                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        January 18, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

    v.                                                  No. 04-3273
                                                 (D.C. No. 02-CV-3409-SAC)
    JAY DEE WALTERS,                                      (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, 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.

         In 1999, Petitioner Jay Dee Walters (“Jay Dee” or “Mr. Walters”) and his

wife, Cheryl Walters, were indicted on various drug-related offenses. At their



*
      This order and judgment is not binding precedent, except under the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.
trial, the jury deadlocked on the charges against Cheryl but convicted Jay Dee on

one of the counts returned in the superseding indictment: conspiracy to

manufacture and distribute in excess of one kilogram of a mixture or substance

containing a detectable amount of methamphetamine in violation of 21 U.S.C.

§§ 841 and 846. However, the jury did not make a finding as to the specific drug

quantity involved in the offense. Applying a “theoretical yield” calculation at

sentencing, the district court determined that 214 grams of methamphetamine

could have been manufactured given the estimated amount of precursors that

Mr. Walters and his wife had purchased for use by other members of the

conspiracy in the manufacturing process. The district court sentenced

Mr. Walters to 121 months’ imprisonment and a five-year term of supervised

release under § 841(b)(1)(C) and the United States Sentencing Guidelines

(“Federal Guidelines”). A panel of this court affirmed the conviction and

sentence on direct appeal on December 7, 2001. See United States v. Walters,

28 Fed. Appx. 902 (10th Cir. 2001) (unpublished).

      Although Mr. Walters did not file a petition for a writ of certiorari with the

Supreme Court, he did file a timely motion pursuant to 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence. The district court denied the motion but

granted him a certificate of appealability (“COA”) on issues numbered five,

seven, and twelve in his COA application. In addition to these three issues, he


                                         -2-
has filed a renewed application for a COA in this court on nine other issues

(“Renewed COA Application”). Exercising jurisdiction under 28 U.S.C. §§ 1291

and 2253(a), we AFFIRM the denial of his § 2255 motion. We also GRANT his

motion to proceed in forma pauperis and DENY his Renewed COA Application

and his other pending motions.

I.    General Legal Standards and Standards of Review.

      A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). Accordingly, we may consider only the issues certified

by the district court in its order granting a COA, plus any issues on which we

grant a COA.

      “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998). “Absent an intervening change in the law of a circuit,

issues disposed of on direct appeal generally will not be considered on a collateral

attack by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789,

791 (10th Cir. 1989). The intervening change in the law must be retroactively

applicable to cases on collateral review. See United States v. Price, 400 F.3d 844,

845 (10th Cir.) (denying petition for rehearing on ground that an intervening

change in the law by the Supreme Court was not retroactively applicable to an

initial § 2255 motion), cert. denied, 126 S. Ct. 731 (2005).


                                        -3-
      A petitioner also is barred from raising an issue in a § 2255 motion that he

failed to raise on direct appeal “unless he establishes either cause excusing the

procedural default and prejudice resulting from the error or a fundamental

miscarriage of justice if the claim is not considered.” United States v. Cox,

83 F.3d 336, 341 (10th Cir. 1996). The procedural default rule does not apply to

claims of ineffective assistance of counsel regardless of whether the claim could

have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504

(2003). Thus, “[a] defendant may establish cause for his procedural default by

showing that he received ineffective assistance of counsel in violation of the

Sixth Amendment.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).

      To establish that counsel was ineffective, “a defendant must show that

(1) his counsel’s performance was constitutionally deficient, and (2) counsel’s

deficient performance was prejudicial.” Id. (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). To establish the first component, deficient

performance, a “defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688. We “indulge

a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. To establish the second

component, prejudice, a “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the


                                          -4-
proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

      The Strickland standard applies equally to ineffective assistance claims

concerning trial and appellate counsel. Cook, 45 F.3d at 392. “[I]n analyzing an

appellate ineffectiveness claim based upon the failure to raise an issue on appeal,

we look to the merits of the omitted issue.” Cargle v. Mullin, 317 F.3d 1196,

1202 (10th Cir. 2003) (quotation omitted). The omission of a meritless issue does

not constitute deficient performance. Id. “Whether a petitioner’s claim satisfies

Strickland’s two-part test is a mixed question of law and fact we review de novo.”

Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002).

