* This order and judgment is not binding precedent, e xcept under the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

### JAN 29 2003 

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

Plaintiff - Appellee,

v. CARL LANEILL BROWN,

Defendant - Appellant. No. 02-3166 D.C. No. 01-CV-3058-RDR and 98-CR-40034-01-RDR (D. Kansas)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , Circuit Judges.

After examining the appellant’s brief and the appel late record, this panel has determined unanimously that oral argument wouldnot materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Defendant-appellant Carl Laneill Brown, a federal i nmate proceeding pro se, seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255-2-

motion. Because he has failed to make “a substanti al showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his application for a certificate of appealability (“COA”) and dismiss th e appeal. Mr. Brown was convicted of conspiracy to commit a c arjacking, carjacking, use of a firearm during and in relation to a crime of violence, carrying a firearm during and in relation to a crime of violence, and possession of a firearm by a felon. United States v. Brown , 200 F.3d 700, 703 (10th Cir. 1999), cert. denied , 528 U.S. 1178 (2000). His conviction was affirmed on direct appeal. Id. at 710. The parties are familiar with the facts, and we do not repeat them here. Mr. Brown filed his § 2555 motion in the district c ourt, claiming that (1) his sentencing offense level should not have be en enhanced for bodily injury to the victim and (2) his trial attorney was consti tutionally ineffective for (a) failing to challenge the prosecution in federal , rather than state, court; (b) failing to argue for a downward departure; (c) unsuccessfully challenging the sentencing disparity with his co-defendant; (d) failing to seek acquittal based on insufficient evidence; (e) failing to seeka downward departure for a non-leadership role in the carjacking conspiracy; ( f) failing to cross-examine a prosecution witness more vigorously; and (g) failin g to submit voir dire questions regarding gang affiliation and activities. Mr. Bro wn also filed two motions seeking leave to amend his § 2255 motion, one to in clude an argument under-3-

Apprendi v. New Jersey , 530 U.S. 466 (2000), and the other to add three n ew claims. The district court, after a thorough analysis of ea ch of Mr. Brown’s claims, denied the § 2255 motion, ruling that Mr. Brown hadbeen properly sentenced and that his counsel had not been constitutionally inef fective. The district court also denied Mr. Brown’s two motions to amend. It ruled that both motions were untimely filed and, because they sought to add enti rely new claims and theories of relief, could not relate back to Mr. Brown’s earlier, timely motion. See United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10th Cir. 2000). It further ruled that the Apprendi claim and three other new claims were baseless. In his application for COA to this court, Mr. Brownraises the same issues raised in his § 2255 motion. We agree with the district court’s analyses of these claims, and conclude that its disposition of Mr. Brown’s § 2255 motion is neither deserving of further proceedings, nor de batable among jurists of reason, nor subject to different resolution on appeal. Acc ordingly, Mr. Brown has failed to make the required substantial showing of the den ial of a constitutional right and is not entitled to a COA. See Slack v. McDaniel , 529 U.S. 473, 483-84-4-

(2000); 28 U.S.C. § 2253(c). This court therefore DENIES Mr. Brown’s request for a COA and DISMISSES this appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge