                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 27, 2015
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 15-4008
 v.                                           (D.C. Nos. 2:14-CV-00364-TS and
                                                    2:10-CR-01109-TS-1)
 VIRGIL HALL,                                             (D. Utah)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Defendant-Appellant Virgil Hall, a federal inmate appearing pro se, seeks

to appeal from the district court’s denial of his motion to vacate, set aside, or

correct his sentence. 28 U.S.C. § 2255; 1 R. 126–48. To proceed on appeal, Mr.

Hall must obtain a certificate of appealability (“COA”) by making a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a

district court has rejected a petitioner’s constitutional claims on the merits, he

“must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Where a district court has dismissed a petition on

procedural grounds, he must show, “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.” Id. Because Mr. Hall has not made the

required showing, we deny a COA and dismiss the appeal.

      On December 15, 2010, Mr. Hall was charged in a one-count indictment

alleging possession with intent to distribute 500 grams or more of cocaine. A

jury found Mr. Hall guilty, and he was sentenced to 120 months in custody and 60

months of supervised release. On direct appeal, Mr. Hall argued that the district

court erred by admitting improper evidence at trial. We disagreed and affirmed

his conviction. United States v. Hall, 508 F. App’x 776 (10th Cir.), cert. denied

133 S. Ct. 2841 (2013). Mr. Hall then filed a petition for a writ of mandamus

directing the district court clerk to provide him with original, true, and correct

copies of his indictment, complaint, and judgment, which we dismissed as

frivolous on September 4, 2013.

      On May 12, 2014, Mr. Hall filed his § 2255 motion, asserting several

grounds for relief under the Fifth and Sixth Amendments, including ineffective

assistance of trial and appellate counsel, lack of standing and subject matter

jurisdiction, and violations of his rights to self-representation and to an open

court and public trial. The district court remarked that, because Mr. Hall had not

raised them on direct appeal, all of his claims were procedurally barred absent a

showing of cause and prejudice or a fundamental miscarriage of justice. Hall v.

                                         -2-
United States, Civ. No. 2:14–CV–364 TS, Crim. No. 2:10–CR–1109 TS, 2014 WL

7391735, at *2 (D. Utah Dec. 29, 2014). The court noted that ineffective

assistance could furnish cause for Mr. Hall’s failure to raise the substantive

claims. Id. Of course, it is well established that a petitioner may bring claims of

ineffective assistance of counsel under § 2255 without a showing of cause and

prejudice or a fundamental miscarriage of justice. Massaro v. United States, 538

U.S. 500, 504–506 (2003); United States v. Galloway, 56 F.3d 1239, 1242–1243

(10th Cir. 1995) (en banc). Regardless, the district court carefully analyzed Mr.

Hall’s ineffective assistance claims and considered whether ineffective assistance

could provide cause for failure to raise his other substantive claims. The court

found all claims to be without merit. Hall, 2014 WL 7391735, at *2–12.

      On appeal, Mr. Hall primarily argues the district court lacked jurisdiction

because his indictment and judgment were “facially invalid” in violation of his

Fifth Amendment right to due process of law. Pet. 3. He also argues ineffective

assistance of trial counsel resulted in a “dramatic increase in his mandatory

minimum sentence.” Id. at 4. We do not find the district court’s resolution of

Mr. Hall’s claims reasonably debatable. In particular, he has not shown that his

indictment and judgment were invalid, that the district court lacked jurisdiction,

or that his trial and appellate counsel were constitutionally ineffective under the

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).




                                         -3-
We DENY Mr. Hall’s motion for a COA and DISMISS his appeal.



                            Entered for the Court


                            Paul J. Kelly, Jr.
                            Circuit Judge




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