      “The incarceration of one actually innocent of the crime of which he has

been convicted constitutes a grave miscarriage of justice.” United States v.

Cervini, 379 F.3d 987, 991 (10th Cir. 2004). “There must be a showing that no

reasonable juror would have found the defendant guilty.” Id. (quotation omitted).

      Because Mr. Walters appears pro se, we review his pleadings and other

papers liberally and hold them to a less stringent standard than those drafted by

attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

II.   Issues Presented in the District Court’s COA.




                                         -5-
       The district court certified three of the issues Mr. Walters presented in his

application for a COA: (1) counsel was ineffective by not arguing on direct

appeal that the government’s failure to prove the amount of methamphetamine

charged in the indictment, in excess of one kilogram, violated Apprendi v. New

Jersey, 530 U.S. 466 (2000), particularly in view of Blakely v. Washington,

542 U.S. 296 (2004); 1 (2) Mr. Walters’ Fifth Amendment due process rights and

his Sixth Amendment right to a jury trial were violated under Apprendi and

Blakely because the district court made drug quantity findings instead of the jury;

and (3) his Fifth Amendment right to due process and his Sixth Amendment rights

to notice of the nature and cause of the accusations against him and to a jury trial

were violated under Apprendi and Blakely because the indictment did not charge

the proper weight and the jury was not instructed to make a factual finding as to

drug quantity in its verdict. 2




1
      In his application for a COA, Mr. Walters did not rely on United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), as the Supreme Court decided
Booker after the district court ruled on the application. However, Mr. Walters
addresses Booker in his briefs on appeal, and we consider it below.
2
       We note that, as stated in Mr. Walters’ § 2255 motion and his application
for a COA, the second and third issues certified for appeal were not clearly
couched in terms of ineffective assistance of counsel. However, because they
involve variants of the first issue, which clearly alleges ineffective assistance of
counsel, we will consider the second and third issues to include a claim of
ineffective assistance of appellate counsel.

                                         -6-
      The district court considered these issues to be “thinly veiled recasts of the

Apprendi issues that the defendant unsuccessfully advanced on direct appeal” and

procedurally barred. R., Vol. I, doc. 307 at 24. The Apprendi argument raised on

direct appeal concerned whether, in the absence of a jury finding as to drug

quantity, the district court could impose a term of supervised release of five years

when 21 U.S.C. § 841(b)(1)(C) provided for a minimum term of three years.

Walters, 28 Fed. Appx. at 904. We concluded that Apprendi did not prevent the

district court from imposing the five-year term because the statute provided no

maximum term. Id. at 904-05. Although the reasoning we applied to that issue

compels the same conclusion on the Apprendi issues that form the predicate for

the ineffective assistance of counsel claims the district court certified, the

Apprendi issue raised on direct appeal is different from the Apprendi issues raised

in the § 2255 motion. Nevertheless, the new Apprendi issues are procedurally

barred because they could have been raised on direct appeal but were not. We

now turn to Mr. Walters’ attempt to overcome the procedural bar by alleging

ineffective assistance of counsel.

      In Apprendi, the Supreme Court held that, “[o]ther 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




                                          -7-
doubt.” Apprendi, 530 U.S. at 490. Prior to the date on which Mr. Walters’

conviction became final, this circuit interpreted Apprendi as follows:

      [T]he quantity of drugs involved in a violation of § 841 is an
      essential element of the offense if that fact exposes the defendant to
      a heightened maximum sentence under § 841(b)(1)(A) or (B). A
      district court may not impose a sentence in excess of the maximum
      set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity
      . . . for an enhanced penalty is alleged in the indictment in addition to
      being submitted to the jury and proven beyond a reasonable doubt.

United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). The corollary of

this statement is that the quantity of drugs involved in a violation of § 841 is not

an essential element of the offense if a district court imposes a sentence that does

not exceed the maximum set forth in § 841(b)(1)(C), which does not require any

minimum quantity as a predicate for sentencing. Cf. United States v. Thompson,

237 F.3d 1258, 1262 (10th Cir. 2001) (holding that, “because the indictment set

forth all the necessary elements of a crime as defined by 21 U.S.C. § 841(a) and

21 U.S.C. § 846, and because the minimum statutory range [of § 841(b)(1)(C)]

. . . does not specify a drug amount, neither the indictment [which did not specify

any drug quantity] nor the conviction was defective” under Apprendi). Thus,

under Apprendi, a jury could determine that a defendant is guilty of a violation of

§ 841(a) even if the jury is unable to find a specific quantity or finds a quantity

less than that charged in the indictment. The district court then could impose any

sentence in accordance with the Federal Guidelines provided that the sentence did


                                          -8-
not exceed the applicable statutory maximum set forth in § 841(b)(1)(C). This is

what happened in Mr. Walters’ case.

