                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 5, 2007
                    UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



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

       Plaintiff-Appellee,
                                                        No. 06-3362
 v.
                                             (D.C. Nos. 05-CV-3444-W EB and
                                                    03-CR-10040-W EB)
 GA RY M ULLA NE,
                                                    (District of K ansas)
       Defendant-Appellant.




          OR DER DENYING CERTIFICATE O F APPEALABILITY


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


      On September 23, 2003, Gary M ullane pled guilty to possession with intent

to distribute marijuana and was sentenced to 100 months’ imprisonment by the

United States District Court for the District of Kansas. See 21 U.S.C. § 841(a),

(b)(1)(B). Following the denial of his direct appeal, M r. M ullane, proceeding pro

se, moved the district court to set aside his sentence under 28 U.S.C. § 2255,

alleging ineffective assistance of counsel. On September 13, 2006, the district

court issued a detailed memorandum and order granting M r. M ullane’s m otion in

part and denying it in part.
      On October 2, 2006, prior to the district court’s resentencing on the sole

meritorious issue presented in M r. M ullane’s Section 2255 motion, 1 M r. M ullane

filed a notice of appeal seeking review of that portion of the district court’s

memorandum and order denying his Section 2255 motion. In response, the

district court issued an order denying M r. M ullane a certificate of appealability

(“COA”) on those claims. See Order, No. 03-10040-02-W EB (D. Kan. Oct. 16,

2006). On November 3, 2006, M r. M ullane filed a letter with this Court stating

that he was proceeding pro se and was “confused on what . . . to do next”; he also

requested appointment of an appellate attorney to “see if the issues [he] is

appealing have any validity.” Subsequently, M r. M ullane supplemented his

filings in this Court with an application for a COA, seeking to appeal those

ineffective assistance of counsel claims denied by the district court.

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      Our first task in this case is to assess whether we have jurisdiction to hear

it. Section 2253(c)(1) requires that an appeal of a Section 2255 proceeding be

taken from a final order. Court rules provide that a notice of appeal must be filed

with the district clerk within 30 days after entry of the final amended judgment

and that such notice identify the party taking the appeal, the judgment or order

appealed, and the name of the court to which the appeal is taken. Fed. R. App. P.



      1
        The district court subsequently amended the judgment and reduced M r.
M ullane’s sentence to 92 months on October 26, 2006.

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3; see also Fed. R. App. P. 4(a)(1). Here, M r. M ullane filed his “notice of

appeal” with the district court prematurely; that is, after his sentence had been

vacated and prior to the district court’s resentencing and entry of the final

amended judgment. See 28 U.S.C. § 2253(c)(1); see also Andrews v. United

States, 373 U.S. 334, 340 (1963) (until a defendant is resentenced pursuant to an

order granting a Section 2255 motion, there is no final disposition of the Section

2255 proceeding). However, his November 3, 2006 letter requesting appointment

of counsel to assist him in his appeal was filed within 30 days after entry of the

final amended judgment and meets the requirements of Rule 3 with the exception

that it w as filed in this Court and not with the district court.

       W here, as here, the defendant is proceeding pro se, the Supreme Court has

instructed that “[c]ourts will liberally construe” the notice requirements and “a

court may nonetheless find that the litigant” complied with the rule although the

“papers are technically at variance with the letter of” the rule. Sm ith v. Barry,

502 U.S. 244, 246-49 (1992) (quotation omitted). W e find that M r. M ullane’s

timely letter requesting appointment of appellate counsel was the “functional

equivalent” of a notice of appeal. See id. at 246-49 (the court held that an

informal brief timely filed with the court of appeals that otherwise met the notice

requirements constituted a notice of appeal); see also Fleming v. Evans, No. 06-

6110, __ F.3d __, 2007 W L 970163, at *2 (10th Cir. April 3, 2007) (holding that

although the pro se litigant filed a premature and thus untimely notice of appeal,

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his timely combined motion – requesting leave to proceed on appeal without

prepayment of costs and a CO A – was the “functional equivalent” of a notice of

appeal); Fed. R. App. P. 4(d) (providing that a notice of appeal mistakenly filed

in the court of appeals is considered filed in the district court on the date the clerk

of the court of appeals notices it was received). 2

                                      t    t    t

      Turning from our jurisdiction to the substance of M r. M ullane’s COA

application, Congress has instructed that we may review a district court’s denial

of a Section 2255 motion only if a judge first issues a COA; in turn, such a

certificate may be properly issued only if the defendant has “made a substantial

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

our rules, the defendant must present the COA issue, in the first instance, to the

district court; in this case, the district court issued an order denying M r. M ullane

a COA on the claims appealed to us. See Order, No. 03-10040-02-W EB (D. Kan.

