                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      April 1, 2010
                                 TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-2167
 v.                                          (D.C. Nos. 1:09-CV-00399-LH-RHS
                                                 and 2:01-CR-00218-LH-1)
 PERCY HOLCOMB,                                           (D.N.M.)

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Percy Holcomb applies for a certificate of appealability (“COA”) to

challenge the district court’s dismissal of his 28 U.S.C. § 2255 motion as

untimely. Mr. Holcomb also requests to proceed on appeal in forma pauperis

(“IFP”). For the reasons stated below, we deny Mr. Holcomb’s request for a

COA, deny his request to proceed IFP, and dismiss this matter.



      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1. After examining the appellate record, this three-judge
panel determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
I. Background

      While incarcerated in Texas, Mr. Holcomb filed a pro se 1 motion to vacate,

set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, in the United

States District Court for the District of New Mexico. Mr. Holcomb pleaded guilty

and was convicted of drug and firearms charges under 21 U.S.C. § 841(b)(1)(B)

and 18 U.S.C. § 924(c)(1)(A)(ii). The presentence report recommended that Mr.

Holcomb receive at least one criminal history point under § 4A1.2 of the U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) for his prior state DUI convictions.

On July 9, 2002, the district court entered judgment on his conviction, and Mr.

Holcomb did not appeal.

      Mr. Holcomb filed his § 2255 motion nearly seven years later, on April 20,

2009, arguing that his sentence should be reduced as a consequence of an

intervening change in the law and that his counsel had provided him with

constitutionally ineffective assistance by not anticipating this change in the law.

Mr. Holcomb contended that Begay v. United States, 553 U.S. 137, 128 S. Ct.

1581 (2008), recognized a new right, and thus, the district court should resentence

him without assessing any criminal history points for his prior state DUI

convictions.

      The district court disagreed and dismissed his motion, holding that his

      1
              Because Mr. Holcomb proceeds pro se, we liberally construe his
filings, including his application for a COA. See Van Deelen v. Johnson, 497
F.3d 1151, 1153 n.1 (10th Cir. 2007).

                                          2
motion was untimely filed. Mr. Holcomb argued that his motion was timely

under the accrual provisions in 28 U.S.C. § 2255(f)(3); however, the district court

pointed out that “[t]he Begay ruling provides no basis for relief from Defendant’s

sentence. . . . Defendant was charged and convicted under [18 U.S.C.] § 924(c),

while the Begay opinion analyzes the terms of [18 U.S.C.] § 924(e).” R. at 29

(Dist. Ct. Mem. Op. & Order, filed June 4, 2009). The district court also held

that “the Begay opinion contains no language making the decision retroactive.”

Id. Therefore, the district court concluded that “[b]ecause Defendant’s

allegations do not implicate a ‘right [that] has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review,’

the motion is untimely and will be dismissed.” Id. (second alteration in original)

(citation omitted) (quoting 28 U.S.C. § 2255(f)(3)). The district court also issued

an order denying Mr. Holcomb’s request for a COA because it found Mr.

Holcomb had failed to make a substantial showing of a denial of a constitutional

right. Mr. Holcomb then filed an application for a COA with this court.

II. Analysis

      A defendant may not appeal the district court’s denial of a § 2255 petition

without first obtaining a COA from this court. 28 U.S.C. § 2253(c)(1)(B). We in

turn may only issue a COA where “the applicant has made a substantial showing

of the denial of a constitutional right.” Id. § 2253(c)(2). To overcome this

hurdle, Mr. Holcomb must show “that jurists of reason could disagree with the

                                         3
district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); accord Allen v.

Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); Coppage v. McKune, 534 F.3d

1279, 1281 (10th Cir. 2008).

      “If the application was denied on procedural grounds, the applicant faces a

double hurdle. Not only must the applicant make a substantial showing of the

denial of a constitutional right, but he must also show ‘that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.’” Coppage, 534 F.3d at 1281 (ellipsis in original) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). “‘Each component of the § 2253(c)

showing is part of a threshold inquiry, and a court may find that it can dispose of

the application in a fair and prompt manner if it proceeds first to resolve the issue

whose answer is more apparent from the record and arguments.”’ United States v.

Springfield, 337 F.3d 1175, 1177 (10th Cir. 2003) (quoting Slack, 529 U.S. at

485). Therefore, we have the discretion to proceed directly to the issue of

whether the petitioner has made a substantial showing of a denial of a

constitutional right. See id. at 1177–78. Unless we grant a COA, we lack

jurisdiction to resolve the merits of a habeas appeal. Miller-El, 537 U.S. at 342.

      On appeal, Mr. Holcomb presses the same arguments he made in the district

court. Specifically, he claims a Sixth Amendment ineffective-assistance-of-

                                           4
counsel violation based upon Begay and an error in the district court’s sentencing

computation. We proceed to the substantive question of whether either of Mr.

Holcomb’s claims make a substantial showing of a denial of a constitutional right.

Concluding that they do not, we deny Mr. Holcomb’s request for a COA and

dismiss this matter. 2

      Because Mr. Holcomb’s COA application rests in part on a claim of

ineffective assistance of counsel, in order to determine if he can make a

substantial showing of a denial of a constitutional right, we must first undertake

an analysis of his claim in light of the familiar two-part test for ineffective

assistance outlined in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, a petitioner must show, first, that counsel’s performance was

deficient—that the “representation fell below an objective standard of

reasonableness,” as measured by “prevailing professional norms.” Id. at 687–88.