      In Blakely, the Supreme Court considered the sentencing scheme of the

state of Washington and held that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” Blakely,

542 U.S. at 303. After the district court issued its COA in this case, the Supreme

Court extended the rule in Blakely to the Federal Guidelines. See United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 755 (2005). The Court held that “[a]ny

fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id. at 756.

      Blakely and Booker, however, have no effect on Apprendi for purposes of

Mr. Walters’ § 2255 motion. Neither case applies retroactively to initial § 2255

motions that challenge convictions that became final prior to the effective dates

of those cases. See United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir.

2005); Price, 400 F.3d at 849. After we decided his direct appeal on December 7,

2001, Mr. Walters did not file a petition for a writ of certiorari. Therefore, his

conviction became final ninety days later, on March 7, 2001, long before June 24,


                                          -9-
2004, the effective date of Blakely, or January 12, 2005, the effective date of

Booker. See Price, 400 F.3d at 846 (setting out method to determine finality of

conviction for retroactivity purposes); Sup. Ct. R. 13.1. (providing a ninety-day

period for filing a certiorari petition).

       We are unpersuaded by Mr. Walters’ argument that Blakely and Booker

merely clarified Apprendi such that their retroactive applicability is irrelevant to

his § 2255 motion. Blakely created a new procedural rule. Price, 400 F.3d at

846. Because that rule is inapplicable to Mr. Walters’ § 2255 motion, id. at 845,

his conviction and sentence do not violate Apprendi. Additionally, Mr. Walters

relies mistakenly on United States v. Arras, 373 F.3d 1071 (10th Cir. 2004), and

United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001), overruled on other

grounds by United States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001) (en

banc) (per curiam). In each of those cases, we held that, under Apprendi, drug

quantity must be charged in the indictment if the court applies one of the

enhanced sentences of § 841(b)(1)(A) or (B). Arras, 373 F.3d at 1074; Jackson,

240 F.3d at 1248. Those cases did not involve a sentence under § 841(b)(1)(C).

       Accordingly, because there is no merit to Mr. Walters’ underlying

arguments concerning the drug quantity charged in the indictment and the fact

that the district court determined drug quantity rather than the jury, we conclude

that counsel’s failure to raise these issues on direct appeal was not deficient


                                            -10-
performance, see Cargle, 317 F.3d at 1202. For the same reason, it was not error

for the district court to fail to instruct the jury to make a drug quantity finding,

and counsel’s failure to raise that issue on direct appeal likewise is not deficient.

      We also conclude that Mr. Walters’ Sixth Amendment right to notice of the

nature and cause of the accusations against him was not violated by the difference

between the drug quantity charged in the indictment, in excess of one kilogram,

and the quantity the district court ultimately calculated, 214 grams. “An

indictment is sufficient if it sets forth the elements of the offense charged, puts

the defendant on fair notice of the charges against which he must defend, and

enables the defendant to assert a double jeopardy defense.” United States v.

Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). As we have concluded that drug

quantity was not an element of the offense in this case, the indictment satisfied

the Sixth Amendment. 3

      For the foregoing reasons, we affirm the district court’s denial of

Mr. Walters’ § 2255 motion on the issues certified for appeal.


3
       We have also considered Mr. Walters’ “Memorandum of Fact to Clarify
Record,” in which he argues, inter alia, that the direct appeal panel erred in its
consideration of the district court’s ruling that his objections to the use of a
“theoretical yield” concept in calculating drug quantity were untimely. Ignoring
the procedural infirmities of this filing and assuming Mr. Walters is correct that
his objections were timely filed, we see no prejudice in the direct appeal panel’s
determination. That panel considered the gravamen of the objection he discusses
in the memorandum of fact, that the information on which the theoretical yield
was based was itself flawed, and rejected it. Walters, 28 Fed. Appx. at 907.