Oct. 16, 2006); see also 10th Cir. R. 22.1(C). Based on our independent review

of the record in this case, including M r. M ullane’s Section 2255 motion papers,

we agree that he has not met the threshold set by Congress for the issuance of a



      2
         Because we find that, by his November 3, 2006 letter, M r. M ullane
effectively submitted a timely notice of appeal, we find it unnecessary to
determine w hether Rule 4(a)(2) of the Federal Rules of A ppellate Procedure
would have rendered timely his premature, October 2, 2006, notice of appeal. In
accordance with Rule 4(d), the clerk of this Court is directed to send the
November 3, 2006 notice of appeal to the district court for filing.

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COA and do so for substantially the same reasons outlined in the district court’s

September 13, 2006 memorandum and order.

      M ore specifically, in order to succeed on an ineffective assistance of

counsel claim, M r. M ullane must show that his attorney’s advocacy fell below an

“objective standard of reasonableness,” and that but for counsel’s deficient

representation, the result in his case would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). To prove counsel’s

representation was not objectively reasonable, “‘the defendant [has] the burden of

showing that counsel’s action or inaction was not based on a valid strategic

choice.’” Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002) (quoting

W ayne R. LaFave, Criminal Procedure § 11.10(c) at 715 (2d ed. 1999)).

      In this case, M r. M ullane first contends that his counsel’s advocacy at

sentencing before the district court amounted to ineffective assistance. But a

review of the record shows that M r. M ullane’s counsel implored the district court

to grant M r. M ullane a sentence reduction under USSG § 3B1.2 because, he

argued, M r. M ullane’s role in the offense “was that of a mule” – that is, he only

drove a truck containing drugs, he did not exercise control over the drugs, and he

did not know where the drugs originated or to whom they were to be delivered.

See M emorandum and Order, No. 03-10040-02-W EB (D. Kan. Sept. 13, 2006)

(the “M emorandum and Order”) at 9. Counsel also made a colorable analogy to

M r. M ullane’s role as that of “an unskilled deliveryman at a construction site.”

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See id. W hile ultimately unsuccessful in his attempt to persuade the district court

to exercise its discretion to impose a lower sentence, we see nothing in any of this

to suggest that counsel did anything other than a credible job.

      M r. M ullane also argues that counsel was ineffective by failing to raise this

same mitigation argument (which he contends was ineffectively presented in the

trial court) on direct appeal. But counsel need not raise on appeal every

nonfrivolous claim; rather, competent counsel do (and should) “select from

among them in order to maximize the likelihood of success on appeal.” Cargle v.

M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Furthermore, “if the omitted issue

has merit but is not so compelling, the case for deficient performance is more

complicated, requiring an assessment of the issue relative to the rest of the

appeal, and deferential consideration must be given to any professional judgment

involved in its omission.” Id. On direct appeal in this case, counsel focused his

efforts on the district court’s denial of defendant’s motion to suppress. See

United States v. M ullane, 123 Fed. Appx. 877 (10th Cir. Feb. 3, 2005) (unpub.).

Although defendant’s mitigation theory, premised on his being nothing more than

a drug mule, is not foreclosed by our decisions, neither was it an obviously

compelling basis for appeal. This Court is constrained to review a district court’s

factual findings about a defendant’s role under the clear error standard. See

United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). In sentencing

M r. M ullane, the district court in this case specifically found that “[t]he facts of

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the offense suggest the defendant likely had ample knowledge of the plan and that

he played an essential role, together with his co-defendant, in the distribution of

the drugs,” M emorandum and Order at 10-11; while perhaps not an

insurmountable task, given our narrow standard of review, it would have been

quite a row to hoe for counsel to show a specific finding along these lines to be

clearly erroneous. Accordingly, we cannot say counsel’s decision not to pursue

this issue to be anything other than a good faith, and reasonable, tactical

judgment.

      Lastly, we find meritless M r. M ullane’s separate argument that a jury must

find facts relating to a prior conviction when they are used to enhance a sentence. 3

This argument is foreclosed by our (repeated) holdings that “the Constitution does

not require the government to charge or prove to a jury either the existence of

prior convictions or certain facts related to those convictions.” United States v.

Corchado, 427 F.3d 815, 820 (10th Cir. 2005); see also United States v. Booker,



      3
         M r. M ullane received two additional criminal history points under USSG
§ 4A1.1(d) (2003), for being on probation at the time he committed the instant
offense. In M r. M ullane’s A pplication for Certificate of Appealability, he asserts
that his presentence investigation report (“PSI”) states “it has no records of” the
underlying probationary offense and because of this, the points w ere improperly
attributed to him. W e find M r. M ullane’s assertion without merit; the PSI clearly
explains that a warrant “remains active and outstanding” relating to a burglary he
committed in Florida in 1994 and that M r. M ullane was on probation “at the time
he committed the instant offense.” PSI ¶ 56. Because w e find M r. M ullane’s
argument unsupported by the record and, in the absence of any denial of the
occurrence of the burglary offense itself, we are constrained to conclude that the
criminal history points were properly added.

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543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” (emphasis added)).

                                    t    t     t

      For the foregoing reasons, we deny M r. M ullane’s application for a COA

and dismiss his appeal.

                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge




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