                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               July 30, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 17-6215
                                                     (D.C. Nos. 5:17-CV-00834-C and
 DAVID CHARLES BALDWIN, II,                                5:15-CR-00245-C-1)
                                                              (W.D. Okla.)
       Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY *
                     _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

       David Charles Baldwin II, a federal prisoner appearing pro se, seeks a certificate

of appealability (COA) under 28 U.S.C. § 2253(c)(1) to challenge the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. 1 He

also moves to proceed in forma pauperis (IFP). We deny him a COA and we deny his

IFP motion.



       *
         This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
        We liberally construe pro se litigants’ pleadings, holding them to “a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972)). Though we can’t “assume the role of advocate,” we’ll excuse citation gaps,
untangle confused legal theories, and overlook poor syntax. Id.
                                    BACKGROUND

       On November 18, 2015, a federal grand jury indicted Baldwin for sixteen offenses

related to his participation in a steroid-distribution and money-laundering conspiracy.

Baldwin retained counsel, who approached the government and secured a plea

agreement. Had Baldwin carried through with the plea agreement, he would have pleaded

guilty to Count 1 of the indictment, drug conspiracy, a violation of 21 U.S.C. § 846, and

Count 4 of the indictment, money-laundering conspiracy, a violation of 18 U.S.C.

§§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). As part of the agreement, Baldwin would have

had to forfeit $3,202,126.54 as proceeds of his illegal activity. But Baldwin decided

against proceeding with the plea agreement, telling counsel “that he wanted to contest the

forfeiture amount in the agreement.” R. at 133. So counsel informed him that to contest

the forfeiture amount, he “could enter a plea to all counts and contest” it “with the judge

at sentencing.” Id.

       Before Baldwin pleaded guilty, counsel “discussed with him possible

enhancements that could affect his advisory Sentencing Guideline range.” Id. at 134.

Baldwin then pleaded guilty to all sixteen counts without an underlying plea deal. When

asked on his guilty-plea petition if any promise had been made by anyone that caused

him to plead guilty aside from a plea agreement, Baldwin checked a space labeled “No.”

Id. at 42. After Baldwin pleaded guilty, counsel again discussed with him possible

sentencing enhancements.

       Before sentencing, counsel met with the Assistant United States Attorney (AUSA)

assigned to Baldwin’s case and other officials to discuss “the evidence that would be

                                             2
presented at the sentencing in regard to forfeiture.” Id. at 134. During the meeting, it soon

became clear to counsel “that the charged amount of forfeiture . . . was millions of dollars

less” than the government could have pursued and proven. Id. And “[i]n light of that

information,” Baldwin agreed to the charged forfeiture amount. R. at 134.

       Baldwin’s probation officer compiled his presentence investigation report, which

included several recommended sentencing-guideline enhancements including

§§ 2D1.1(b)(1), (7), (9), (12), (15), 2S1.1(b)(2)(B), (b)(3), and 3B1.1(a) of the sentencing

guidelines. U.S. Sentencing Guidelines Manual (U.S.S.G.) §§ 2D1.1(b)(1), (7), (9), (12),

(15), 2S1.1(b)(2)(B), (b)(3), and 3B1.1(a) (U.S. Sentencing Comm’n 2016). Baldwin

objected to the following enhancements: (1) § 2D1.1(b)(1), possessing a firearm;

(2) § 2D1.1(b)(9), distributing an anabolic steroid to an athlete; (3) § 2D1.1(b)(12),

maintaining a residence for the purpose of manufacturing or distributing a controlled

substance; (4) § 2S1.1(b)(3), sophisticated money laundering; and (5) § 3B1.1(a), a role

adjustment. Because “Baldwin used an internet messaging board to sell” steroids, and

because his counsel “believed the enhancement applied,” counsel didn’t object to the

§ 2D1.1(b)(7) enhancement. R. at 134. Similarly, because “Baldwin imported all of his

[steroids] from Hong Kong or China and he had no source of income” other than selling

steroids for “multiple years,” counsel didn’t object to the § 2D1.1(b)(15) enhancement.

Id. at 135. And because Baldwin pleaded guilty to 18 U.S.C. § 1956, his counsel didn’t




                                             3
object to the § 2S1.1(b)(2)(B) enhancement. The district court sentenced Baldwin to 84

months of imprisonment, to be served concurrently. 2 Baldwin never filed a direct appeal.

