                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 24, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff - Appellee,                       No. 07-3036
       v.                                                  (D. Kansas)
 M ICHA EL C . PEA CH ,                          (D.C. No. 95-CR-10052-M LB)

              Defendant - Appellant.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M ichael Peach seeks a certificate of appealability (COA) following the

denial by the United States District Court for the District of Kansas of his motion

under Fed. R. Civ. P. 60(b) . See 28 U.S.C. § 2253(c) (requiring a COA to pursue

an appeal); Spitznas v. Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006)

(requiring COA to appeal denial of Rule 60(b) motion). He contends (1) that the

district court erred in not allowing him to argue the merits of the ineffective-

assistance-of-counsel claim that he raised in his motion for relief under 28 U.S.C.

§ 2255, and (2) that his trial counsel was ineffective for failing to object to his

retrial on one count of his indictment. We deny a COA and dismiss the appeal.

      In 1995 M r. Peach was convicted on two counts of possession with intent to

distribute crack cocaine, see 21 U.S.C. § 841(a)(1) (1995), and two counts of use
of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)

(1995). He moved for a new trial. The district court granted his motion on one of

the firearms counts, but he was again found guilty on that count. Because he had

already been convicted on one count of having violated § 924(c)(1), the court

sentenced him to 20 years’ imprisonment, to be served consecutively to his

sentences on the other counts. W e affirmed his convictions and sentences on

direct appeal.

      On August 24, 1998, M r. Peach filed a motion for relief under 28 U.S.C.

§ 2255. Among the grounds asserted for relief, he argued that the district court

had improperly enhanced his sentence on the retried count on the basis of a prior

§ 924(c)(1) conviction because, under our holding in United States v. Abreu, 962

F.2d 1447 (10th Cir. 1992), judgment vacated by United States v. Abreu, 508 U.S.

935 (1993), he did not have a prior § 924(c)(1) conviction. He also argued that he

had “suffered ineffective assistance of counsel for not challenging the 924(c)

enhancement.” R. Doc. 155 at 16. On November 20, 1998, the district court

denied his motion. On December 15, 2006, M r. Peach filed a Rule 60(b) motion

to vacate the court’s order denying his motion for relief, arguing that the court

had failed to address his ineffective-assistance-of-counsel claim. The district

court did not rule on the motion, but construed it as a second or successive § 2255

motion and transferred it this court. See 28 U.S.C. § 2255 (requiring second or




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successive motion to be certified as provided in 28 U.S.C. § 2244); id. § 1631

(authorizing transfer of action to proper court).

      W e held that M r. Peach’s motion was not a second or successive § 2255

motion but was a true Rule 60(b) motion because it did not challenge the merits

of the district court’s ruling on his § 2255 motion; rather, it alleged a defect in the

§ 2255 proceedings. See Peach v. United States, 468 F.3d 1269, 1271–72 (10th

Cir. 2006). Therefore the district court had jurisdiction to consider the motion,

and we remanded the case to the district court to rule on it in the first instance.

See id. at 1272.

      On remand the district court determined that it had, in fact, failed to

address M r. Peach’s ineffective-assistance claim in its denial of his § 2255

motion. On the merits, however, it denied relief. It held that counsel had not

been ineffective for failure to invoke Abreu, 962 F.2d 1447, because that decision

had been overruled by the Supreme Court in Deal v. United States, 508 U.S. 129

(1993), three years before M r. Peach had been sentenced.

      In his pleading before this court M r. Peach reasserts his contention that his

counsel was ineffective for having failed to raise a challenge to the § 924(c)(1)

enhancement, and for the first time he argues that his counsel was ineffective for

having failed to object to his retrial on the firearms charge.

      A COA will issue “only if the applicant has made a substantial showing of

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

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requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      W e can readily dispose of both of M r. Peach’s claims of ineffective

assistance of counsel. W ith respect to the claim relating to the § 924(c)(1)

enhancement, no reasonable jurist could debate the district court’s denial of the

claim. And as to the claim based on failure to challenge the new trial, M r. Peach

did not raise this argument below, so we cannot address it. See Moore v. Gibson,

195 F.3d 1152, 1180–81 (10th Cir. 1999).

      Because M r. Peach has failed to make a substantial showing of the denial

of a constitutional right, w e D ENY a COA and DISM ISS the appeal. W e GRAN T

M r. Peach’s motion to proceed in form a pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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