Case Information
*1 Before EBEL , KELLY , and LUCERO , Circuit Judges. [**]
Messrs. Davis and Haslip (collectively “Petitioners”) seek a certificate of
appealability (“COA”) to appeal from the district court’s denial of their habeаs corpus
motions brought pursuant to 28 U.S.C. § 2255. Petitioners were convicted of bank
robbery, 18 U.S.C. § 2113(a), using or carrying a firearm during the bank robbery,
18 U.S.C. § 924(c)(1), and possession of a firearm aftеr a prior felony conviction,
18 U.S.C. § 922(g)(1). United States v. Davis,
Mr. Davis identifies the following issues which he believes warrant the issuance of a COA. First, he contends that the district court lacked subjeсt-matter jurisdiction to try and convict him under 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1) because the Government did not present evidence to the Grand Jury that Mr. Davis “received the weapons as they trаveled [in] interstate commerce,” an element of a § 922(g)(1) offense. Davis COA App. at 5-6, 7. Second, Mr. Davis argues that the indictment was defective because the “entire language of . . . 18 U.S.C. § 2 (“Aiding and Abetting”) was omitted from Counts One, Two, and Four . . . .” Id. at 6, 8. Third, Mr. Davis contends that the restitution order was unconstitutional because the district court allowed the Fedеral Bureau of Prisons to deduct payments from Mr. Davis’ s account under the Inmate Financial Responsibility Program. Id. at 11-12. Mr. Davis argues ineffective assistance of counsel as cause excusing his failure to raise each of these claims on direct appeal. Id. at 10-11. Fourth, Mr. Davis asserts that counsel was also ineffective for failing to present a diminished capacity defense and request a competency application as a notice of appeal. Fed. R. App. P. 3(с). Smith v. Barry, 502 U.S. 244, 248-49 (1992). Mr. Haslip’s notice of appeal was, therefore, timely filed. Fed. R. App. P. 4(c).
hearing. Id. at 13-16. Finally, Mr. Davis argues cumulative error on the part of trial counsel. Id. аt 3.
Mr. Haslip has identified the following issues in his COA application.
First, he argues that he was denied substantive due process under Apprendi v.
New Jersey,
We have reviewed the motions, the district court orders denying the
motions, the COA appliсations, and the record. Having done so, we deny
Petitioners a COA. As a preliminary matter, we will not consider Petitioners’
claims that the indictment was defective becаuse the statutory language for aiding
and abetting was omitted. Petitioners did not raise the claims below. Walker v.
Mather (In re Walker),
The remaining claims in Mr. Davis’s applicatiоn do not warrant the
issuance of a COA. 28 U.S.C. § 2253(c)(2). The government was required to
show only that Mr. Davis possessed a firearm “in or affecting commerce . . . .”
18 U.S.C. 922(g). Mr. Davis does not arguе that the government failed to make
this showing. Further, the district court’s restitution order was proper because
Mr. Davis was ordered to pay restitution immediately. R. doc. 159, аt 5 (Davis
judgment). Mr. Davis’s arguments of ineffective counsel are meritless; he was
*6
not prejudiced by counsel’s failure to raise the arguments before the court,
Strickland v. Washingtоn,
A diminished capacity defense would have been, as the district court
observed, “inconsistent with Davis’ primary defense at trial—that he was not
present during the bank robbery.” R. doc. 204, at 8; see also Davis, 1999 WL
29160, at *3-4. Nor has Mr. Davis shown, with reasonable probability, that a
diminishеd capacity defense would have produced a different outcome.
Strickland,
Mr. Haslip’s claims are equally without merit. The grand jury found that
Mr. Haslip possessed a weapon in and affecting interstate commerce. R. doc. 39,
at 3. Moreover, Apprendi “is not applicable when the sentence-enhancing fact is
a prior convictiоn . . . .” United States v. Martinez-Villalva,
Mr. Haslip’s ineffective assistance of counsel claim relating to pre-trial
identification is also without merit. The district court docket sheet reflects that
counsel in fact moved to suppress the photo lineup. R. doc. 200, at 5 (citing R.
doc. 30). Mr. Haslip has not convinced us that the pre-trial identification
procedures were so suggestive or unreliable (if at all), United States v. Bredy, 209
F.3d 1193, 1195 (10th Cir.), cert. denied,
Accordingly, we DENY Petitioners COAs and DISMISS the petitions. Entered for the Court Paul J. Kelly, Jr.
Circuit Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generаlly disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
[**] After examining the briefs and the appellatе record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fеd. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
[1] The Tenth Circuit court clerk raised a jurisdictional issue regarding the timeliness of Mr. Haslip’s apрeal and referred it to the merits panel. The district court dismissed Mr. Haslip’s § 2255 motion on September 18, 2000. R. doc. 200. Mr. Haslip was therefore required to file a notice of appeal by November 17, 2000. Fed. R. App. P. 4(a)(1)(B); Fed. R. Gov. § 2255 Proceed. Although Mr. Haslip’s notice of appeal was filed on November 24, R. doc. 208, his application for а COA was mailed to this court on November 17. We construe this
[2] Specifically, Mr. Haslip argues that the photo lineup was suggestive because witnesses could not identify Mr. Hasliр as the robber immediately after the robbery, and were only able to conclude that Mr. Haslip’s photograph was “similar” to the robber. Haslip COA App. at 16. Mr. Haslip also argues that the photo lineup was unduly suggestive because “Falls River State Bank,” the name of the bank robbed, was written across the page and happened to appear above Mr. Haslip’s photograph. Id.