       On August 3, 2017, Baldwin filed a 28 U.S.C. § 2255 motion to vacate, set aside,

or correct his sentence. Baldwin made five arguments in his motion. First, he argued he

had received ineffective assistance of counsel, because (a) counsel told him that the

AUSA would drop the § 2D1.1(b)(1) firearm enhancement, (b) counsel told him that if he

didn’t “take the plea deal the AUSA was offering we would plead guilty to all counts and

have a hearing with a judge only,” id. at 95, and (c) counsel said he would object to the

sentencing enhancements. Second, he argued that the sentencing court had improperly

enhanced his sentence using § 2D1.1(b)(1), the firearm enhancement. Third, he argued

that the sentencing court had improperly piled on enhancements to double his sentencing-

guideline range. Fourth, he argued the sentencing court had improperly enhanced his

sentence using § 2D1.1(b)(9), because he didn’t “solicit to or distribute” steroids “to any

known athletes.” Id. at 102. And fifth, he argued that the sentencing court had improperly

enhanced his sentence under § 2D1.1(b)(12), because his residence “was not a special

‘premises’ maintained to receive, or distribute the product of his crime.” Id.

       The government responded to Baldwin’s motion, dividing Baldwin’s arguments

into two categories: (1) ineffective-assistance-of-counsel claims; and (2) challenges to his

sentence. To answer Baldwin’s ineffective-assistance-of-counsel claims, the government

provided an affidavit from Baldwin’s formerly retained counsel. In that affidavit, counsel


       2
           The Presentence Investigation Report wasn’t furnished in the record on
appeal.
                                             4
stated that he never had an agreement with the AUSA to drop the § 2D1.1(b)(1) firearm

enhancement. Counsel also stated that “if [Baldwin] did not want the plea offer from the

Government he could enter a plea to all counts and contest” the forfeiture amount “with

the judge at sentencing.” Id. at 133. Finally, counsel explained which enhancements he

had objected to and which he hadn’t and why.

       The government then argued that Baldwin’s failure to file a direct appeal

procedurally barred his ability to challenge his sentence. And, it argued, Baldwin failed to

show either cause for failing to file that appeal or that a fundamental miscarriage of

justice would occur if the court didn’t address his claim. Specifically, the government

noted that Baldwin’s § 2255 motion didn’t “mention[] the word appeal, let alone show[]

cause for not pursuing an appeal as required.” R. at 127. Baldwin replied to the

government’s response, now alleging that he “was never offered a direct appeal and

therefore [was] denied a direct appeal.” Id. at 139. And he asserted he had received

ineffective assistance “when counsel failed to file Baldwin’s appeal in the Tenth Circuit

of Appeals, after Baldwin asked for such appeal.” Id.

       The district court denied Baldwin’s § 2255 motion. On Baldwin’s ineffective-

assistance claims, the court concluded as follows: (1) because counsel’s affidavit and

Baldwin’s guilty plea petition both established that no agreement to drop the

§ 2D1.1(b)(1) firearm enhancement existed with the AUSA, Baldwin couldn’t show

deficient performance under Strickland v. Washington, 466 U.S. 668, 688 (1984);

(2) Baldwin couldn’t show that he would have chosen to go to trial if he had known his

counsel wouldn’t challenge the forfeiture amount with the judge; and (3) because counsel

                                             5
had objected to sentencing enhancements where appropriate, Baldwin hadn’t received

ineffective assistance. The district court also determined that Baldwin’s challenges to his

sentencing enhancements were procedurally barred because he failed to raise them in a

direct appeal. The court also denied Baldwin a COA and denied his IFP motion. Baldwin

now appeals.

                                       DISCUSSION

       Before he may appeal, Baldwin must obtain a COA. 28 U.S.C. § 2253(c)(1). To

obtain a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant

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.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th

Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the relevant

legal questions are whether (1) Baldwin received ineffective assistance of counsel, and

(2) whether we may consider his challenges to his sentence. After answering these

questions, we address Baldwin’s request for an evidentiary hearing and his IFP motion.

