                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 16 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 02-4084
                                                         (D. Utah)
 LUIS ARREOLA,                                  (D.C. Nos. 2:00-CV-850-B,
                                                      2:97-CR-67-B)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.



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

unanimously that oral argument would not 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 oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally 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.
      Luis Arreola applies pro se 1 for a certificate of appealability under 28

U.S.C. § 2253(c)(1) of the district court’s denial of his petition for sentencing

relief under 28 U.S.C. § 2255. 2 Exercising jurisdiction under 28 U.S.C. §

2253(c)(1), we deny his request and dismiss the petition.

      A jury convicted Mr. Arreola of distribution of five or more kilograms of

cocaine in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in violation

of 18 U.S.C. § 2. He was sentenced under 21 U.S.C. § 841(b)(1)(A)(ii) to a

mandatory minimum of twenty years imprisonment. 3 He had earlier rejected a

plea offer by the government that would have resulted in ten years imprisonment.

In support of his application, Mr. Arreola asserts ineffective assistance of trial

and appellate counsel, failure of the district court judge to recuse himself from

the habeas action, and an unconstitutional sentence under Apprendi v. United

States, 530 U.S. 466 (2000).

       A certificate of appealability will issue “only if the applicant has made a


      1
        We liberally construe Mr. Arreola’s pro se application. Cummings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
         The district court did not act upon Mr. Arreola’s application for a
certificate of appealability within thirty days of filing of his notice of appeal. In
this circumstance, the application is deemed denied by the district court. United
States v. Kennedy, 225 F.3d 1187, 1193, n.3 (10th Cir. 2000), cert. denied, 532
U.S. 943 (2001).
      3
         His sentence was quantity-enhanced to a mandatory minimum of ten
years, and further enhanced to a mandatory minimum of twenty years due to a
prior conviction for a felony drug offense. See also, 21 U.S.C. § 851.

                                          -2-
substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), by demonstrating “reasonable jurists could debate whether . . . the

issues presented [are] adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation

omitted).

      Effectiveness of trial counsel is determined by applying a two-part test: 1)

counsel must have committed errors so serious as to fall outside the kind of

functioning required by the Sixth Amendment; and 2) the defendant must show

the deficient performance prejudiced the defense in such a fashion as to call into

question the reliability of the proceedings. Strickland v. Washington, 466 U.S.

668, 687 (1984). We will not indulge hindsight in evaluating counsel’s

effectiveness, as we apply “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance” and “sound trial

strategy.” Id. at 689 (quotation marks omitted). A finding of ineffective

appellate counsel depends on the merits of the issue not raised. Duckett v. Mullin,

306 F.3d 982, 996 (10th Cir. 2002).

      Mr. Arreola argues his trial counsel was constitutionally ineffective for a

number of reasons. First, he claims trial counsel should have objected to an

alleged violation by the trial judge of Fed. R. Crim. P. 11(e), which forbids

participation by the court in plea negotiations. No record evidence supports this


                                         -3-
charge. At sentencing, the trial judge simply observed Mr. Arreola had earlier

rejected a ten year plea offer which the court had encouraged him to accept when

he had the chance to do so. If error at all, it was harmless. See Fed. R. Crim. P.

11(h). For the same reason, we see no basis for recusal of the trial judge from the

§ 2255 proceedings, as Mr. Arreola had requested under 28 U.S.C. § 455(a)

(requiring disqualification where impartiality might reasonably be questioned).

      Second, Mr. Arreola, who received an enhanced sentence due to a prior

felony drug conviction, asserts error because counsel did not object to the district

court’s failure to comply with 21 U.S.C. § 851(b). 4 Notably, Mr. Arreola testified

under oath to his prior felony drug conviction. The failure of the trial court to

elicit the same information, as required by statute, is harmless error. U.S. v.

Lopez-Gutierrez, 83 F.3d 1235, 1246-47 (10th Cir. 1996). The failure to advise

as to foreclosure of the right to attack the prior conviction is of no moment when

Mr. Arreola presents no grounds for such an attack. Id.


      4
             If the United States attorney files an information under
             this section, the court shall after conviction but before
             pronouncement of sentence inquire of the person with
             respect to whom the information was filed whether he
             affirms or denies that he has been previously convicted
             as alleged in the information, and shall inform him that
             any challenge to a prior conviction which is not made
             before sentence is imposed may not thereafter be raised
             to attack the sentence.

21 U.S.C. § 851(b).

                                         -4-
      In his final challenge to the effectiveness of trial counsel, Mr. Arreola

protests his trial attorney: 1) allowed the district judge to conduct voir dire; 2)

avoided defenses relating to chain of custody and proof of the controlled

substance 5; 3) for alleged personal reasons, agreed to a three day trial; and 4) did

not object to the government’s jury instructions. These claims are either meritless

or fail to overcome a strong presumption of reasonable trial strategy. Strickland,

466 U.S. at 689.

      Turning to the constitutionality of Mr. Arreola’s sentence, we have

interpreted Apprendi 6 to limit the sentence imposed for a violation of 21 U.S.C. §

841(a) to the unenhanced standard of not more than twenty years (21 U.S.C. §

841(b)(1)(C)), unless a quantity enhancement has been charged and proven to a

jury. United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). While

charged here, the drug quantity was not proven to a jury. The sentence imposed,

though, is within the statutory maximum of twenty years 7, and is therefore

constitutional. United States v. Heckard, 238 F.3d 1222, 1235 (10th Cir. 2001).



      5
       Mr. Arreola defended on the grounds he had no knowledge of the secret
compartment (or the cocaine it contained) in the vehicle he was driving.
      6
         “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
      7
        Under 21 U.S.C. § 841(b)(1)(C), a prior felony drug conviction, such as
Mr. Arreola’s, further enhances to a statutory maximum of thirty years.

                                           -5-
      We find no deficient performance by trial or appellate counsel, find no

error in the district court judge failing to recuse himself, and detect no Apprendi

violation. Therefore, we conclude no reasonable jurist would debate the district

court’s denial of Mr. Arreola’s § 2255 petition. Accordingly, we decline to issue

a certificate of appealability, and dismiss the petition.



                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge




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