                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 8, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 10-5132
 ARTHUR EARL TAYLOR,                         (D.C. Nos. 4:09-CV-00441-TCK-PJC
                                                  & 4:05-CR-00023-TCK-1)
          Defendant-Appellant.                           (N.D. Okla.)


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


      Before BRISCOE, Chief Judge, TACHA, and MURPHY, Circuit Judges.


      Petitioner Arthur Earl Taylor, a federal prisoner proceeding pro se, seeks a

Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253 in order to

challenge the district court’s denial of his habeas petition filed pursuant to 28

U.S.C. § 2255. Because Taylor has not made the requisite showing for a COA,

we deny his request and dismiss this matter.

                                 I. BACKGROUND

      In 2005, Taylor was convicted by a jury in the United States District Court

for the Northern District of Oklahoma of possessing a firearm and ammunition

after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). ROA, Vol. 1 at 9.


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
The district court sentenced Taylor as an “armed career criminal” pursuant to the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 188 months’

incarceration based on the findings documented in the presentence investigation

report (PSR). 1 See id. at 9–10.

      Specifically, the PSR identified the following four predicate offenses to

sentence Taylor pursuant to the ACCA: (1) Escape from a County Jail, Ottawa

County, Oklahoma, Case Number CRF-78-714 (Ottawa County Escape

Conviction); (2) Second Degree Burglary and Feloniously Pointing a Weapon,

Craig County, Oklahoma, Case Number CF-1982-3 (Craig County Burglary

Conviction); (3) Escape from a Penal Institution, Pittsburg County, Oklahoma,

Case Number CF-1983-396 (Pittsburg County Escape Conviction); and (4) Escape

from a Penal Institution, Atoka County, Oklahoma, Case Number CF-1992-65

(Atoka County Escape Conviction). ROA, Vol. 2 at 14. As Taylor had at least

three prior convictions for “violent felonies,” the PSR applied the ACCA


      1
        An “armed career criminal” is defined as “a person who violates [18
U.S.C. §] 922(g) . . . and has three previous convictions by any court . . . for a
violent felony or a serious drug offense, or both,” 18 U.S.C. § 924(e)(1). See
U.S. Sentencing Guidelines Manual § 4B1.4 (2004). The term “violent felony” is
defined in 18 U.S.C. § 924(e)(2)(B) as:
      any crime punishable by imprisonment for a term exceeding one year . . .
      that --
      (i) has as an element the use, attempted use, or threatened use of physical
      force against the person of another; or
      (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
      involves conduct that presents a serious potential risk of physical injury to
      another.

                                          2
sentencing enhancement resulting in a total offense level of 33. Id. at 13–14.

Based on the offense level of 33 and his criminal history category of IV, the PSR

identified the applicable sentencing range as 188 to 235 months’ incarceration.

Id. at 21. Taylor did not object to the PSR’s findings or calculations. Id. at 7.

      Taylor appealed his conviction arguing that his indictment was improperly

duplicitous, and this court affirmed his conviction. See United States v. Taylor,

193 F. App’x 793 (10th Cir. 2006). Taylor then filed a habeas petition pursuant

to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. ROA, Vol. 1 at

13–16. In his petition, Taylor argued that his Sixth Amendment right to effective

assistance of counsel was violated because both his trial and appellate counsel

failed to challenge the application of the ACCA enhancement. Id. at 13. Based

on the reasoning set forth in Chambers v. United States, 129 S. Ct. 687 (2009),

holding that certain escape offenses did not constitute violent felonies under the

ACCA, Taylor argued that his counsel failed to challenge the use of two escape

convictions – the Atoka County Escape Conviction, and the Pittsburg County

Escape Conviction – as predicate offenses for the enhancement of his sentence.

ROA, Vol. 1 at 13.

      The district court denied Taylor’s § 2255 petition and his application for a

COA. Id. at 66, 77–78. First, because Chambers was decided after Taylor was

convicted and sentenced and given that this circuit’s precedent at the time of

Taylor’s sentencing categorized all escape convictions as violent felonies under

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the ACCA, the district court concluded that Taylor could not establish that his

counsel’s performance was deficient for failing to predict the future change in the

law. Id. at 68–69. Second, the district court concluded that, even if counsel’s

performance was deficient in failing to object, Taylor could not establish that this

error was prejudicial. Id. at 69–72.

      The district court reasoned that, even if his counsel had challenged the use

of the two escape convictions as predicate offenses, the ACCA enhancement

would still have applied to Taylor’s sentence. Id. As Taylor had not challenged

the use of the Ottawa County Escape Conviction and the Craig County Burglary

Conviction as predicate offenses, application of the ACCA enhancement would

have been appropriate if one other predicate offense qualifying as a violent felony

was identified. Id.; see 18 U.S.C. § 924(e)(1). While not separately identified as

a predicate offense, the PSR indicated that Taylor had a prior second degree

burglary conviction in Logan County, Oklahoma. The district court concluded

that this offense constituted a violent felony under the ACCA. ROA, Vol. 1 at

71–72. Further, the district court reasoned that Chambers did not necessitate the

exclusion of the Atoka County Escape Conviction because nothing in the record

suggested that this offense resulted from a failure to return to custody. Id. at 70.