I.     Ineffective Assistance

       Ineffective assistance is shown where (1) “counsel’s representation fell below an

objective standard of reasonableness,” Strickland, 466 U.S. at 688, and (2) counsel’s

deficient performance prejudiced the defendant, id. at 692. If a movant fails to satisfy

either prong, his ineffective-assistance claim fails. Id. at 697. On appeal, Baldwin makes

four ineffective-assistance claims: (1) that he asked counsel to file a direct appeal, and his

                                              6
counsel didn’t; (2) that counsel advised him that the AUSA would drop the § 2D1.1(b)(1)

enhancement; (3) that counsel caused him to enter an unknowing and involuntary guilty

plea; and (4) that counsel failed to explain what enhancements the court would likely

impose.

       First, Baldwin claims that he received ineffective assistance, because he told

counsel to file a direct appeal and counsel didn’t. Baldwin didn’t make this argument in

his initial § 2255 motion. He made it in his reply to the government’s response to his

§ 2255 motion, the latter of which included counsel’s affidavit. Rule 7(c) of the Rules

Governing Section 2255 Proceedings requires the district court to give a party to a § 2255

motion “against whom [] additional materials are offered an opportunity to admit or deny

their correctness.” So because the government in this case attached counsel’s affidavit to

its response, Rule 7(c) required the court to allow Baldwin to admit or deny the

correctness of the facts as asserted by counsel. United States v. Hill, 336 F. App’x 832,

834 (10th Cir. 2009). The district court did so. But Rule 7(c) permitted Baldwin only to

admit or deny the contents of counsel’s affidavit, not to raise new arguments beyond

those stated in his § 2255 motion. Baldwin waived this argument by failing to raise it

until his reply to the government. Cf. United States v. Pickel, 863 F.3d 1240, 1259 (10th

Cir. 2017) (determining that when a party “makes [an] argument for the first time in his

reply brief,” it is waived). Because Baldwin waived this argument, it deserves no

encouragement to proceed further.

       Second, Baldwin can’t show deficient performance where he claims counsel told

him the AUSA promised to drop the § 2D1.1(b)(1) firearm enhancement. Counsel denies

                                             7
having told Baldwin that such an agreement existed. And when asked on his guilty-plea

petition whether “any promise” had been made “by anyone that cause[d]” him to plead

guilty aside from a plea agreement, Baldwin marked a box labeled, “No.” R. at 42.

Baldwin provides no other evidence to the contrary, so the district court’s decision on this

point isn’t debatable.

       Baldwin’s third and fourth arguments fail “because []he did not raise them before

the district court in [his] original § 2255 motion.” United States v. Allen, 497 F. App’x

853, 854 (10th Cir. 2012). So these arguments aren’t deserving of encouragement to

proceed further.

II.    Sentencing Enhancements

       Baldwin also asserts that the sentencing court improperly enhanced his sentence.

But § 2255 isn’t an avenue to test the legality of issues which should have been raised in

a direct appeal. United States v. Walling, 982 F.2d 447, 448 (10th. Cir. 1992) (quoting

United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987)). Baldwin’s “failure to address

this issue in [a] direct appeal bars review unless he can show cause and resulting

prejudice.” Id. at 448–49. Baldwin didn’t attempt to show cause and prejudice for failing

to raise these challenges to his sentencing enhancements in a direct appeal before the

district court and he fails to do so now. And “[w]here a plain procedural bar is present

and the district court is correct to invoke it to dispose of the case, a reasonable jurist




                                               8
could not conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.



III.   Evidentiary Hearing

       Baldwin argues that the district court should have granted him an evidentiary

hearing over whether the sentencing court improperly enhanced his sentence. “We review

the district court’s refusal to hold an evidentiary hearing for an abuse of discretion.”

United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (quoting United States v.

Harms, 371 F.3d 1208, 1210 (10th Cir. 2004)). An evidentiary hearing is required for a

§ 2255 motion “[u]nless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Because Baldwin’s

arguments challenging his sentencing enhancements are procedurally barred, the records

of the case conclusively show that he isn’t entitled to relief. So the district court didn’t

abuse its discretion by failing to hold an evidentiary hearing.

IV.    IFP Motion

       We conclude that Baldwin hasn’t asserted a reasoned, non-frivolous argument on

appeal, so we deny his IFP motion. McIntosh v. United States Parole Comm’n, 115 F.3d




                                               9
809, 812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991)).

                                  CONCLUSION

       For the above reasons, we deny Baldwin a COA, deny his IFP motion, and dismiss

this appeal.

                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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