* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 2 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. STEVEN BLAIR SPEAL,

Defendant-Appellant.

_______________________ UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. LATONIA EDNA BENSON,

Defendant-Appellant. Nos. 00-3202 & 00-3362 (D.C. No. 00-CV-3053-MLB)

(D. Kan.)

No. 00-3277 (D.C. No. 00-CV-3101) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument.
Appeal No. 00-3202 In appeal No. 00-3202, Steven Blair Speal, a federa l inmate appearing pro se, seeks a certificate of appealability (COA) in o rder to appeal the district court’s order dismissing his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). Because Speal has not “made a substantial showing o f the denial of a constitutional right,” we deny his request for a COA and dismiss this appeal. Id

. § 2253(c)(2). Speal was convicted of conspiracy to distribute a c ontrolled substance in violation of 21 U.S.C. § 846; possession with intent to distribute methamphetamine and marijuana in violation of 21 U. S.C. § 841(a)(1); possession of a firearm during a drug trafficking crime in vio lation of 18 U.S.C. § 924(c)(1); and two counts of possession of a firearm in violat ion of 18 U.S.C. § 922(g)(1). He was sentenced to life imprisonment without possi bility of parole. The facts surrounding Speal’s arrest and conviction are set forth in United States v. Speal ,-3-

No. 97-3344, 1998 WL 886757 (10th Cir. Dec. 21, 199 8) (unpublished), in which this court affirmed his conviction and sentence on direct appeal. In his § 2255 motion, Speal claims ineffective assi stance of counsel based on counsel’s failure (1) to move for dismissal of f irearms counts VI and VII on the ground that they were multiplicitous of firearmCount V; (2) to move for severance after the admission of statements made byhis non-testifying codefendant, which he claims were hearsay in violation of Lilly v. Virginia , 527 U.S. 116 (1999), and incriminated him in violation of Bruton v. United States , 391 U.S. 123 (1968); (3) to object to an allegedly factual mistake in the prosecutor’s closing argument; (4) to raise on appe al a claim that there was insufficient evidence to convict him; and (5) to cl aim that the prosecution failed to meet its burden of proof because the jury was no t required to make a finding that his conduct affected interstate commerce. In a thorough order, the district court examined ea ch of Speal’s claims and concluded that he was not entitled to relief. Thi s court has considered the parties’ briefs, the district court’s order, and th e entire appellate record. Our review demonstrates that the issues Speal seeks to raise on appeal are not debatable among jurists, deserving of further proce edings, or subject to a different resolution on appeal. See Slack v. McDaniel , 529 U.S. 473, 484 (2000). Only one issue is even deserving of further comment: No dou bt because Speal’s interstate-4-

commerce argument was vague and untethered to any f acts, the district court did not squarely address his assertion that an interstate commerce nexus is an essential element of his § 841(a) convictions. Nev ertheless, this contention is without merit. This court has held that § 841(a)(1 ) is within Congress’s power to regulate interstate commerce. See United States v. Wacker , 72 F.3d 1453, 1475 (10th Cir. 1995). Accordingly, a conviction under § 841(a) does not require individualized proof that the crime substantially a ffected interstate commerce. See United States v. Lane , 883 F.2d 1484, 1492 (10th Cir. 1989) (“When Congress enacts a statute under its commerce power, it is not constitutionally obligated to require proof beyond a reasonable doub t that each individual act in the class of activities regulated had an effect on interstate commerce”); cf. United States v. Janus Ind. , 48 F.3d 1548, 1556 (10th Cir. 1995) (noting that drug trafficking laws under 21 U.S.C. §§ 801 et seq . require no finding of individualized interstate commerce because these laws regulate a class of intrastate activities that per se affect interstate commerce). Additionally, Speal has raised for the first time o n appeal claims arising under Apprendi v. New Jersey , 530 U.S. 466 (2000), claiming that the drug quantity in his § 841 charges were not sufficientlyspecified in the indictment nor made an essential element of the charges in the jury instructions. This court has not yet determined whether Apprendi is retroactively available in an initial habeas-5-