As a result, regardless of whether his counsel had challenged the use of the two

escape convictions as predicate offenses, Taylor had at least three prior

convictions qualifying as predicate offenses for the ACCA enhancement. Id. at

                                          4
72. Taylor now seeks a COA from this court.

                                II. DISCUSSION

      A petitioner must obtain a COA to appeal a district court’s denial of a

habeas petition. 28 U.S.C. § 2253. A COA may be issued only if the petitioner

has made a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). To

make a “substantial showing,” a petitioner must demonstrate “that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation

marks omitted). Because Taylor is proceeding pro se, we construe his pleadings

liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      In support of his COA application in this court, Taylor claims that his right

to effective assistance of counsel was violated by both his trial and appellate

counsel failing to object to the use of his Atoka County Escape Conviction and

his Pittsburg County Escape Conviction as predicate offenses for the ACCA

enhancement. To establish an ineffective assistance of counsel claim, Taylor

must demonstrate: (1) that counsel’s performance was deficient, meaning that

“representation fell below an objective standard of reasonableness” as measured

by “prevailing professional norms,” Strickland v. Washington, 466 U.S. 668,

687–88 (1984); and (2) that counsel’s deficient performance prejudiced him,

                                          5
meaning 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. Taylor cannot establish either component. As a result, he fails to make a

substantial showing of a denial of a constitutional right.

A. Deficient Performance.

      Taylor cannot establish that his counsel performed deficiently by failing to

challenge the application of the ACCA enhancement based on the two identified

escape convictions. The Sixth Amendment right to effective assistance of counsel

does not require counsel to predict future changes in the law. See United States

v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004) (“The Sixth Amendment does not

require counsel for a criminal defendant to be clairvoyant.”); Brown v. United

States, 311 F.3d 875, 878 (8th Cir. 2002) (“[C]ounsel’s decision not to raise an

issue unsupported by then-existing precedent [does] not constitute ineffective

assistance.”).

      At the time of Taylor’s conviction and sentencing, the precedent in this

circuit was that all escape offenses were considered violent felonies under the

ACCA. See United States v. Moudy, 132 F.3d 618, 620 (10th Cir. 1998); United

States v. Moore, 401 F.3d 1220, 1226 (10th Cir. 2005). On January 13, 2009, the

Supreme Court decided Chambers, holding that certain types of escape offenses

did not constitute violent felonies under the ACCA. Taylor’s trial and appellate

counsel did not perform deficiently by failing to predict the holding in Chambers.

                                          6
Because Taylor cannot demonstrate that his counsel’s performance was deficient,

he fails to establish that his right to effective assistance of counsel was violated.

B. Prejudice.

      Taylor cannot establish that the failure to challenge the use of the two

identified escape convictions as predicate offenses for the ACCA enhancement

was prejudicial. Assuming, without deciding, that both of the challenged escape

convictions would not constitute violent felonies under the ACCA in light of

Chambers, the PSR still identified at least three prior convictions that would have

qualified as predicate offenses for the ACCA enhancement. Specifically, Taylor

did not challenge the use of the Ottawa County Escape Conviction and the Craig

County Burglary Conviction. Further, although not explicitly identified as a

predicate offense, the PSR documented a prior conviction for Burglary - Second

Degree in Logan County, Oklahoma in Case Number CRF-1978-45. ROA, Vol. 2

at 15. According to the PSR, this conviction involved the “breaking open [of] the

outer walk in door located on the west side of the building without consent of the

owner.” Id. Further, in the criminal complaint for this offense, Taylor entered

the building “with the wilful, felonious and burglarious intent to steal said

property.” ROA, Vol. 1 at 45. Taylor pled guilty to this offense. Id. at 46.

      A burglary conviction constitutes “burglary” under the ACCA and may be

used as a predicate offense for the ACCA enhancement if it has “the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

                                           7
structure, with the intent to commit a crime.” Taylor v. United States, 495 U.S.

575, 598 (1998). While the Oklahoma second degree burglary statute defines

burglary more broadly than generic burglary under the ACCA, see United States

v. Hill, 53 F.3d 1151, 1153 (10th Cir. 1995) (en banc); see also Shepard v. United

States, 544 U.S. 13, 15–16 (2005) (limiting generic burglaries under the ACCA to

those “committed in a building or enclosed space”), the PSR’s notation that this

offense involved the breaking into a building with the intent to commit a crime

indicates that this offense constituted generic burglary under the ACCA. Thus,

this prior burglary conviction would have qualified as a predicate offense for the

ACCA enhancement. Because, even when excluding the two challenged escape

convictions, he had three prior convictions that qualified as predicate offenses for

the ACCA enhancement, Taylor cannot establish that the asserted error was

prejudicial.

                               III. CONCLUSION

      Because Taylor cannot demonstrate that his Sixth Amendment right to

effective assistance of counsel was violated, he failed to make a substantial

showing that he was denied a constitutional right. Thus, we deny his COA

request and dismiss this matter.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge

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