UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GERMAIN HARRIS, Defendant - Appellant. No. 15-5084 (D.C. Nos. 4:14-CV- 00745-GKF-PJC and 4:12-CR-00037-GKF-1) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before KELLY , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ Germain Harris seeks a cert ificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion. 1 We deny a COA and dismiss the appeal.
I As part of a murder inve stigation, police witnessed a suspect enter and exit an auto shop owned by Harris. Police obtained a search warra nt based on an affidavit

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Harris filed a notice of appeal from th e district court judg ment. Because he may not appeal from a final order in a § 2255 proceeding without a COA, § 2253(c)(2), and because the district court did not grant a COA, we construe Harris’ notice of appeal as a request for a COA. Fed. R. App. P. 22(b)(2). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court-2- stating that a firear m used in the murder or keys to the getaway vehicle may be located inside the shop. Th e ensuing search did not uncover evidence related to the murder. But the police did find cocaine, co caine base, items used to manufacture and distribute cocaine base, a pi stol, and ammunition. Harri s was indicted on several charges. He moved to suppress evidence found duri ng the search, arguing the officer’s probable cause affidavit did not provide a sufficient nexus between the alleged criminal activity and the shop. The court denied his motion. A jury convicted Harris of drug manufacture, possess ion, and distributi on charges, and of being a felon in possession of a firear m. He was sentenced to 180 months’ imprisonment. Harris appealed and this court affi rmed. United States v. Harris, 735 F.3d 1187, 1194 (10th Cir. 2013). Harris then filed a motion for relief under § 2255, which the district court denied. This request for a COA followed.
II We may issue a COA to app eal a final order denying § 2255 relief “only if the applicant has made a substan tial showing of the denial of a constitutional right.” § 2253(c)(2). A “substantia l showing” exists if “reas onable jurists could debate whether (or, for that matter , agree that) the petition shoul d have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Harris advances claims of in effective assistance of tria l and appellate counsel. To prevail, he must make a substantial showing that hi s counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by-3- the Sixth Amendment” and that “ the defici ent performance prejudi ced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is prejudicial if there is a “reasonable probability that, bu t for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Harris complains the district court shoul d have granted an evidentiary hearing so that he could demonstrate trial c ounsel failed to pursue testimony from an exculpatory witness. He clai ms the witness would have te stified that Harris was not aware of the contraband or dr ug activities occurring in th e auto shop, and identified another individual responsible for that contraband. Harris fails to directly identify the witness who would provide this testim ony, but construing hi s pro se pleadings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Ci r. 1991), it appears likely Harris is referring to Alonzo Johnson—the su spect that entered th e auto shop leading police to seek the search warrant. However, the district court de termined that trial counsel’s decision not to in terview Johnson was reasonabl e given the circumstances as they existed at the time of the challenged conduct. In his request for a COA, Harris offers no argument challenging this de termination as erroneous, nor does he explain how an evidentiary hear ing would change the outcome. 2 Thus, he has not

2 In a seemingly related argument, Ha rris suggests trial counsel failed to conduct relevant discovery a nd failed to interview a witn ess whose post-trial affidavit demonstrates a reasonable probability that his testimony woul d have changed the outcome of the trial. Ho wever, Harris does not identify what evidence counsel should have pursued. Nor does he indicate wh at the witness’s affi davit states, what the testimony would have been, or why it li kely would have changed the outcome of trial. Without more information, we are una ble to conclude that counsel’s failure to investigate was deficient or prejudicial. Similarly, Harris argues that appellate-4- made a substantial showing that counsel was ineffectiv e for failing to interview Johnson. Harris also contends appella te counsel was ineffective for failing to object to the trial court’s application of the Armed Career Criminal Act (“ACCA”). The court concluded ACCA applied base d on three drug convictions fo r drug sales Harris made to undercover officers on three separa te occasions over a ten day period. 3 Harris argues that these convictions all resulted from the same “scheme and plan,” and thus should have been treated as one offens e for sentencing purposes. For support, Harris invokes United States v. Mohammed, 150 F. App’x 887 (10th Cir. 2005) (unpublished), in which the court addresse d whether prior convictions are “related” under U.S.S.G. § 4A1.2. Mohammed, 150 F. App’x at 890. However, in United States v. Delossantos, 680 F. 3d 1217 (10th Cir. 2012), we observed that § 4A1.2 is irrelevant in the ACCA context. Delossa ntos, 680 F.3d at 1220-21 n.3. We further held that multiple drug sales to undercove r agents may be counted as separate convictions so long as the defendant “had a meaningful opportunity to cease his illegal conduct.” Id. at 1220. The district court held that Harris had the requisite meaningful opportunity between his offenses , and he does not argue to the contrary

counsel filed the direct appeal before receiv ing a full trial transcri pt. But he does not explain how obtaining the full trial transcri pt before filing would have changed the outcome.

3 Harris also argued below that his trial counsel was ineffec tive for failing to object to ACCA application. But, as the district court not ed, Harris’ trial counsel did object to Harris’ classification as an ar med career criminal, and the trial court rejected the very argument Harris made in his § 2255 motion.-5- in his request for a COA. Thus, he has not made a substantial showing that appellate counsel was ineffective for failing to challenge the se ntencing calculation on direct appeal. Finally, Harris argues the district court improperly failed to order his trial or appellate counsel to respond to allegations raised in Harri s’ sworn affidavit. He contends that absent a res ponse, his allegations must be deemed admitted under Fed. R. Civ. P. 36. Even if we were to apply Rule 36 to this § 2255 proceeding, see § 2255 Rule 12, and construe Harris’ affi davit as a request fo r admission, Harris’ argument fails because the district court did consider a responsive affidavit from Harris’ trial counsel. Moreover, Harris does not identify what sworn statements the district court allegedly disc redited. Thus, Harris has not made a substantial showing that he was denied a constitutional right.
III
We DENY a COA and DISMISS the appeal. Harris’ motion to proceed in forma pauperis is GRANTED

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Entered for the Court

Carlos F. Lucero Circuit Judge