                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             July 25, 2014
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                          No. 13-5146
                                                (D.C. Nos. 4:12-CV-00264-GKF-FHM
 MICHAEL LYNN CRISP,                                and 4:08-CR-00158-GKF-1)
                                                             (N.D. Okla.)
        Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Defendant Michael Crisp, a federal prisoner, filed a motion for relief under

28 U.S.C. § 2255 in the United States District Court for the Northern District of

Oklahoma. The district court denied his motion as untimely. Defendant now seeks a

certificate of appealability (COA) from this court to pursue an appeal. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal denial of § 2255 application). He argues that

his motion was not untimely because it came within one year of Supreme Court decisions

establishing a newly recognized right. He also challenges 10th Cir. R. 22.1(A), which
requires applicants to file a brief when seeking a COA from this court. We deny a COA,

reject the challenge to our local rule, and dismiss the appeal.

I.     BACKGROUND

       Defendant was indicted for possession with intent to distribute more than 50 grams

of cocaine base. The cocaine was discovered after a search of his mother’s home.

Defendant challenged admission of the cocaine in the district court, arguing that the

search exceeded the scope of his mother’s consent. He also challenged the admission of

self-incriminating statements. After the district court denied the motions to suppress,

Defendant pleaded guilty under a plea agreement and generally waived his right to

appeal, but he preserved his rights to appeal the decision on the motions to suppress and

to file claims in a § 2255 motion “based on ineffective assistance of counsel which

challenge the validity of the guilty plea or this waiver.” Plea Agreement at 3, United

States v. Crisp, No. 08-CR-158-GKF (N.D. Okla. Nov. 25, 2008). He was sentenced to

276 months’ imprisonment. He appealed the refusal to suppress his self-incriminating

statements, although not the denial of his motion to suppress the cocaine, and this court

affirmed his conviction. See United States v. Crisp, 371 F. App’x 925 (10th Cir. 2010).

       Our decision on Defendant’s appeal was filed on April 5, 2010. Defendant did not

seek rehearing or petition for certiorari. On May 7, 2012, he filed a pro se motion for

relief under § 2255, arguing (1) that a previous conviction did not qualify as a felony

conviction under federal law and should not have been used to enhance his sentence, and

(2) that the search of his mother’s house was unlawful. The government moved to
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dismiss the motion on the grounds that it was untimely and that Defendant raised issues

waived in the plea agreement. Defendant retained counsel and moved to amend his

§ 2255 motion to include a claim for ineffective assistance of appellate counsel based on

counsel’s failure to appeal the district court’s denial of his motion to suppress evidence

found in the search. The district court dismissed the § 2255 motion as untimely, and

Defendant now seeks a COA from this court.

II.    DISCUSSION

       A.     Standard of Review

       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 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. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. 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.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
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that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id. While the inquiry into whether a COA should issue

“does not require full consideration of the factual or legal bases adduced in support of the

claims,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), “[a] prisoner seeking a COA

must prove something more than the absence of frivolity or the existence of mere good

faith on his or her part,” id. at 338 (internal quotation marks omitted).

       B.     Timeliness of Habeas Petition

       Defendant’s sole argument in support of timeliness is that reasonable jurists could

debate whether his § 2255 motion was filed within one year of the initial recognition by

the Supreme Court of a “right [that] has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).

He relies on the Supreme Court decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012),

and Lafler v. Cooper, 132 S. Ct. 1376 (2012), both of which addressed a defendant’s right

to effective assistance of counsel when entering a guilty plea. But neither decision

recognized a new right.

       Defendant concedes that we held in In re Graham, 714 F.3d 1181, 1183 (10th Cir.

2013), that Frye and Lafler “do not establish a new rule of constitutional law.”

Nevertheless, he attempts to distinguish Graham on the ground that it was not applying

§ 2255(f), but rather § 2255(h), which concerns whether a prisoner is allowed to bring a

second or successive § 2255 motion. We are not persuaded. We resolved the substance

of Defendant’s issue in Graham when we observed that “[t]he Supreme Court's language
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in Lafler and Frye confirm that the cases are merely an application of the Sixth

Amendment right to counsel, as defined in Strickland [v. Washington, 466 U.S. 668

(1984)], to a specific factual context.” 714 F.3d at 1183 (internal quotation marks

omitted). Of particular significance is that both Frye and Lafler were decided in

postconviction proceedings. Thus, the prisoners in those cases were able to obtain relief

only because of a violation of “clearly established federal law,” as determined by the

Supreme Court. Graham, 714 F.3d at 1183; see Lafler, 132 S. Ct. at 1390. The rationale

for the exception to the usual limitations period provided by § 2255(f)(3) is to give

prisoners an opportunity to bring claims when they could not have known of their rights

before a recent Supreme Court decision. That rationale could not apply here. After all,

the controlling law had long been “clearly established.” Defendant could have followed

the example of Lafler, who had known to bring his claim under 28 U.S.C. § 2254 well

before Defendant filed his direct appeal in this case. Hence, we hold that Defendant’s

§ 2255 motion was untimely. See United States v. Sheridan, No. 13-2204, 2014 WL

1363971, at *2 (10th Cir. Apr. 8, 2014) (rejecting reliance on Frye and Lafler to obtain

tolling under § 2255(f)(3)); United States v. Lawton, 506 F. App’x 722, 726 (10th Cir.

2012) (same).

       Defendant also argues that these, and similar decisions in other circuits, should be

ignored because they all apply the retroactivity analysis outlined in Teague v. Lane, 489

U.S. 288 (1989), and that analysis does not apply to federal convictions challenged under

§ 2255. We have held, however, that “Teague’s nonretroactivity doctrine applies equally
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to habeas petitions brought under sections 2254 and 2255.” Daniels v. United States, 254

F.3d 1180, 1194 (10th Cir. 2001) (en banc).

       No reasonable jurist would debate the district court’s determination that Frye and

Lafler did not announce a new constitutional right that would extend the limitations

period under § 2255(f)(3).

       C.     Challenge to Local Rule 22.1

       Defendant also argues that our local rule 22.1(A) is unlawful. The rule reads:

“Required form. Although a notice of appeal constitutes a request for a certificate of

appealability, the appellant must also file a brief. The circuit clerk will provide pro se

appellants a form for this purpose which serves as both a brief and a request for a

certificate.” 10th Cir. R. 22.1(A). Defendant asserts that this rule is contrary to Fed. R.

App. P. 27(a)(1), which states that an application for an order (which presumably

includes a request for a COA) should be made by motion, and to 28 U.S.C. § 2253(c),

which states that appellate courts lack jurisdiction to hear the merits of a § 2255 appeal

until a COA has been granted.

       We reject Defendant’s challenge to our local rule. The rule does not violate any

rule of appellate procedure or any statute. There is nothing unusual about requiring briefs

in support of motions. And we cannot grant a COA unless we are persuaded that there is

some merit to the applicant’s claims on the merits. If Defendant is simply complaining

about our nomenclature for memoranda that are obviously necessary for the performance


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of our work, he is being silly. If he is complaining about the substance of what this court

requires for it to resolve his request for a COA, he is being obtuse.

III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal.



                                           ENTERED FOR THE COURT


                                           Harris L Hartz
                                           Circuit Judge




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