                                          -11-
III.   Issues Presented in Mr. Walters’ Renewed COA Application.

       We review Mr. Walters’ Renewed COA Application in order to determine if

he “has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To meet this standard, he “must ‘sho[w] that reasonable

jurists could debate whether (or, for that matter, agree that) the [§ 2255] petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.’” Miller-El, 537 U.S. at

336 (first alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)) (further quotation omitted). When a district court denies a § 2255 motion

on procedural grounds and does not reach the underlying constitutional claim, a

petitioner must show that it is reasonably debatable “whether the petition states a

valid claim of the denial of a constitutional right and . . . whether the district

court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Additionally,

“we may deny a COA if there is a plain procedural bar to habeas relief, even

though the district court did not rely on that bar.” Davis v. Roberts, 425 F.3d

830, 834 (10th Cir. 2005).

       Although Mr. Walters is not required to prove the merits of the case in

order to obtain a COA, he “must prove something more than the absence of

frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338

(quotations omitted). In evaluating whether he has satisfied his burden, we


                                          -12-
perform “an overview of the claims . . . and a general assessment of their

merits. . . . This threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims. In fact, the statute forbids

it.” Id. at 336.

       The first two issues Mr. Walters raises in the Renewed COA Application

are related: whether counsel rendered ineffective assistance by representing both

Mr. Walters and his wife, Cheryl, when they gave voluntary statements to the

Kansas Bureau of Investigation (“KBI”), and by failing to investigate facts prior

to permitting the interview. 4 The district court concluded that there was no

conflict because Mr. Walters and his wife shared a common coercion defense and

their statements did not conflict, and Mr. Walters provided no evidence showing

why counsel should have advised them not to cooperate with the KBI until he had

a chance to investigate.




4
       Both Jay Dee and Cheryl were represented by the same attorney prior to and
at their trial. In his applications for a COA, Mr. Walters asserts that a conflict of
interest prevented counsel from calling Cheryl as a witness at trial to offer
evidence that would buttress the coercion defense or downplay Jay Dee’s role in
the conspiracy. He also asserts that the admission of Cheryl’s recorded statement
violated his Sixth Amendment confrontation clause rights because she did not
testify. However, he did not present these arguments to the district court in his
§ 2255 motion. Therefore, we do not consider them. See United States v. Mora,
293 F.3d 1213, 1216 (10th Cir. 2002) (applying “the general rule that we do not
address arguments presented for the first time on appeal” to an appeal from the
denial of a § 2255 motion).

                                         -13-
      When, as here, a defendant does not raise a potential conflict of interest in

the trial court, the mere possibility of conflict is insufficient to reverse a criminal

conviction; the defendant “must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,

348 (1980). “‘[U]ntil . . . a defendant shows that his counsel actively represented

conflicting interests, he has not established the constitutional predicate for his

claim of ineffective assistance.’” Mickens v. Taylor, 535 U.S. 162, 175 (2002)

(quoting Cuyler, 446 U.S. at 350). “[T]o demonstrate an actual conflict of

interest, the petitioner must be able to point to specific instances in the record

which suggest an impairment or compromise of his interests for the benefit of

another party.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)

(quotation omitted). “Without a showing of inconsistent interests, any alleged

conflict remains hypothetical, and does not constitute ineffective assistance.” Id.

      Mr. Walters argues that his interests diverged from Cheryl’s interests

because he allegedly had a lower level of involvement in the conspiracy than she

did. He also argues that the coercion defense was “invalid otherwise the jury

would have ‘hung’ as to the petitioner as well.” Renewed COA Application at 3.

These arguments are unpersuasive. Even assuming that Cheryl was more involved

than Jay Dee, their interests were aligned in admitting to their respective levels of

involvement and presenting the coercion defense. Mr. Walters has pointed to no


                                          -14-
specific instances of conduct by counsel that suggest the decision to present a

unified defense during the KBI interview was encumbered by a conflict of

interest. Therefore, he has not demonstrated an actual conflict that affected his

lawyer’s performance.

