                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 10, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


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

                 Respondent-Appellee,                     No. 07-6018
          v.                                            (W .D. of Okla.)
 K EN Y A L. N IC HO LSO N ,                       (D.C. Nos. CR-03-145-R
                                                     and CIV-06-1148-R)
                 Petitioner-A ppellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, A ND ER SO N, and TYM KOVICH, Circuit Judges. **


      Petitioner-Appellant Kenya Nicholson, a federal prisoner proceeding pro

se, seeks a certificate of appealability (COA) to appeal the district court’s denial

of his habeas corpus petition brought under 28 U.S.C. § 2255. Because Nicholson

has failed to make a “substantial showing of the denial of a constitutional right,”




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
we deny a COA and affirm the district court’s denial of his habeas petition. See

28 U.S.C. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 484 (2000).

                                   I. Background

      In 2004, Nicholson was convicted by a jury of conspiring to possess with

intent to distribute (1) 500 grams or more of a substance containing a detectable

amount of cocaine powder, (2) 50 grams or more of a substance containing a

detectable amount of cocaine base, and (3) less than 100 kilograms of marijuana

in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was also convicted of

knowingly using a telephone in furtherance of the conspiracy in violation of 21

U.S.C. § 843(b) and 18 U.S.C. § 2, possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1), and attempting to possess cocaine with intent

to distribute in violation of 21 U.S.C. § 846. Because the district court found that

Nicholson had three prior felony convictions for controlled substance offenses, he

received a life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).

      On direct appeal, Nicholson argued insufficient evidence existed to support

his conviction. This court rejected his argument and affirmed his conviction.

United States v. Nicholson, 136 F. App’x 145 (10th Cir. 2005). Nicholson then

filed his § 2255 petition in the district court, arguing (1) the court, by imposing a

life sentence, violated the statutory maximum of 21 U.S.C. § 841(b)(1)(D), which

provides penalties for convictions involving less than 50 kilograms of marijuana;

(2) the government’s evidence at trial did not prove the conspiracy charged; and

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(3) he received ineffective assistance of counsel. The district court denied his

petition and a CO A. In Nicholson’s application for a COA before this court, he

reasserts his claims and submits a renewed application to proceed in forma

pauperis.

                                    II. Analysis

      Under the Antiterrorism and Effective Death Penalty Act of 1996, we may

issue a CO A only if a petitioner “make[s] a substantial showing of the denial of a

constitutional right, a demonstration that . . . includes showing 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, 529 U.S. at 483–84 (quoting Barefoot

v. Estelle, 463 U .S. 880, 893 & n.4 (1983)). Because N icholson proceeds pro se,

we review his appeals with special leniency. Andrews v. Heaton, 483 F.3d 1070,

1076 (10th Cir. 2007). Even when viewed through this lens, however, we agree

with the district court that dismissal was appropriate.

      A. The Sentence

      As the district court correctly noted, Nicholson’s first claim that his

sentence violated § 841(b)(1)(D) is barred because it was not raised on direct

appeal and Nicholson has failed to show cause and prejudice or a miscarriage of

justice. See M assaro v. United States, 538 U.S. 500, 504 (2003); United States v.

Allen, 16 F.3d 377, 378 (10th Cir. 1994). Nicholson has made no attempt to

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explain why he was unable to raise his claim on appeal; specifically, he has not

shown that “some objective factor external to the defense impeded counsel’s

efforts to raise the claim in state court.” M cCleskey v. Zant, 499 U.S. 467, 493

(1991) (internal quotation omitted). Nor has he made a showing of actual

innocence sufficient to establish a miscarriage of justice.

      However, even if Nicholson’s claim was not procedurally barred, it would

fail because, under the circumstances of this case, his sentence was correctly

calculated. Nicholson was convicted under 21 U.S.C. § 846 of conspiracy to

possess with intent to distribute various controlled substances. Section 846

provides the same penalties for conspiracy that apply to convictions for

possession and distribution under 21 U.S.C. § 841(b)(1)(A ), which provides, “if

any person commits a violation of this subparagraph . . . after two or more prior

convictions for a felony drug offense have become final, such person shall be

sentenced to a mandatory term of life imprisonment without release.”

Nicholson’s conviction for 50 grams or more of a substance containing a

detectable amount of cocaine base falls under § 841(b)(1)(A ) and makes him

subject to a mandatory life sentence. Because the government established three

prior felony drug offenses in accordance with the procedures outlined in 21

U.S.C. § 851, the sentencing court was required to sentence Nicholson to life

imprisonment.




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      Contrary to Nicholson’s assertions, 21 U.S.C. § 841(b)(1)(D) does not

apply to him. Section 841(b)(1)(D) provides mandatory sentences for offenses

involving less than 50 kilograms of marijuana. The jury in this case, by special

interrogatories, found Nicholson specifically accountable for 500 grams or more

of a substance containing a detectable amount of cocaine powder, 50 grams or

more of a substance containing a detectable amount of cocaine base, and less than

100 kilograms of marijuana. This is not a general verdict for which the court

could not determine for w hich drug quantities the defendant was convicted. Cf.

Newman v. United States, 817 F.2d 635 (10th Cir. 1987). The court therefore

properly calculated Nicholson’s sentence under § 841(b)(1)(A).