motion. See Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001). Similarly, we have not considered whether a failure to raise Apprendi on direct appeal bars habeas review under the rules governing procedural defaults. However, because Speal did not raise any sort of ch allenge regarding drug quantity in his habeas motion below, we decline to address it here. See Smith v. Sec’y of N.M. Dep’t of Corr. , 50 F.3d 801, 814 n. 22 (10th Cir. 1995) (noting that in the absence of extraordinary circumstances this court will not consider issues raised for the first time on appeal). Because Speal has not made a substantial showing of the denial of a constitutional right, he is not entitled to a COA. Accordingly, this court DENIES Speal’s request to proceed in forma pauperis , DENIES his request for a COA, and DISMISSES this appeal.
Appeal No. 00-3362 In his companion appeal No. 00-3362, Speal appeals the district court’s denial of his motion to proceed in forma pauperis in the appeal of his § 2255 motion. The district court concluded that Speal ha d failed to comply with the requirements of 28 U.S.C. § 1915(a)(1) and (2) and it certified in writing that the appeal was not taken in good faith. See 28 U.S.C. § 1915(a)(3) and Fed. R. App. 24(a)(3). Contrary to Speal’s content ion, the district court did not deny his in forma pauperis request under the Prison Litigation and Reform Actof-6-

1995. Because the district court applied the corre ct legal standards and we find no error with its finding that Speal’s § 2255 appea l was not taken in good faith, we affirm.
Appeal No. 00-3277 In this related appeal, Speal’s co-defendant, Laton ia E. Benson, a federal inmate appearing pro se, also seeks a COA in order to appeal the district court’s order dismissing her § 2255 motion. Benson was co nvicted of conspiracy to distribute a controlled substance in violation of 2 1 U.S.C. § 846; and possession with intent to distribute methamphetamine and marij uana in violation of 21 U.S.C. § 841(a)(1). Her conviction and sentence were affirmed in United States
v. Benson , No. 97-3354, 1998 WL 886763 (10th Cir. Dec. 21, 1 998) (unpublished). In her § 2255 motion, she claims (1) that her trial counsel was ineffective because he failed (a) to move for suppression of he r post-arrest statements on the grounds that she had requested an attorney; and (b) to object when the district courts considered her failure to testify at sentenc ing when it denied her request for a “minor participant” sentence reduction under U.S. Sentencing Guidelines Manual § 3B1.2; (2) that her appellate counsel was ineffective for failing to raise these ineffective assistance claims on direct appea l; and (3) that the prosecution failed to sustain its burden of proof because the j ury instructions did not require-7-

the jury to find an interstate commerce nexus as anessential element of the § 841(a) charges against her. Again, the district court addressed and rejected ea ch of Benson’s arguments in a thorough order. While it did not squarely add ress Benson’s interstate commerce claim, we have already explained above whythis issue is without merit. It is also worth noting that, with respect to Benson’s claim regarding to her refusal to testify at sentencing in support of her requested sentence reduction, the district court correctly anticipated this court’s recent holding in United States
v. Constantine , No. 00-2115, 2001 WL 909010 (10th Cir. Aug. 13, 2 001). In that case, this court held that the sentencing court’s d enial of a requested downward departure based on the defendant’s failure to carryhis burden of proof as a consequence of his silence at sentencing is not a v iolation of the defendant’s Fifth Amendment right to remain silent under Mitchell v. United States , 526 U.S. 314 (1999). Id . at *5. As did her co-defendant, Benson also raises Apprendi claims for the first time on appeal, asserting that the drug quantities in the § 841 charges against her were not sufficiently specified in the indictment o r jury instructions. For the same reasons set forth in our resolution of Speal’s appeal No. 00-3202, we decline to address these claims because Benson did not raise any sort of challenge regarding drug quantity in her habeas motion. See Smith , 50 F.3d at 814 n. 22.-8-

Upon review of the record and the parties’ briefs, this court finds that the issues Benson seeks to raise on appeal are not debatable among jurists, deserving of further proceedings, or subject to a different resolution on appeal. See Slack , 529 U.S. at 484. Accordingly, this court DENIES Benson’s request to proceed in forma pauperis , DENIES her request for a COA, and DISMISSES this appeal.

Entered for the Court

Wade Brorby Senior Circuit Judge