* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 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

August 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BILLY JOE HILL,

Defendant-Appellant.

No. 10-5012

(D.C. Nos. 4:08-CV-00110-CVE-FHM

and 4:03-CR-00071-CVE-1)

(N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,

Circuit Judge.

Billy Joe Hill, a convicted felon, pawned a shotgun. When he later tried to

reacquire it, he indicated on a firearms transaction record that he had no felony

convictions. He was later arrested and tried before a jury, where he represented

himself with stand-by counsel. The jury convicted him of one count of being a

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felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one

count of making a false statement to obtain a firearm, in violation of 18 U.S.C.

§ 922(a)(6). A third count, which arose from an earlier arrest for possession of a

similar firearm, was dismissed after the jury failed to reach a verdict. Mr. Hill

was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(ACCA), and the 2004 version of the United States Sentencing Guidelines,

receiving concurrent sentences of 212 months of imprisonment on count one and

120 months on count two, and concurrent five- and three-year terms of supervised

release. 

After we affirmed his conviction and sentence on direct appeal, see United

States v. Hill, 200 F. App’x 783 (10th Cir. 2006), Mr. Hill filed a motion under

28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He advanced thirty

grounds for relief, many couched in terms of ineffective assistance of appellate

counsel for failing to raise them on direct appeal. The district court grouped the

grounds into nine categories: (1) the court compelled Mr. Hill to proceed without

counsel; (2) the court lacked subject matter jurisdiction; (3) the court improperly

enhanced his sentence using his prior convictions; (4) he was denied his right to a

speedy trial; (5) there was insufficient evidence, or the government used false

evidence, to convict him; (6) he was denied his right to a fair trial; (7) appellate

counsel failed to communicate with him; (8) he was subject to an unconstitutional

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search with respect to count three; and (9) trial counsel and the court failed to

advise him of his possible sentence.

In a detailed and thorough decision, the district court denied relief. The

court concluded that Mr. Hill had knowingly, voluntarily, and intelligently

decided to proceed at trial without counsel after his court-appointed attorney

moved to withdraw because she could not ethically present certain evidence

Mr. Hill wished to use. Because Mr. Hill’s claim that he was forced to proceed

pro se at trial was meritless, the court concluded that appellate counsel was not

ineffective for failing to raise it on direct appeal. See United States v. Cook,

45 F.3d 388, 393 (10th Cir. 1995) (“If the omitted issue is without merit,

counsel’s failure to raise it does not constitute constitutionally ineffective

assistance of counsel.”) (quotation omitted). The court made a similar

determination with respect to many of the other grounds Mr. Hill raised—that the

grounds were meritless, so there was no ineffective assistance of counsel for

failing to raise the ground on appeal. The court also ruled that a number of

grounds for relief not couched in terms of ineffective assistance of appellate

counsel were procedurally barred because they could have been raised on direct

appeal, and Mr. Hill had failed to show cause for that failure and prejudice or a

fundamental miscarriage of justice. See United States v. Cox, 83 F.3d 336, 341

(10th Cir. 1996). The court further determined that some of Mr. Hill’s claims

were barred because this court had already considered and decided them adversely

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to Mr. Hill, and that other claims failed because they were either vague or

conclusory.

In order to appeal the district court’s decision, Mr. Hill must obtain a

certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(B). The issuance of a

COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255

motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA may be issued

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). For those claims the district court

denied on the merits, Mr. Hill must demonstrate “that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). 

For those claims the district court denied on a procedural ground, Mr. Hill must

show “that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and . . . whether the district

court was correct in its procedural ruling.” Id.

Having reviewed the record and the controlling law, and liberally

construing Mr. Hill’s pro se filings, see Yang v. Archuleta, 525 F.3d 925, 927 n.1

(10th Cir. 2008), we conclude that, for substantially the same reasons set forth by

the district court in its January 22, 2010, Opinion and Order, Mr. Hill has not met

the requirements for a COA. The district court’s analysis was sound and

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well-reasoned, and we need not reiterate it. However, we briefly address one

misunderstanding that pervades Mr. Hill’s appellate filings. 

Under Okla. Stat. tit. 21, § 51.1B, a felony conviction that is more than ten

years old may not be used to enhance a later felony sentence. Mr. Hill claims that

this state statute forecloses the use of a 1975 state conviction for armed robbery

as one of the three predicate felonies necessary to enhance his federal sentence

under the ACCA. But the Oklahoma statute has no bearing on the use of that

conviction to enhance a sentence for a federal crime under the ACCA. The

ACCA is federal law and contains no temporal limitation on predicate felonies, as

noted in United States v. Lujan, 9 F.3d 890, 893 (10th Cir. 1993), where we

rejected the argument that “prior [state] convictions should be eliminated from

consideration under the ACCA because they are ancient.” And although

§ 4A1.2(e) of the Sentencing Guidelines contains a ten-year limitation on prior

sentences analogous to the Oklahoma statute, it is not applicable to sentence

enhancements under the ACCA. See U.S. Sentencing Guidelines Manual § 4B1.4

appl. n.1 (2004); Lujan, 9 F.3d at 893.

For the foregoing reasons, we DENY Mr. Hill’s application for a certificate

of appealability and DISMISS this appeal.

Entered for the Court

Wade Brorby

Senior Circuit Judge

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