                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            March 29, 2006
                                 TENTH CIRCUIT                           Elisabeth A. Shumaker
                            __________________________                       Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 04-5172
                                                       (N. D. Oklahoma)
 CHRISTOPHER MOORE, JR.,                         (D.Ct. Nos. CV-01-278-H and
                                                         98-CR-78-H)
          Defendant - Appellant.
                         ____________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Christopher Moore, a federal prisoner appearing pro se, 1 seeks a certificate

of appealability (COA) from the district court's denial of his 28 U.S.C. § 2255

motion. Before ruling on Moore’s application, however, we must address a


      1
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
jurisdictional issue dealing with the timeliness of Moore’s initiation of his appeal.

Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002) (“[T]his

court must always satisfy itself of jurisdiction before addressing the merits of a

claim . . . .”). Although we conclude Moore’s appeal was timely filed, we deny

his request for a COA.

                                       Background

       Moore was convicted in the district court of bank robbery, use of a firearm

to commit a violent crime, and armed carjacking. He unsuccessfully challenged

his convictions on direct appeal. See United States v. Moore, 198 F.3d 793 (10th

Cir. 1999), cert. denied 529 U.S. 1076 (2000). He then petitioned the district

court for relief pursuant to 28 U.S.C. § 2255. Moore raised several claims: (1)

the district court lacked jurisdiction due to intervening decisions by the United

States Supreme Court; (2) his sentence was unconstitutionally enhanced; and (3)

he was denied effective assistance of counsel. On May 14, 2004, the district

court issued its order and judgment denying relief. The order and judgment were

entered on May 17, 2004, starting the time period for the filing of the notice of

appeal. Jenkins v. Burtzloff, 69 F.3d 460, 461 (10th Cir. 1995). Pursuant to Rule

4(a)(1)(B) of the Federal Rules of Appellate Procedure, 2 Moore was required to


       2
        “When the United States or its officer or agency is a party, the notice of appeal
may be filed by any party within 60 days after the judgment or order appealed from is
entered.” FED. R. APP. P. 4(a)(1)(B).

                                            -2-
file a notice of appeal by July 16, 2004. However, Moore’s application for COA

was not filed in the district court until July 19, 2004.

       On October 21, 2004, the district court denied Moore’s application. The

court also found Moore’s application to be the “functional equivalent of a notice

of appeal,” and ordered it processed as such. (R. Doc. 44 at 1, 3.) See Smith v.

Barry, 502 U.S. 244, 248-49 (1992) (“If a document filed within the time

specified by Rule 4 [of the Federal Rules of Appellate Procedure] gives the notice

required by Rule 3, it is effective as a notice of appeal.”).

                                         Discussion

       1.     Timeliness of Appeal

       The timely filing of a notice of appeal is “mandatory and jurisdictional.”

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). Since Moore’s

application was not filed with the district court until July 19, 2004, three days

after the end of the sixty-day filing period, the only way it could be deemed

timely was if he was entitled to the benefit of the prison mailbox rule. Under the

prison mailbox rule, an inmate’s legal pleading is deemed filed at the time he

delivers it to the prison authorities for forwarding to the court. F ED . R. A PP . P.

4(c)(1). 3


       3
        “If an inmate confined in an institution files a notice of appeal in either a civil or
a criminal case, the notice is timely if it is deposited in the institution's internal mail
system on or before the last day for filing. If an institution has a system designed for

                                              -3-
           On December 2, 2004, this Court ordered Moore to show cause why this

  case should not be summarily dismissed, due to the apparent untimely filing of the

  notice of appeal. In response, Moore filed a declaration that he mailed his

  application for COA “[o]n July 14, 2004 . . . from U.S. Penitentiary,

  Leavenworth, Kansas, via the institution’s legal mail box . . . .” (Response to

  Show Cause Order at 3), attaching a photocopy of a certified mail receipt as

  proof. This constituted sufficient compliance with Rule 4(c)(1) of the Federal

  Rules of Appellate Procedure. See United States v. Gray, 182 F.3d 762, 766 &

  n.7 (10th Cir. 1999). Moore’s application thus was timely filed, and we have

  jurisdiction.

