FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

March 31, 2010

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ALVIN HARRISON,

No. 09-7113
(D.C. Nos. 6:09-CV-00208-RAW and
6:07-CR-00064-RAW-1)
(E.D. Okla.)

Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Alvin Harrison, a federal prisoner proceeding pro se, seeks a Certificate of

Appealability (COA) to appeal the district courts denial of his 28 U.S.C.
2255 petition. With jurisdiction pursuant to 28 U.S.C. 1291 and 2253(a), we
DENY his application for a COA and DISMISS his 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This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1. After examining the briefs and the appellate record, this
three-judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this matter. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.

I. BACKGROUND
Mr. Harrison pleaded guilty to one count of possessing cocaine base with
the intent to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). He
was sentenced to 70 months in prison and 36 months of supervised release. We
dismissed his untimely direct appeal, and granted his appointed counsels motion
to withdraw, in an unpublished Order on April 6, 2009. Mr. Harrison then filed
with the district court a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. 2255, contending he had received ineffective assistance
of counsel. The district court denied the petition. Mr. Harrison then filed a
notice of appeal, along with a motion for a COA and a motion to proceed on
appeal in forma pauperis (IFP). The district court denied a COA and denied
leave to proceed IFP. Mr. Harrison now renews each of these requests before this
court.
II. DISCUSSION
A defendant may not appeal the district courts denial of a 2255 petition
without first obtaining a COA from this court. 28 U.S.C. 2253(c)(1)(B). We in
turn may only issue a COA where the applicant has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district courts resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
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further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Coppage v.
McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Unless we grant a COA, we lack
jurisdiction to resolve the merits of a habeas appeal. Miller-El, 537 U.S. at 342.
Because Mr. Harrisons COA application rests on a claim of ineffective
assistance of counsel, in order to determine if he can make a substantial showing
of the denial of a constitutional right we must undertake a preliminary analysis of
his claims in light of the two-part test outlined in Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, to establish ineffective assistance a petitioner
must show, first, that counsels performance was deficientthat the
representation fell below an objective standard of reasonableness as measured
by prevailing professional norms. Id. at 68788. Second, the petitioner must
establish prejudicethat there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different.
Id. at 694; see also Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008), cert.
denied, 130 S. Ct. 133 (2009). We may review these two components in any
order, and need not address both if the defendant makes an insufficient showing
on one. Strickland, 466 U.S. at 697.
Mr. Harrison first argues that his attorney refused his explicit request to file
an appeal. If true, this claim would be a per se Strickland violation. See, e.g.,
United States v. Snitz, 342 F.3d 1154, 115556 (10th Cir. 2003). The district
court, however, rejected the claim, concluding that Mr. Harrison was not entitled
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to an evidentiary hearing * to prove his allegations because he had not provided

any credible testimony that he requested and his counsel ignored his request for
an appeal. R. at 151 (Dist. Ct. Order, filed Nov. 9, 2009) (citing Snitz, 342 F.3d
at 1156).
Before this court Mr. Harrison again offers only the sparest argument to
support his claim, contending that, after the district court imposed a longer
sentence than Mr. Harrison expected, Counsel told Appellant that he need not
worry, as it would all get corrected on Direct Appeal. Then counsel failed to file
a notice or an appeal. Aplt. Br. at 3. Mr. Harrison does not specifically request
a COA on this issue and does not mention an evidentiary hearing. Nonetheless,
construing his petition liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam), we operate on the view that Mr. Harrison is seeking a COA
regarding the district courts decision to deny an evidentiary hearing.
In Machibroda v. United States, 368 U.S. 487 (1962), the Supreme Court
remanded in a 2255 case for an evidentiary hearing after finding that the
District Court did not proceed in conformity with the provisions of 28 U.S.C.
*

28 U.S.C. 2255(b) provides, in relevant part:

Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall cause notice thereof to be served upon the United
States attorney, grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto.
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 2255, when it made findings on controverted issues of fact . . . without a

hearing. Id. at 494. The Court was careful to note, however, that Mr.
Machibroda had made detailed and specific factual allegations that he had
received certain promises from the Assistant United States Attorney. Id. at
48990, 495. In this light, the Court emphasized that it did not seek
to imply that a movant must always be allowed to appear in a
district court for a full hearing if the record does not
conclusively and expressly belie his claim, no matter how
vague, conclusory, or palpably incredible his allegations may
be. The language of [ 2255] does not strip the district courts
of all discretion to exercise their common sense. Indeed, the
statute itself recognizes that there are times when allegations
of facts outside the record can be fully investigated without
requiring the personal presence of the prisoner.
Id. at 495; see also Blackledge v. Allison, 431 U.S. 63, 75 (1977) (The
allegations in this case were not in themselves so vague [or] conclusory as to
warrant dismissal for that reason alone. (brackets in original) (citation omitted)).
To be sure, this court has not been hesitant to remand for an evidentiary hearing.
See, e.g., United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005). But this does
not imply that a habeas petitioner is automatically entitled to an evidentiary
hearing merely because he makes a bald allegation that his attorney refused to file
an appeal.
Reasonable jurists could not debate the district courts conclusion that Mr.
Harrison was not entitled to an evidentiary hearing. Indeed, even though the
habeas form he filed with the district court required him to [s]tate the facts
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supporting each ground of relief he claimed, see R. at 7 ( 2255 Petition, filed

