UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. DON MARCUS GIBLER, Defendant–Appellant. No. 09-3380 (D.C. Nos. 2:08-CV-02524-CM and 2:06-CR-20048-CM-1) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , McKAY , and LUCERO , Circuit Judges.

Don Marcus Gibler requests a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2255 habeas petition. 1 In a brief filed pursuant

to Anders v. California , 386 U.S. 738 (1967), Gibler’s counsel states that there are no legitimate issues for presenta tion on appeal and moves for l eave to withdraw. We grant counsel’s motion to withdraw, deny a COA, and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1 Although Gibler did not file a formal request for a COA, his notice of appeal constitutes such a request under Fed. R. App. P. 22(b)(2). FILED United States Court of Appeals Tenth Circuit 

### August 16, 2010

Elisabeth A. Shumaker Clerk of Court- 2 - I In September 2006, a federal grand jury indicted Gibler and eight co-defendants on twenty-seven counts related to the trafficking of illegal dr ugs. The government filed an enhancement information pursu ant to 21 U.S.C. § 851, seeking to subject Gibler to an increased sentence based on a prior felony conviction for possession of cocaine. After trial began, Gibler entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with the government. He agreed to plead guilty to conspiracy to manufacture, distribute, or possess with intent to distribut e more than fifty grams of co caine base. In exchange, the government dropped the remaining charges agai nst him. Rather than face a potential life sentence, Gibler was sentenced to 324 months’ imprisonment.

Gibler then filed a 28 U. S.C. § 2255 habeas petition arguing that his defense counsel was ineffective for failing to inve stigate whether his prior conviction for possession of cocaine actually qu alified him for an enhancement under 21 U.S.C. § 851. 2 Gibler alleged that if counsel had adequately informed him of the statute’s definition of “serious drug offense,” he would not have pled guilty. 3 According to Gibler, counsel’s

2 Gibler also alleged that his attorney failed to investigate whether a prior conviction for aggravated robbery qualified him fo r a sentencing enhancement under § 851. However, the government’s information only cited Gibl er’s prior conviction for possession of cocaine, and thus Gibler could not have receive d a sentencing enhancement under § 851 due to a prior convicti on for aggravated robbery. See id.

3 Section 851 does not actually contain the phrase “serious drug offense.” Rather, § 841(b)(1)(A) provides for an increased sentence if an i ndividual commits an offense Continued . . .- 3 - failure to inform him of the true nature of the sentencing enhanc ement rendered his guilty plea involuntary. After denying a government motion to en force the plea agreement’s waiver of habeas remedies, the district court granted Gi bler’s request for an evidentiary hearing and appointed counsel. At th e evidentiary hearing, Gibl er abandoned the arguments contained in his petition, agreeing with his ha beas counsel’s conclusi on that § 851 did not present a viable avenue for relief. Gibler in stead argued that trial counsel was ineffective for failing to explain that he c ould contest certain facts related to his offense level. After hearing testimony from Gibler and trial counsel, the district court c oncluded that Gibler’s new arguments fell within the scope of his appe llate waiver and that they did not warrant

relief. The court denied Gible r’s habeas petition and his request for a COA. This appeal

followed.

II Because the district court did not grant him a COA, Gibler may not appeal its decision absent a grant of a COA by this c ourt. 28 U.S.C. § 2253(c)(1)(B). We may issue a COA only if “reasonable jurists could debate whether (or, for that matter, agree

involving fifty grams or more of a substanc e containing cocaine base “after a prior conviction for a felony drug offense has become final” (emphasis added). Because §§ 841 and 851 are interre lated, we liberally construe Gi bler’s reference to the phrase “serious drug offense” to refer to the phrase “f elony drug offense” in § 841(b)(1)(A). See Hunt v. Uphoff , 199 F.3d 1220, 1223 (10t h Cir. 1999) (pro se litigants’ filings must be liberally construed).- 4 - that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encour agement to proceed further.” Slack v.

McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). In his briefing to this court, Gibler does not challenge the district court’s

conclusion that the evidence presented at his evidentiary hearing was insufficient to warrant habeas relief. Instead, he a sserts for the first time that habeas counsel was ineffective for failing to make other claims c oncerning the validity of his sentence. We must reject Gibler’s argument because a ha beas petitioner has no constitutional right to

effective assistance of counsel in postconviction proceedings. See Pennsylvania v. Finley , 481 U.S. 551, 555 (1987). 4

III

Because the district court’s resolution of Gibler’s § 2255 petiti on is not subject to

debate and the issues Gibler seeks to raise on appeal are not adequate to deserve further proceedings, we DENY Gibler’s request for a COA and DISMISS this appeal. We

4 In a related vein, we re mind counsel that Anders “established a prophylactic framework that is relevant when, and only when , a litigant has a previously established constitutional right to counsel.” Id. Because there is no constitutional right to effective assistance of counsel in habeas cases, counsel for a habeas petitioner need not rely on the Anders procedure.- 5 - GRANT counsel’s motion for leave to withdraw.

Entered for the Court

Carlos F. Lucero Circuit Judge