                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 27, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


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

               Respondent-Appellee,                        No. 05-5179
          v.                                       Northern District of Oklahoma
 DON ALD RAY CARTER,                          (D.C. Nos. 04-CV-794-HDC and 01-
                                                         CR-116-HDC)
               Petitioner-A ppellant.



                                        OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Donald Ray Carter, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B). Because we conclude that M r. Carter has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   I. Background

      On January 10, 2002, M r. Carter pleaded guilty to one count of possession

of a firearm after prior conviction of a felony, in violation of 18 U.S.C. § 922(g).

The district court calculated M r. Carter’s sentence pursuant to the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which carries a mandatory

minimum sentence of fifteen years, and sentenced him to 192 months

imprisonment.

      M r. Carter entered his plea on the condition that he be allowed to appeal

the district court’s denial of a motion to suppress. On appeal, this Court affirmed

the denial of the motion, United States v. Carter, 64 Fed. App’x 109 (10th Cir.

2003), and the U nited States Supreme Court subsequently denied M r. Carter’s

writ of certiorari. Carter v. United States, 540 U.S. 846 (2003).

      M r. Carter then filed a motion to vacate, set aside, or correct sentence

under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. M r. Carter

argued that both his trial and appellate counsel were ineffective for failing to

challenge the fact-finding procedure used by the district court to determine M r.

Carter was an armed career criminal. He further argued that counsel was

ineffective for failing to challenge the district court’s conclusion that two prior

Oklahoma convictions for second-degree burglary constituted “violent felonies”

for purposes of 18 U.S.C. § 924(e)(1). The district court denied the motion on the

merits, holding that because Circuit precedent allows district judges to make

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factual findings about prior convictions, M r. Carter’s counsel was not ineffective

for failing to challenge the court’s fact-finding procedure. The court also held

that M r. Carter’s second-degree burglary convictions satisfy the requirements of

the Armed Career Criminal Act and that counsel’s performance was not defective

for failing to object to that conclusion. The district court did not act on the issue

of whether to grant a COA, and we deem the district court’s failure to act a denial

of a COA. 10th Cir. R. 22.1(C). M r. Carter now petitions this Court to grant his

request for a C OA .

                                II. Claims on A ppeal

      The denial of a motion for relief under § 2255 may be appealed only if the

district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A

COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. § 2253(c)(2). In order to make such a

showing, a petitioner 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.”

Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks

omitted).

      In order to establish an ineffective assistance claim sufficient to warrant

reversal of a conviction or a sentence, a convicted defendant must show both that

counsel’s performance was so seriously deficient as to fall below an objective

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standard of reasonableness, and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The ultimate

question, according to the Supreme Court, is “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the

[proceedings] cannot be relied on as having produced a just result.” Id. at 686.

A. Judicial Fact-Finding

      M r. Carter argues that counsel had a duty to object to the district court’s

consideration of the nature of his prior convictions, as opposed to the mere

existence of the convictions, in sentencing him under the Armed Career Criminal

Act. M r. Carter relies on United States v. Greer, 359 F. Supp. 2d 1376, 1379-80

(M .D. Ga. 2005), to show that at least one federal district judge has ruled that the

Sixth Amendment requires juries, not judges, to make such determinations. The

Eleventh Circuit recently reversed the decision in Greer, finding that the district

court’s analysis contradicted both Supreme Court and Circuit precedent, both of

which establish that judges have authority to engage in factual inquiries about

prior convictions. See United States v. Greer, 440 F.3d 1267, 1273-74 (11th Cir.

2006) (concluding that the district court’s decision cannot be reconciled with

Almendarez-Torres v. United States, 523 U.S. 224 (1998), or United States v.

Shelton, 400 F.3d 1325 (11th Cir. 2005)).

      As the district court below correctly observed, this Court has recognized

that “[b]ecause determining whether a given felony constitutes a ‘violent felony’

                                         -4-
is a question of law and not fact, the Sixth Amendment does not require that

determination to be made by a jury.” United States v. M oore, 401 F.3d 1220,

1225 (10th Cir. 2005). Therefore, counsel was not ineffective for failing to

challenge the court’s fact-finding authority.

B. Full Faith and Credit Clause

      M r. Carter also argues that his second-degree burglary convictions, which

the State of Oklahoma classified as non-violent felonies, have been

unconstitutionally re-classified as violent felonies by the district court. M r.

Carter contends that Oklahoma’s final judgment in each of his burglary

convictions must be respected by the federal government as well as other states

under the Full Faith and Credit Clause of the Constitution. U.S. Const. art. IV , §

1.

      M r. Carter relies on a concurring opinion from the Eighth Circuit to support

his position that federal courts are bound by the Full Faith and Credit Clause to

adopt state judicial characterizations of violent or non-violent felonies as their

own. See United States v. Davis, 417 F.3d 909, 914 (8th Cir. 2005) (Bright, J.,

concurring) (arguing that our federal system requires federal courts to “respect

the character of state judicial proceedings, as determined by the states

themselves.”) We are not persuaded. Even if the Full Faith and Credit Clause

were binding on federal courts – which it is not, University of Tennessee v.

Elliott, 478 U.S. 788, 799 (1986) – the characterization of state court judgments

                                          -5-
to determine their consequences under the United States Sentencing Guidelines is

a federal question. It does not accord a state judgment less than full faith and

credit for a federal court to determine its effect on a subsequent federal sentence

under federal law. One of the overriding purposes of the Sentencing Guidelines

(even in their post-Booker advisory form) is to reduce unwarranted disparities in

sentencing. This is best achieved by applying a uniform national standard to the

characterization of prior convictions. M r. Carter’s counsel was not

constitutionally deficient for refraining from arguing otherwise.

                                  III. Conclusion

      Accordingly, we D EN Y Donald Ray Carter’s request for a COA and

DISM ISS this appeal. W e also DENY his request to proceed in form a pauperis.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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