UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHRISTOPHER HOLYFIELD, Defendant - Appellant. No. 18-1236 (D.C. Nos. 1:17-CV-02989-MSK and 1:00-CR-00439-MSK-MEH-4) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BACHARACH , MURPHY , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, 1 Christopher Holyfield seeks a certificate of appealability (COA) to appeal the district c ourt’s order denyi ng his 28 U.S.C . § 2255 motion. For the reasons discussed below, we deny Holyfield’s COA request an d dismiss the appeal. We also deny his motion to proceed in forma pauperis (I FP). Background In 2003, a jury convicted Holyfie ld of conspiring to distribute and possessing with intent to distribute more t han 50 grams of cocaine. At the time of his 2005

* This order isn’t binding preced ent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Holyfield appears pro se , we liberally construe his fi lings. See Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009). But we won’t act as his advocate. See id. FILED United States Court of Appeals Tenth Circuit 

### October 12, 2018
Elisabeth A. Shumaker Clerk of Court2 sentencing hearing, Holyfield had at least two prior felony con victions for crimes involving controlled substances: (1) a 1993 California convicti on for transporting cocaine and (2) a 1998 Californi a conviction for possessing mar ijuana for sale. In light of these convictions, the t rial court sentenced Holyfield to life in prison. See 21 U.S.C. § 841(b)(1)(A) (subjec ting offenders with “two or mor e prior convictions for a felony drug offense” to ma ndatory life sentence for certa in drug crimes). Holyfield appealed, and this court affirmed. United States v. Holy field (Holyfield I) , 481 F.3d 1260, 1261 ( 10th Cir. 2007). Holyf ield then sought rel ief under § 2255, arguing, among other things, that his life sentence violated th e Sixth Amendment. The district court denied Holyf ield’s § 2255 motion, and this c ourt again affirmed.
See United States v. Ho lyfield (Holyfield II) , 703 F.3d 1173, 1174 (10th Cir. 2013). Almost four years later, Calif ornia adopted Proposition 64. See Cal. Health & Safety Code § 11359. “Proposition 64 worked a sea-change in the way California approaches the growth and use of marijuana” by, a mong other thi ngs, “reduc[ing] the criminal penalties” for certa in marijuana-related offenses . People v. Xiao Dong Lin , 236 Cal. Rptr. 3d 818 , 821–22 (Cal. App. Dep’t Super. Ct. 2018) ; see also People v.
Smit , 234 Cal. Rptr. 3d 554, 555–56 (Cal. Ct. App. 2018) (explainin g that Proposition 64 “generally” reduced offense of possessing mariju ana for sale from felony to misdemeanor). Propos ition 64 also “create[d] a mechan ism for convicted defendants to seek re-sentencing based on the lesser penalties in the proposition.” Xiao Dong Lin , 236 Cal. Rptr. 3d at 823.3 Holyfield applied for relief und er Proposition 64, and on Septe mber 22, 2017, a California state court reduced his 1998 conviction from a fel ony to a misdemeanor. Holyfield then filed th e instant § 2255 petition, 2 arguing that (1) his 1998 conviction no longer constitutes a “felony dr ug offense” for purposes of § 841(b)(1)(A), and (2) he is therefore no longer s ubject to § 841(b)(1)(A)’s manda tory life sentence. The district court denied Holyfield’s motion and his request for a COA. Holyfield now seeks a COA from this court so h e can appeal the district court ’s order denying his § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). Analysis To obtain a COA, Holyfield must “ma[k]e a substantial showing o f the denial of a constitutional ri ght.” § 2253(c)(2). And to make that show ing, he must “demonstrate that reasonable juri sts would find the district co urt’s assessment of [his] constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Here, Holyfield argues that beca use a California state court re duced his 1998 conviction for possessing marijuan a for sale from a felony to a misdemeanor, he no longer has “two or more p rior convictions for a felony drug offense.” § 841(b)(1)(A)

2 Although this is Holyfield’s se cond § 2255 motion, it isn’t su bject to § 2255(h)’s authoriz ation requirement. Compare § 2255(h) (requiring authorization from “appropriate court of appeals” before defendant can file “ second or successive” § 2255 motion), with In re Weathersby , 717 F.3d 1108, 1110–11 (10th Cir. 2013) (explaining that movant’s second § 2255 motion wasn’t “second o r successive” for purposes of § 2255(h) because sta te court didn’t “vacate [movan t’s] convictions until after his first § 2255 proceedings were concluded,” and basis f or defendant’s second motion therefore “did not exist when” movant filed initial § 22 55 motion).4 (emphasis added). According to H olyfield, reasonable jurists co uld debate whether allowing his life sentence to rem ain in place under these circu mstances “violates due process and subjects him to cru el and unusual punishment.” Aplt . Br. 7. Thus, he concludes, he is entitled to a COA. See Slack , 529 U.S. at 484. But Holyfield didn’t invoke the Due Process Clause or the Eight h Amendment in his § 2255 motion. Instead, he advanced an issue of statutor y interpretation. Specifically, he asserted that possession of marijuana for sale no longer satisfies 21 U.S.C. § 802(44)’s definition of the term “felony drug offense” because, after Proposition 64, possession of mar ijuana for sale is no longer “ punishable by imprisonment for more than [one ] year.” R. vol. 2, 41 (quoting § 802(44)). Holyfield was free to advance this statutory claim in district court. But he is only entitled to a COA to appeal t he district court’s resolutio n of that claim if he can “ma[k]e a substantial show ing of the denial of a constitutional right.” § 2253(c)(2) (emphasis added); see also United States v. Taylor , 454 F.3d 1075, 1078–79 (10th Cir. 2006) (“[N]o matter how cle arly the § 2255 movant can show that the district court erred in denying a statuto ry claim,” movant isn’t “entitl ed to a COA” unless he or she makes substantial showin g of denial of constitutional ri ght.). Thus, to the extent Holyfield ar gues reasonable jurists could d isagree with the district court’s conclusion that his 1998 conviction continues to constitute a conviction for a “felony drug o ffense” as § 802(44) defines tha t term, he isn’t “entitled to a COA” on that basis. Taylor , 454 F.3d at 1079. And to the extent Holyfield instead attempts to argu e that his sentence violates his due-process and5 Eighth Amendment rights, we dec line to address those arguments because Holyfield failed to advance them below. See United States v. Viera , 674 F.3d 1214, 1216, 1220 (10th Cir. 2012) (citi ng “our general rule against considering issues for the first time on appeal” and declining to addr ess arguments for COA that pro se applicant failed to raise in distr ict court). Accordingly, we deny Holyfield’s request for a COA and dismiss this matter. We also deny his motion to proceed IFP on appeal. See Lister v. Dep’t of Treasury , 408 F.3d 1309, 1312 ( 10th Cir. 2005) (“[I] n order to succeed on a motion to proceed IFP, the movant must show a fin ancial inability to pay the requ ired filing fees, as well as the existence of a reas oned, nonfrivolous argument on t he law and facts in support of the issues ra ised in the action.”).

Entered for the Court
Nancy L. Moritz Circuit Judge