      2.      Certificate of Appealability

      In his original 28 U.S.C. § 2255 motion, Moore raised several issues: (1) the

district court lacked jurisdiction because intervening decisions by the United States

Supreme Court in United States v. Morrison, 529 U.S. 598 (2000), and Jones v.

United States, 529 U.S. 848 (2000), rendered unconstitutional the carjacking statute

under which he was convicted; (2) his sentence was unconstitutionally enhanced

based on facts not presented to the jury; and (3) he was denied his constitutional




  legal mail, the inmate must use that system to receive the benefit of this rule. Timely
  filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a
  notarized statement, either of which must set forth the date of deposit and state that
  first-class postage has been prepaid.” FED. R. APP. P. 4(c)(1).

                                             -4-
right to effective assistance of counsel due to counsel’s failure to object both to the

sentencing enhancements and to a jury instruction which allegedly omitted a key

element of the offense of carjacking under 18 U.S.C. § 2119. 4 The district court

denied Moore’s petition in its entirety, considering Moore’s challenge to the federal

carjacking statute to be procedurally barred since he had not raised it on direct

appeal. The court further rejected Moore’s attempts to overcome the procedural bar,

finding Moore’s reliance on Morrison and Jones misplaced. Since neither case

affected the constitutionality of the carjacking statute, Moore neither established

cause under the intervening change in law exception to the bar, nor demonstrated

actual prejudice. The court also found Moore’s challenge to his sentence to be both

procedurally barred, since he did not raise it on direct appeal, and incorrect as a

matter of law, since he was not sentenced beyond the statutory maximum. Finally,

the court held Moore’s counsel was not ineffective, since there was no legal basis to

object either to the sentence or to the disputed jury instruction.

      In his subsequent application to the district court for a COA, Moore


         4
             18 U.S.C. § 2119 provides in pertinent part:

         Whoever, with the intent to cause death or serious bodily harm takes a
         motor vehicle that has been transported, shipped, or received in interstate or
         foreign commerce from the person or presence of another by force and
         violence or by intimidation, or attempts to do so, shall—

                  (1) be fined under this title or imprisoned not more than 15 years, or
                  both . . . .

                                               -5-
contended the court erred in denying his § 2255 motion without a hearing; the court

erred in denying his claims challenging the effectiveness of his counsel; and the

evidence relating to the carjacking was insufficient to prove a nexus to interstate

commerce. Moore abandoned the challenge to his sentence. The district court

summarily denied the application, since Moore had not “made a substantial showing

of the denial of a constitutional right.” (R. Doc. 44 at 2.)

      Moore altered his contentions slightly in his COA application to this Court.

He again challenges the effectiveness of his counsel, and argues the evidence

presented was insufficient to establish a nexus to interstate commerce under 18

U.S.C. § 2119. Relying on Morrison, Moore argues that in order to satisfy the

Commerce Clause, evidence at trial must prove each vehicle was moving in

interstate commerce contemporaneously with its theft in order to be convicted under

the federal carjacking statute.

      A COA is a jurisdictional pre-requisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). We will issue a COA only if a petitioner makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). “Section 2255 motions are not available to test the legality of matters

which should have been raised on direct appeal.” United States v. Warner, 23 F.3d

287, 291 (10th Cir. 1994) (citation omitted). When a petitioner “fails to raise an

issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding,


                                           -6-
unless he establishes either cause excusing the procedural default and prejudice

resulting from the error, or a fundamental miscarriage of justice if the claim is not

considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (citation

omitted). “Where a district court has rejected the constitutional claims on the merits

. . . [t]he petitioner must demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). When the district court denies the petition on

procedural grounds, the petitioner must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id.

      In reviewing for a COA, we are forbidden from giving full consideration to

the factual or legal bases urged in support of the claims. To the contrary, we

preview the claims and make a general assessment of their merit. Miller-El, 537

U.S. at 336. Although a petitioner, in requesting a COA, is not required to prove

the merits of the case, the threshold of proof is higher than good faith or lack of

frivolity. Id. at 338.