      Mr. Walters also argues that, prior to his KBI interview, he met with his

attorney and explained his version of the facts. He contends that counsel’s failure

to investigate further prior to advising him to admit criminal conduct to the KBI

and pursue a coercion defense constitutes ineffective assistance of counsel. As

noted in Strickland:

             The reasonableness of counsel’s actions may be determined or
      substantially influenced by the defendant’s own statements or
      actions. . . . [W]hen the facts that support a certain potential line of
      defense are generally known to counsel because of what the
      defendant has said, the need for further investigation may be
      considerably diminished or eliminated altogether. And when a
      defendant has given counsel reason to believe that pursuing certain
      investigations would be fruitless or even harmful, counsel’s failure to
      pursue those investigations may not later be challenged as
      unreasonable.

Strickland, 466 U.S. at 691. Notably, Mr. Walters has not provided any of the

substance of the discussion he had with his attorney. Nor has he indicated what

information his attorney might have discovered or explained how such

information would have led to different advice. We conclude that Mr. Walters

has provided nothing that causes us to question the “strong presumption that



                                        -15-
counsel’s conduct falls within the wide range of reasonable professional

assistance,” id. at 689, or that warrants further proceedings.

      The third and fifth issues Mr. Walters raises are related: whether trial

counsel was ineffective in failing to object to the admission of evidence, in

particular evidence of a “stand off” with Billy Hill (a member of the conspiracy

who allegedly coerced Mr. Walters into participating) on the so-called “Wamsley

property” and of a methamphetamine lab found there. Mr. Walters claims this

evidence is irrelevant because he had nothing to do with the Wamsley operations.

He also asserts that counsel was ineffective for failing to raise the issues on

appeal. We agree with the district court that the underlying evidentiary issues are

procedurally barred because he should have raised them on direct appeal. We

also conclude that the issues lack merit. The evidence was relevant to

Mr. Walters’ role in the conspiracy because “[a] defendant need not have

knowledge of all the details or all the members of the conspiracy and may play

only a minor role in the conspiracy to incur liability.” United States v.

Mendoza-Salgado, 964 F.2d 993, 1005 (10th Cir. 1992) (quotation omitted).

Accordingly, any objection, and any appeal from the admission of such evidence,

would have been without merit. Therefore, counsel’s performance was not

deficient.




                                         -16-
       Mr. Walters’ fourth issue is that trial counsel was ineffective because he

did not permit Mr. Walters to testify at trial, allegedly misinforming him that the

decision was counsel’s to make, not Mr. Walters’ decision. The district court

ruled that Mr. Walters alleged sufficient details on the first prong of the

Strickland test to justify an evidentiary hearing but that none of his allegations

showed prejudice. The court noted that he provided only conclusory allegations

about what his testimony would have been, and the jury heard evidence on

coercion, including Mr. Walters’ own recorded statement to the KBI that he was

coerced. For substantially the same reasons, we agree with the district court that

Mr. Walters’ fourth issue lacks merit. Accordingly, counsel was not ineffective

in failing to raise it on direct appeal.

       In his sixth issue, Mr. Walters contends that his sentence violated the Sixth

Amendment under Apprendi because it was based on classifying the

methamphetamine at issue under Schedule II (which is set forth in 21 U.S.C.

§ 812(c)) without it being charged as a Schedule II drug in the indictment and

without a finding by the jury that it was injectable. The district court considered

the merits of this claim and, relying on United States v. Zamora, 784 F.2d 1025

(10th Cir. 1986), concluded the law is clearly established that methamphetamine

is a Schedule II drug regardless of its injectability.




                                           -17-
      We conclude that this issue is procedurally barred because it should have

been raised on direct appeal. The default cannot be excused as either ineffective

assistance of counsel or a fundamental miscarriage of justice because

Mr. Walters’ argument has no merit under Zamora, where we noted that

methamphetamine was reclassified as a Schedule II drug in 1971:

      21 U.S.C. § 811 . . . grants broad power to the Attorney General to
      transfer drugs between schedules if he finds potential for abuse and
      makes certain other findings. Pursuant to the aforesaid section, the
      Attorney General did promulgate changes in Schedule II, to include
      methamphetamine, its salts, isomers, and salts of isomers. 21 C.F.R.
      § 1308.12.

Zamora, 784 F.2d at 1030. Other courts have reached the same conclusion. See,

e.g., United States v. Macedo, 371 F.3d 957, 962 (7th Cir. 2004); United States v.

Gori, 324 F.3d 234, 240 (3d Cir. 2003); United States v. Segler, 37 F.3d 1131,

1133 (5th Cir. 1994); United States v. Kendall, 887 F.2d 240, 241-42 (9th Cir.