May 29, 2009), and even after the district court dismissed his claim because he
failed to provide any credible testimony to support it, see R. at 151, Mr.
Harrison again fails on appeal to present detailed and specific facts to back up his
allegation. Without such facts, his claims are vague, conclusory, and palpably
incredible, and he cannot make a substantial showing of the denial of a
constitutional right. We must deny Mr. Harrison a COA on this issue.
Mr. Harrison next claims that he received ineffective assistance at his
sentencing hearing. As he argued before the district court, Counsel . . . did not
object to the use of relevant conduct, and did not raise the issue concerning the
governments lack of evidence to show constructive possession of a large
portion of the cocaine base. R. at 7. He contended that these errors caused him
to receive a greater sentence than was otherwise justified. The district court
rejected this claim, concluding that it was procedurally barred under Bousley v.
United States, 523 U.S. 614, 621 (1998), because Mr. Harrison failed to raise it
on direct appeal: Petitioners . . . argument regarding his counsels failure to
object to the relevant conduct at sentencing need not be addressed because it does
not meet an exception to the rule barring collateral attacks on guilty pleas. R. at
150. As Mr. Harrison points out in his brief on appeal, see Aplt. Br. at 4, this
procedural holding is incorrect. Mr. Harrison is not challenging the district
courts use of relevant conduct or constructive possession. Rather, he is
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challenging his attorneys failure to raise these issues at sentencing. See, e.g.,
United States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004).
This error, however, does not entitle Mr. Harrison to a COA. Where the
district court denies a petition on procedural grounds, we may not issue a COA
unless the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis
added); see also Coppage, 534 F.3d at 1281 (If the application was denied on
procedural grounds, the applicant faces a double hurdle.). Mr. Harrison cannot
clear this double hurdle, for even if reasonable jurists could fault the district
courts procedural ruling, he cannot show that reasonable jurists could debate
whether there is merit to his Strickland claim. The district court was permitted to
consider Mr. Harrisons relevant conduct at sentencing, see, e.g., United States v.
Caldwell, 585 F.3d 1347, 134951 (10th Cir. 2009), and Mr. Harrison does not
identify why he believes the principle of constructive possession was improperly
applied to his case. He thus cannot establish that his attorney was deficient in
failing to raise these challenges at sentencing. Likewise, because any such
objection would properly have been denied, Mr. Harrison cannot establish
prejudice. In short, Mr. Harrison cannot make a substantial showing of the denial
of a constitutional right, and we must deny his request for a COA on this claim.
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Finally, Mr. Harrison contends that his attorney misrepresented the length
of the prison sentence he would serve: Counsel falsely informed his client that
he would only receive a sentence of 37 months if he plead[ed] guilty on the spot.
R. at 7. Mr. Harrison was in fact sentenced to 70 months imprisonment. The
district court rejected this claim for two reasons. It first held that, under Bousley,
Mr. Harrison was required to bring this claim on direct appeal. As discussed
above, this procedural holding was erroneous. However, the district court also
concluded that the claim fell short on the merits under Strickland. Mr. Harrison
could not show that his attorney erred, for [a] miscalculation or erroneous
sentence estimation by defense counsel is not a constitutionally deficient
performance rising to the level of ineffective assistance of counsel. R. at 148
(quoting United States v. Gordon, 4 F.3d 1567, 157071 (10th Cir. 1993))
(brackets in original). Nor could Mr. Harrison prove prejudice, concluded the
district court. At his change-of-plea hearing Mr. Harrison indicated that he
understood that his sentence was solely a matter within the control of the
sentencing judge and stated that he was satisfied with his attorney. R. at 149.
Given the fact that Defendant pleaded guilty even after being so informed by the
court, his mere allegation that, but for original counsels failure to inform him
about the use of relevant conduct in sentencing, he would have insisted on going
to trial, is insufficient to establish prejudice. Gordon, 4 F.3d at 1571.

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Mr. Harrison now repeats the claim that his attorney misrepresented his
likely sentence. ** But he does not challenge the analysis offered by the district
court, and he gives no reason to think that reasonable jurists could disagree with
its conclusion that Gordon bars him from establishing deficient performance or
prejudice. We must deny a COA on this issue.
III. CONCLUSION
Mr. Harrison cannot make a substantial showing of the denial of a
constitutional right arising from any of his claims of ineffective assistance of
counsel. Therefore, we DENY a COA for each of his three issues and, lacking
jurisdiction to proceed further, DISMISS his appeal.

**

On appeal Mr. Harrison appears to alter the facts behind his claim
that his attorney provided an inaccurate estimate of his sentence. He states:
Counsel informed this Appellant that the court was required to tell him that he
could face the max statutory sentence, but that it was routine, and that the
resulting sentence would be in the 3746 month range and would be near or at the
bottom of that range. Aplt. Br. at 3a.
Mr. Harrison does not appear to have argued below that counsel told him
that the district courts warnings were mere formalities. This court will not
consider material outside the record before the district court. United States v.
Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). Though a pro se defendants
filings are interpreted liberally,[t]his court has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other litigants. Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d
915, 917 (10th Cir. 1992)). We deem this claim waived and decline to address it.
We do not opine on whether the new facts Mr. Harrison alleges on appeal would
constitute a Strickland violation.
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We GRANT his motion to proceed on appeal IFP.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

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