      Moore offers two causes to avoid the bar resulting from his failure to raise his

arguments on direct appeal: ineffective assistance of counsel and an intervening

change of law. The district court’s conclusions are not reasonably debatable


                                           -7-
considering the record and Moore’s filings.

             A.     Ineffective Assistance of Counsel

      Moore raises two arguments with respect to his ineffective assistance of

counsel claims. First, he contends the district court did not consider his claims.

Second, he contends the procedural bar rule is inapplicable because he was

represented by the same counsel at trial and on direct appeal, which hindered his

ability to pursue appropriate claims on appeal.

      “A defendant may establish cause for his procedural default by showing that

he received ineffective assistance of counsel in violation of the Sixth Amendment.”

United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). “To

establish a claim for ineffective assistance of counsel, a defendant must show that

(1) his counsel's performance was constitutionally deficient, and (2) counsel's

deficient performance was prejudicial.” Id. 45 F.3d at 392 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). We “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Counsel is not ineffective for failing to advance a

futile argument. See Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999).

      Moore’s contentions are without merit. The district court correctly applied

Strickland and Cook in determining Moore’s attorney “[did] not act unreasonably by

failing to raise . . . meritless issue[s].” (R. Doc. 42 at 19.) The district court held


                                            -8-
there was no legal foundation upon which to challenge Moore’s sentence, nor was

the carjacking instruction improper under the statute. The district court’s

conclusions are not reasonably debatable. See Miller-El, 537 U.S. at 327.

      The district court declined to consider Moore’s two attempts to raise new

issues relating to his counsel’s performance. The first attempt was in Moore’s reply

brief, when he alleged counsel failed to introduce evidence that would have

undermined the government’s case. The district court did not consider this issue

because the government did not have an opportunity to respond. Next, in his

application for COA, Moore argued his appellate counsel—who had also served as

trial counsel—had a conflict of interest. Again, the district court declined to

address this issue because it had not been raised in the § 2255 motion. The district

court’s treatment of issues raised for the first time in a reply brief in a § 2255 case

is in accord with this Court’s practice. See United States v. Alvarez, 137 F.3d 1249,

1251 (10th Cir. 1998).

             B.     Intervening Change of Law

      An intervening change in law can serve as a basis to avoid a procedural

default in a § 2255 motion where the defendant failed to raise the issue on direct

appeal. United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). Moore

argues the Supreme Court’s decision in Morrison constitutes an intervening change

in the law that justifies an exception to his procedural default, and 18 U.S.C. § 2119


                                            -9-
violates the Commerce Clause.

      In Morrison, the Court held portions of the Violence Against Women Act

exceeded Congress’ Commerce Clause power. 529 U.S. at 617. The Court noted

Congress may not “regulate noneconomic violent criminal conduct based solely on

that conduct’s aggregate effect on interstate commerce.” Id. Prior to Morrison, but

after United States v. Lopez, 514 U.S. 549 (1995), 5 we upheld the constitutionality

of § 2119 against a similar Commerce Clause challenge. United States v. Romero,

122 F.3d 1334, 1339 (10th Cir. 1997). Romero’s reasoning is persuasive in this case

as well, and we note nothing in Morrison which convinces us to alter our decision.

We reject Moore’s intervening law challenge to the federal carjacking statute based

on Morrison.

                                        Conclusion

      For essentially the same reasons set forth by the district court, we conclude

Moore has not “made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

      We DENY a COA and DISMISS the appeal.



         5
           In Lopez the United States Supreme Court invalidated the Gun-Free School
  Zones Act on Commerce Clause grounds. The Court “identified three broad categories of
  activity that Congress may regulate under its commerce power”: (1) “the use of the
  channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or
  persons or things in interstate commerce”; or (3) “activities having a substantial relation
  to interstate commerce.” 514 U.S. at 558-59.

                                            -10-
      Moore filed with this court a request to proceed in forma pauperis (ifp) for

this appeal. He was granted permission to proceed ifp in the district court. Since

the district court did not certify in writing that his appeal was not taken in good

faith, 28 U.S.C. § 1915(a)(3), his ifp status continues in this Court without further

order. See Fed. R. App. P. 24(a)(3). Accordingly, his ifp request is denied as moot.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                           -11-
