                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 18, 2009

                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-5139
 KENNETH MAURICE WOODS,                         (D.C. Nos. CR-99-020-K and
                                                       CV-02-829-K)
          Defendant-Appellant.                       (N. D. Oklahoma)



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Kenneth Woods, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Woods

has failed to satisfy the standards for the issuance of a COA, we deny his request

and dismiss the matter.

                                         I.

      In September of 1999, Woods was convicted of one count of conspiracy to

distribute various controlled substances and one count of distributing heroin.



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Woods was sentenced to a term of imprisonment of 216 months, to be followed by

a five-year term of supervised release. This court affirmed Woods’ convictions

and sentence on direct appeal. United States v. Busby, 16 F. App’x 817 (10th

Cir. 2001). On October 29, 2001, the United States Supreme Court denied

Woods’ petition for writ of certiorari. Woods v. United States, 534 U.S. 1012

(2001).

      On October 28, 2002, Woods filed a § 2255 motion to vacate, set aside, or

correct sentence arguing that (1) there was a fatal variance between the

indictment, which alleged a single, nine-year-long conspiracy, and the

government’s evidence at trial, which established the existence of multiple,

shorter conspiracies, (2) the district court committed plain error by sentencing

him on the basis of inaccurate information proffered by the government and

recounted in the presentence report, (3) his counsel was ineffective for failing to

make objections during trial and at sentencing, and for failing to raise meritorious

arguments on direct appeal, and (4) enhancement of his sentence based upon prior

state court convictions constituted multiple punishment triggering double

jeopardy protections. Woods subsequently filed three motions seeking,

purportedly, to amend the issues contained in his § 2255 motion. On July 28,

2008, the district court issued an order denying Woods’ motions to amend, and

denying on the merits the four issues raised in Woods’ § 2255 motion.

      Woods filed a timely notice of appeal and a request for COA. The district

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court denied Woods’ request for COA. Woods has now renewed his request for

COA with this court.

                                          II.

      The issuance of a COA is jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A

COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make such a

showing, an applicant must demonstrate “that 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)

(citation and internal quotation marks omitted). “When the district court denies a

habeas petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when 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.” Id.

      Woods first seeks a COA in order to challenge the district court’s denial of

his third motion to amend his § 2255 motion. In that third motion, which was

filed on December 10, 2003, Woods requested “leave to amend . . . his initial 28

U.S.C. § 2255 Petition” to include two arguments: (1) “that the general verdict

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only authorize[d] the District Court to sentence [Woods] to the lesser included

offense, conspiracy to distribute five (5) grams of heroin,” and (2) Woods’

“attorney rendered ineffective assistance of counsel for failing to raise the

ambiguous general verdict issue at sentencing or on direct appeal.” ROA, Vol. 1,

Doc. 607 at 1. The district court concluded it was “precluded from considering

the[se] new claims because they d[id] not ‘relate back’ to the original § 2255

motion” under Federal Rule of Civil Procedure 15(c)(2) “and [we]re [thus] barred

by the one-year statute of limitations provided by the Antiterrorism and Effective

Death Penalty Act . . . .” Id., Doc. 759 at 4-5. Although Woods now argues in

his application for COA that the two issues identified in his third motion to

amend related back to the first substantive claim alleged in his § 2255 motion, we

are not persuaded, after reviewing the record on appeal and the materials

submitted by Woods, that “jurists of reason would find it debatable whether the

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

      Woods also seeks a COA in order to challenge the district court’s rejection

of the first substantive claim alleged in his § 2255 motion, i.e., his fatal variance

claim. In disposing of that claim, the district court noted that the same claim was

“considered and rejected by” this court “on direct appeal,” and that “Woods ha[d]

failed to demonstrate the existence of an intervening change in the law of this

circuit or any other reason justifying reconsideration of [this court’s] rejection of

th[at] claim[].” ROA, Vol. 1, Doc. 759 at 8. In his application for COA, Woods


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makes no attempt to explain why the district court should have deviated from the

longstanding rule that, “[a]bsent an intervening change in the law of [this] 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). Thus, we conclude Woods has failed to establish his

entitlement to a COA on this issue.

      The application for COA is DENIED and the matter is DISMISSED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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