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

                             FOR THE TENTH CIRCUIT                       September 14, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 17-5020
v.                                              (D.C. Nos. 4:14-CV-00609-JHP-PJC and
                                                        4:13-CR-00068-JHP-6)
JUSTIN JACKSON,                                               (N.D. Okla.)

      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

       The United States District Court for the Northern District of Oklahoma denied the

motion for relief under 28 U.S.C. § 2255 filed by Defendant Justin Jackson. Defendant

now seeks from this court a certificate of appealability (COA) so that he can appeal the

denial. See 28 U.S.C. § 2253(c)(1)(B) (requiring certificate of appealability to appeal

from “the final order in a proceeding under section 2255”). We deny the request for a

COA and dismiss the appeal.

       In 2013, Defendant pleaded guilty to one count of an indictment charging him

with conspiring to possess with intent to distribute more than 500 grams of

methamphetamine. In the plea agreement he waived the right to raise collateral attacks

on his conviction and sentence other than in claims of ineffective assistance of counsel

challenging the validity of the plea or the waiver.
       Defendant then filed a § 2255 motion raising several challenges to his conviction

and sentence. All were rejected by the district court, which also declined to issue a COA.

Defendant seeks a COA in this court only with respect to his ineffective-assistance-of-

counsel claim, expressly waiving all other grounds.

       As we understand his claim, he is asserting that his attorney improperly counseled

him to plead guilty to an offense that was not charged in the indictment against him. He

points to the indictment’s only mention of his conduct in its description of the

conspiracy’s means and methods—an allegation that he acted as a courier of

methamphetamine and drug proceeds between coconspirators Glen Jackson, Jr. and

Leonel Mares. He argues that his criminal liability should have been limited to these acts

and his plea to a larger conspiracy should therefore be set aside.

       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).

       To demonstrate ineffective assistance of counsel, Defendant must demonstrate

both that counsel’s performance was deficient and that he was prejudiced by counsel’s

deficiency. See Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016). “An

insufficient showing on either element is fatal to an ineffective-assistance claim,

rendering consideration of the other element unnecessary.” Id.


                                             2
       Here, there was no deficiency in counsel’s representation. Defendant did not

plead to an uncharged crime. The charge was conspiring to possess with intent to

distribute 500 grams or more of methamphetamine. The indictment’s description of

certain overt acts does not limit Defendant’s offense to those acts. See United States v.

Holland, 956 F.2d 990, 993 (10th Cir. 1992) (“It is the agreement, separate and apart

from the overt act itself, which comprises the crime [of conspiracy].”). Defense

counsel’s alleged error was no error, and it is axiomatic that correctly stating the law is

not ineffective assistance of counsel. See United States v. Elias, 937 F.2d 1514, 1520

(10th Cir. 1991) (“Because a section 922 offense does not require specific intent, Elias

cannot complain his attorney’s failure to advise him about [specific intent] constitutes

incompetence.”). No reasonable jurist would debate that denial of Defendant’s

ineffective-assistance-of-counsel claim was correct.

       We DENY a COA and DISMISS the appeal.

                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




                                              3