1989) (per curiam).

      Mr. Walters’ seventh issue is that the government failed to inform the grand

jury of mitigating evidence concerning statements made by Mr. Walters and his

wife about Billy Hill’s violent proclivities. The district court noted the

government’s position that it was not aware of the coercion defense until

Mr. Walters and his wife made their statements to the KBI, which was after the

grand jury returned the indictment. The court concluded Mr. Walters had not

supplied any proof that the government discovered any substantial exculpatory

                                         -18-
evidence and withheld it from the grand jury. The court also noted that, because

Mr. Walters’ coercion defense was unsuccessful at trial under a reasonable doubt

standard, there is little chance the defense would have deterred the grand jury

from returning an indictment under the probable cause standard. For substantially

the same reasons, we agree that there is no merit to this argument.

      The eighth issue Mr. Walters raises is that his trial in federal court was an

abuse of prosecutorial discretion because the principal conspirators, who

allegedly had much greater involvement in the conspiracy, were tried in state

court. He also alleges that the court lacked jurisdiction over him because his role

in the conspiracy had no link to interstate commerce. The district court concluded

that Mr. Walters failed to state a viable constitutional claim on either ground

because he asserted no improper purpose on the part of the prosecutor in filing the

federal claim and his jurisdictional argument was frivolous. For substantially the

same reasons, we agree that Mr. Walters’ arguments have no merit.

      In his ninth and final issue, Mr. Walters challenges the constitutionality of

21 U.S.C. §§ 841(a)(1) and 846, both as applied and facially, because his conduct

in the conspiracy did not affect interstate commerce and the statutes lack a

jurisdictional element requiring a link to interstate commerce. We agree with the

district court that there is no merit to Mr. Walters’ argument. What he fails to

grasp is that “[e]ven activity that is purely intrastate in character may be regulated


                                         -19-
by Congress, where the activity, combined with like conduct by others similarly

situated, affects commerce among the States or with foreign nations.” Fry v.

United States, 421 U.S. 542, 547 (1975). Drug offenses are considered to

regulate a class of activities that necessarily affect interstate commerce. See

United States v. Janus Indus., 48 F.3d 1548, 1556 (10th Cir. 1995). Furthermore,

“the absence of formal findings concerning the effect on interstate commerce . . .

does not prevent Congress from regulating under the Commerce Clause.”

Id. (quotation omitted). We specifically have held that “§ 841(a)(1) and § 846 are

within Congress’ power to regulate interstate commerce.” United States v. Price,

265 F.3d 1097, 1107 (10th Cir. 2001). The statutes, therefore, are facially

constitutional. We also have held that, “[w]hen Congress enacts a statute under

its commerce power, it is not constitutionally obligated to require proof beyond a

reasonable doubt that each individual act in the class of activities regulated had

an effect on interstate commerce.” United States v. Lane, 883 F.2d 1484, 1492

(10th Cir. 1989). Accordingly, the government was not required to prove that

Mr. Walters’ conduct affected interstate commerce.

      Based on the foregoing, we conclude that Mr. Walters has failed to make a

substantial showing of the denial of a constitutional right, and we deny his

Renewed COA Application.

IV.   Denial of Mr. Walters’ Motion for an Evidentiary Hearing.



                                         -20-
       Mr. Walters also complains that the district court erred in denying his

claim that trial counsel had a conflict of interest without an evidentiary hearing.

A district court is required to conduct an evidentiary hearing “[u]nless the motion

and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255. We review the district court’s refusal to

hold an evidentiary hearing for an abuse of discretion. United States v. Clingman,

288 F.3d 1183, 1187 n.4 (10th Cir. 2002). Given that Mr. Walters has failed to

make a substantial showing that counsel was constitutionally ineffective, the

district court did not abuse its discretion in denying an evidentiary hearing.

                                     Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of

Mr. Walters’ § 2255 motion. We also DENY his Renewed COA Application and

his motion for leave to file a supplemental brief, and we DISMISS the remainder

of this appeal. We GRANT his motion to proceed in forma pauperis and remind




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him of his obligation under 28 U.S.C. § 1915(b) to make partial payments of the

filing fee until it is paid in full. Finally, we DENY his motions for appointment

of counsel.

                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




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