                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 7, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 13-3177
 v.
                                              (D.C. Nos. 2:12-CV-02669-JWL and
                                                   2:07-CR-20168-JWL-24)
 FRANKLIN GOODWIN, JR.,
                                                           (D. Kan.)
          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.



      After a jury convicted Franklin Goodwin, Jr. on cocaine conspiracy

charges, a result this court affirmed on direct appeal, Mr. Goodwin filed a

collateral attack on his conviction under 28 U.S.C. § 2255. Mr. Goodwin alleged

that the evidence at trial was insufficient to prove his participation in the

conspiracy and that he was denied effective assistance of counsel. The district

court disagreed, issued a detailed memorandum and order dismissing Mr.




      *
         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Goodwin’s request, and denied Mr. Goodwin’s request for a certificate of

appealability (COA).

      Now before us, Mr. Goodwin renews his request for a COA. He adds

claims that he was entitled to an evidentiary hearing, that his Sixth Amendment

rights were violated when a judge determined that he had two prior convictions

triggering 21 U.S.C. § 841(b)(1)(A), and that the Fair Sentencing Act of 2010

should apply retroactively and reduce his sentence. These arguments were not

made in Mr. Goodwin’s § 2255 action below and so are not preserved for our

review. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

Further, Mr. Goodwin could have raised his Fair Sentencing Act and evidentiary

hearing arguments on direct appeal, and a § 2255 motion generally is “not

available to test the legality of a matter which should have been raised on direct

appeal.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). When a

defendant “fails to raise an issue on direct appeal, he is barred from raising the

issue in a § 2255 proceeding, 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.” Id. Mr. Goodwin fails to

provide evidence of either.

      Mr. Goodwin also raises for the first time in this court a Sixth Amendment

claim based on Alleyne v. United States, 133 S. Ct. 2151 (2013), a decision issued

by the Supreme Court after the district court ruled on his § 2255 motion. But

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even assuming Alleyne applies retroactively to cases on collateral review and

could be considered for the first time in this court (questions we do not need to

decide) the case does not help Mr. Goodwin on its own terms. In Alleyne, the

Court held that most (but not all) facts that increase a mandatory minimum

sentence must be submitted to the jury. Mr. Goodwin argues this means the

existence of his prior convictions should have been tried to the jury in his case

because they triggered the application of a mandatory minimum sentence. But

this much Alleyne does not require. To the contrary, Alleyne expressly left in

place the preexisting rule that a judge may (as here) find the fact of a prior

conviction. Id. at 2160 n.1.

      To succeed on his remaining claims, ones he did present to the district

court, Mr. Goodwin must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). And to do that, he must

demonstrate “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

Our review of the case leads us to agree with the district court that Mr. Goodwin

has not crossed that threshold.

      Mr. Goodwin first claims that the evidence presented at trial was only

sufficient to prove he had a buyer-seller relationship with the conspiracy and was

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not a member. But Mr. Goodwin made the same claim on direct appeal, and it

cannot be relitigated at this juncture in the absence of a change in the law. United

States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). Mr. Goodwin points to no

change in the law.

      Separately, Mr. Goodwin alleges his counsel was ineffective. To succeed

on a claim of ineffective assistance, a petitioner must demonstrate two things.

First, he must show that his attorney’s performance “fell below an objective

standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

Second, he must prove that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. Before us, Mr. Goodwin offers a variety of theories why,

in his view, his counsel’s performance meets the test set forth in Strickland. The

district court addressed each of these theories in depth (and others still Mr.

Goodwin pursued in district court but no longer pursues here) and found each

wanting under Strickland. After our independent review, we agree with the

district court’s reasoning and result.

      According to Mr. Goodwin, his counsel’s performance at the sentencing

hearing was ineffective because counsel failed to object to the use of crack

cocaine in determining Mr. Goodwin’s base offense level for guidelines purposes.

The district court rejected this argument finding (among other things) that Mr.

Goodwin was not prejudiced because he was not sentenced under the guidelines,

                                          4
but rather received the statutory mandatory minimum sentence available under

§ 841(b)(1)(A). That analysis is correct.

      Mr. Goodwin argues his counsel was ineffective at sentencing in another

way because he (counsel) failed to argue that Mr. Goodwin’s prior state

convictions don’t qualify as offenses punishable under § 841(a). The district

court rejected this claim on the merits and denied a COA because Mr. Goodwin’s

claim raises only non-constitutional sentencing issues and therefore a COA would

be improper. This analysis is correct as well. In particular, when it comes to

issuing a COA 28 U.S.C. § 2253(c)(2) makes clear that a COA may be granted

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” (emphasis added).

      Mr. Goodwin also alleges that his counsel was ineffective in failing to

engage prosecutors in plea negotiations. As the district court held, however, this

claim fails because Mr. Goodwin concedes his counsel discussed with him the

possibility of a lesser sentence if he agreed to provide a truthful proffer to the

government. Further, Mr. Goodwin’s continued assertion, even at this stage, that

he is innocent of the charges against him cuts against any suggestion he would

have accepted a plea agreement.

      Finally, Mr. Goodwin argues that the district court abused its discretion in

not granting an evidentiary hearing where he could present evidence that one of

the DEA agents the prosecution relied upon was subsequently fired for

                                            5
misconduct. But Mr. Goodwin failed to submit any admissible evidence to the

district court to support this assertion. Further, as the district court found, the

agent in question provided corroborating testimony only, and there is no reason to

believe evidence attacking his credibility would have had any bearing on the

jury’s verdict.

      The application for a COA is denied and the appeal is dismissed.


                                         ENTERED FOR THE COURT


                                         Neil M. Gorsuch
                                         Circuit Judge




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