Second, the petitioner must establish prejudice—“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. We can review these two

components in any order and do not need to address both “if the defendant makes


      2
             We therefore need not (and do not) opine regarding the district
court’s procedural analysis and, more specifically, its conclusion that Mr.
Holcomb’s “allegations [concerning Begay] do not implicate a ‘right [that] has
been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review.”’ R. at 29 (second alteration in original) (quoting 28
U.S.C. § 2255(f)(3)).

                                           5
an insufficient showing on one.” Id. at 697.

      Mr. Holcomb’s ineffective-assistance-of-counsel claim necessarily fails on

both parts of the Strickland test. Mr. Holcomb’s argument reflects a fundamental

misunderstanding of Begay’s holding and its impact on his sentencing. “In

Begay, the Court held that the New Mexico felony offense of DUI was not a

‘violent felony’ within the meaning of the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(1), because ‘[i]t is simply too unlike the provision’s listed

example[s] for us to believe that Congress intended the provision to cover it.’”

United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir. 2008) (first alteration in

original) (quoting Begay, 128 S. Ct. 1584). Begay is inapposite to the question of

whether a defendant should receive one point for a state DUI under U.S.S.G.

§ 4A1.2. The resolution of this question ordinarily turns on whether the

particular state impaired-driving offense falls into the category of “[m]inor traffic

infractions,” which are not counted for purposes of computing a defendant’s

criminal history. U.S.S.G. § 4A1.2(c)(2); see, e.g., United States v. Walling, 974

F.2d 140, 142 (10th Cir. 1992). On this subject, the Sentencing Commission has

spoken clearly: “Convictions for driving while intoxicated or under the influence

(and similar offenses by whatever name they are known) are counted. Such

offenses are not minor traffic infractions . . . .” U.S.S.G. § 4A1.2 cmt. n.5

(emphasis added).

      Even assuming (as is likely) that under Begay Mr. Holcomb’s state DUI

                                          6
convictions no longer qualify as violent felonies or crimes of violence, it does not

follow that Begay could be read as having the alchemizing effect of transforming

Mr. Holcomb’s prior state DUI convictions into minor traffic infractions—which

would not be countable under the Guidelines, nor constitute a possible basis for

criminal history points. To be sure, “the Court’s reasoning in Begay applies

equally to sentencing guidelines,” and, more specifically, we have held that

Begay’s reasoning does exclude state DUI offenses from the “crime of violence”

category under the career-offender enhancement of U.S.S.G. § 4B1.1. See Tiger,

538 F.3d at 1298. However, Begay simply does not speak to the issue of whether

a state DUI offense is a “minor traffic infraction,” which would not be countable

under U.S.S.G. § 4A1.2. In other words, Begay has no bearing on the sentencing

issue that Mr. Holcomb advances here. Consequently, because Begay is

irrelevant, Mr. Holcomb’s counsel cannot be deemed constitutionally deficient for

failing to anticipate Begay’s application to Mr. Holcomb’s case, and Mr. Holcomb

could not have been prejudiced by counsel’s failure to raise the principle of Begay

at his sentencing. Therefore, Mr. Holcomb has failed to make a substantial

showing of a denial of a constitutional right regarding his ineffective-assistance-

of-counsel claim, and we cannot issue a COA for this claim.

      Mr. Holcomb’s second argument arises outside of the constitutional

framework of an ineffective-assistance-of-counsel claim. He simply argues that

the district court miscalculated his sentence because, under Begay, “DUI’s are no

                                          7
longer consider[ed] as ‘crime[s] of violence’ [and] thus should not be counted

within the § 4A1.2 of the guidelines.” Aplt. Br. at 3. For the reasons noted

above, this argument reflects a patent and important misunderstanding of Begay.

More fundamentally, however, the argument does not provide the basis for the

issuance of a COA because it constitutes no more than an assertion of non-

constitutional sentencing error. See United States v. Gordon, 172 F.3d 753, 754

(10th Cir. 1999) (“Petitions may be filed in district court alleging violations of

the Constitution or federal law. The claims may only be appealed, however, if

they involve the denial of constitutional rights. Applying the plain language of

§ 2253(c)(2), we may not issue a COA for Defendant’s nonconstitutional Rule 32

claims.” (third emphasis added) (citation omitted)); United States v. Harfst, 168

F.3d 398, 400 (10th Cir. 1999) (“At least facially, the two issues raised are both

nonconstitutional sentencing issues that . . . by themselves would not support

issuance of a certificate of appealability because they do not assert the denial of a

constitutional right.” (emphasis added)); cf. United States v. Shipp, 589 F.3d

1084, 1088 (10th Cir. 2009) (construing a prisoner’s “petition for a COA to raise

a due process challenge to the length of his sentence,” where the possible import

of a subsequent Supreme Court decision was that the prisoner was sentenced

above the statutory maximum for his offense of conviction). Consequently, Mr.

Holcomb cannot perforce make a substantial showing of the denial of a

constitutional right. And we are not situated to issue a COA concerning this

                                          8
claim.

         Finally, Mr. Holcomb is not entitled to proceed IFP because he has failed to

identify ‘“the existence of a reasoned, nonfrivolous argument on the law and facts

in support of the issues raised on appeal.’” McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991)).

         For the foregoing reasons, we DENY Mr. Holcomb’s request for a COA

and DISMISS this matter. We also DENY Mr. Holcomb’s motion to proceed

IFP.



                                         ENTERED FOR THE COURT



                                         Jerome A. Holmes
                                         Circuit Judge




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