 1187 n.4 (10th Cir. 2002) (citation omitted). After reviewing DeMeulenaere’s c ombined applica tion for a COA a nd opening brief and the record on appeal, w e agree with the district cour t and determine that no reasonable jurist could conclude t hat DeMeulenaere made a subst antial showing of a denial of his constitutional righ ts. Therefore, he has failed to establish his entitlement to a COA. IV. Denial of Motion to Alt er or Amend Judgment DeMeulenaere also seeks a COA to appeal the order denying his m otion to alter or amend the judgment, which assert ed that the district court erro neously found that he was arrested and his vehicle was sear ched at the scene of the traff ic stop. He contended that because he was not arrested and hi s vehicle was not searched at the scene, the district court erred in concluding that t he search of his vehicle was le gal and that his counsel was not ineffective.8 Before we may consider the mer its of the postjudgment motion, “ we must determine whether [DeMeulenaere’ s] claims—although not characte rized as such—seek collateral relief under 28 U.S.C. § 2255.” United States v. Springer , 875 F.3d 968, 971 (10th Cir. 2017), cert. denied , 138 S. Ct. 2002 (2018). The m otion was characterized as filed under Rules 59(e) and 60( b), but “[i]t is the relief soug ht, not [the] pleading’s title, that determines whether the pl eading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). We c onclude that the mot ion to alter or amend is properly characterized as an atte mpt to file a second or succes sive § 2255 motion because it “attack[ed] the federal court’ s previous resolution of a cla im on the merits ,” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). An alle gation “that the court erred in denying habeas relief on the merits is effectively indistinguishable fr om alleging that the movant is, under the substantive provision s of the statutes, entitled to habeas relief.” Id. ; accord In re Pickard , 681 F.3d 1201, 1206 (10th Cir. 2012) (“[A] Rule 60(b) motion is actually a second-or-successive petition if t he success of the motion depe nds on a determination that the court had incorrectly ru led on the merits in the habea s proceeding.”); cf. Peach v. United States , 468 F.3d 1269, 1272 (10th Cir. 2 006) (per curiam) (holding a Rule 60(b) motion claiming the district cour t failed to consider a claim r aised in the § 2255 motion was not a second or succe ssive § 2255 motion). 2

2 DeMeulenaere’s motion seeking re consideration of the order den ying his § 2255 motion invoked Rule 59(e) as we ll as Rule 60(b). We have state d that “Rule 59(e) motions are subject to the same c haracterization” as second or successive petitions as are Rule 60(b) motions. United States v. Pedraza , 466 F.3d 932, 933 (10th Cir. 2006).9 “[A] second or successive § 22 55 motion cannot be filed in dis trict court without approval by a panel of this court.” Nelson , 465 F.3d at 1148; see also 28 U.S.C. § 2255(h) (requiring a second or s uccessive § 2255 motion to be authorized by the circuit court). “[I]f the prisoner’s pleading must be treated as a sec ond or successive § 2255 motion, the district court does not even have ju risdiction to d eny the relief sought in the pleading.” Nelson , 465 F.3d at 1148. C onsequently, the district court had juris diction to “either dismiss the motion, or i f it [was] in the best interest s of justice, transfer the motion to the circuit court for authorization.” Springer , 875 F.3d at 972. Ordinarily, our COA inquiry follo wing a district court’s merits decision “focus[es] on whether ‘reasonable jurists wo uld find the district court’s assessment of the constitutional claims d ebatable or wrong.’” Id. at 981 (quoting Slack , 529 U.S. at 484). In the alternative, “had the dist rict court dismissed [DeMeulen aere’s] unauthorized second or successive petition fo r lack of subject matter jurisd iction, we could proceed according to the two-part te st for procedural rulings.” Id. Under that test, a prisoner must show both “that jurists o f reason would find it debatable whether the petition states a valid claim of the denial o f a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedu ral ruling.” Slack , 529 U.S. at 484. Here, however, the distr ict court did not treat DeMeul enaere’s motion to alter or amend the judgment as a § 2255 m otion and, without circuit-cour t authorization, denied it on the merits. “[T]hat procedural posture provides a basis for denial of a COA” as a “plain procedural bar.” Springer , 875 F.3d at 981; see also id. (stating “we may deny a10 COA if there is a plain procedur al bar to habeas relief, even t hough the district court did not rely on that bar” (interna l quotation marks omitted)). “Under these circumstances, reas onable jurists could not debate whether [DeMeulenaere] could prevail on appeal when the district court lacked jurisdiction to issue a final order. Based on th is ‘plain procedural bar,’ we deny [DeMeulenaere’s] request for a COA.” Id. at 983. V. Conclusion We deny DeMeulenaere’s request for a COA to appeal the order d enying his § 2255 motion. We also deny hi s request for a COA to appeal th e motion to alter or amend, with instructions to the district court to vacate its or der denying the motion. We further deny DeMeulenaere’s IFP request. This matter is dismis sed.

Entered for the Court
Mary Beck Briscoe Circuit Judge