      B. The Evidence at Trial

      Nicholson next claims the government’s evidence at trial did not prove one

conspiracy but multiple conspiracies, and that this “variance” effectively altered

the charges against him. 1 He in essence argues that the evidence against him was

insufficient to prove his involvement in the single conspiracy alleged by the



      1
         Nicholson relies on Kotteakos v. United States, 328 U.S. 750 (1946), for
the proposition that a conviction for conspiracy should be reversed if the
indictment alleges a single conspiracy but the evidence at trial proves multiple
conspiracies. In Kotteakos, the Court found that the case actually involved eight
separate conspiracies with only one of thirty-two defendants common to each. Id.
at 766. The Court reversed the convictions because the disparity between the size
of the alleged conspiracy and the actual conspiracies affected the substantial
rights of the defendants. Id. at 776. The Court, however, left open the possibility
that a more minor variance would not affect a defendant’s substantial rights. Id.
at 764–65.

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government. The district court dismissed this claim as barred because Nicholson

did not raise the specific claim regarding multiple conspiracies on direct appeal.

W e agree with the district court that the claim is barred, and Nicholson has failed

to show cause and prejudice or a miscarriage of justice.

      W e note, however, that Nicholson did raise a substantially similar claim on

direct appeal, and his conviction was affirmed. On direct appeal, Nicholson

argued the evidence against him was insufficient because his mere knowledge of

the illegal activities of others did not establish his involvement in the conspiracy.

Nicholson, 136 F. App’x at 146. W e found,

      The record is in fact replete with testimony from various witness
      [sic] that, if credited by the jury, would establish an agreement
      between [Nicholson] and coconspirator Kenny Brown to pool money
      to purchase and distribute narcotics, M r. Nicholson’s knowledge of
      the objectives of and active participation in the conspiracy, and the
      interdependence of the coconspirators in purchasing cocaine together
      and sharing a house to ‘cook up’ the crack and store proceeds from
      drug sales.

Id. at 147 (internal citations to record on appeal omitted). This evidence

establishes Nicholson’s central role in the conspiracy.

      Even if we accept Nicholson’s contention that the evidence in fact proved

m ultiple separate conspiracies rather than a single conspiracy, he has not show n

that he was prejudiced by the alleged error or that it resulted in a miscarriage of

justice. As we found on direct appeal, the evidence clearly supports Nicholson’s

central role in a drug conspiracy, including his role as a distributor. Even if the



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evidence did establish multiple conspiracies, Nicholson was a likely participant in

each of them. Thus, the evidence we found sufficient on appeal to support

Nicholson’s conviction is also sufficient now to show Nicholson suffered neither

prejudice nor a miscarriage of justice from any variance between the conduct

charged and the evidence at trial.

      C. Ineffective Assistance of Counsel

      Nicholson next asserts that his counsel was ineffective for (1) failing to

raise the preceding two issues on direct appeal; (2) failing to raise his Sixth

Amendment rights under United States v. Booker, 543 U.S. 220 (2005), on direct

appeal; and (3) failing to present the testimony of his girlfriend at trial as an alibi

witness. In order to prevail on an ineffective assistance of counsel claim,

Nicholson must show that his counsel’s conduct “fell below an objective standard

of reasonableness” and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

      Nicholson has failed to show that any of the alleged errors fell below an

objective standard of reasonable performance or that any deficient performance

prejudiced him. First, Nicholson cannot show that his counsel was deficient for

failing to raise the untenable claim that his sentence was improperly calculated or

that any failure to challenge his sentence on appeal prejudiced the outcome. And

as for Nicholson’s evidentiary argument, counsel did in fact argue the sufficiency

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of the evidence on appeal, an argument this court rejected. Nicholson, 136 F.

App’x at 147. As w e determined above, Nicholson has not shown that his slightly

different approach to the sufficiency of the evidence argument presented in this

petition would have affected the outcome of the appeal. Nicholson has thus failed

to make a substantial show ing of denial of a constitutional right on these issues.

      Second, Nicholson has not shown his trial counsel was ineffective for

failing to raise Booker issues on appeal. The Supreme Court in Booker held that

“[a]ny 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.” Booker, 543 U.S. at 244. Nicholson’s life sentence

was based on his three prior felony drug convictions. The district court’s

determination that Nicholson was eligible for a statutory life sentence based on

these prior convictions is thus not subject to Booker. Id.; see also United States

v. Small, 423 F.3d 1164, 1188 (10th Cir. 2005) (“[W ]hether the present offense

and prior offenses constitute felonies that are crimes of violence or controlled

substance offenses are questions of law unaffected by the Supreme Court’s

holding in Booker.”) Even if we assume Nicholson’s counsel erred by failing to

brief Booker issues, Nicholson has not shown that any error affected the outcome

of the proceedings because Booker does not apply. He has therefore failed to




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make a substantial showing of a denial of a constitutional right with regard to

Booker.

      Finally, as for his girlfriend’s testimony, even if we assume N icholson’s

attorney erred, Nicholson offers no insight as to what his girlfriend’s testimony

would have been, how it would have discredited the other evidence against him,

or how it would have accounted for his apparent participation in each of the drug

transactions about which evidence was presented at trial. Instead he simply

claims, “the testimony would have ‘proved’ to the jury that petitioner did not

have any participation or involvement with any of the numerous drug

transactions,” and that, had his girlfriend testified, “the ‘jury’ would have ignored

the testimony of Kenny Brown which inculpated petitioner in the alleged

conspiracy.” M otion for COA 6–7. This conclusory allegation is insufficient to

demonstrate that Nicholson was actually prejudiced by his girlfriend’s failure to

testify. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ruling

that a pro se defendant’s conclusory allegations were not sufficient to support an

ineffective assistance of counsel claim without supporting averments).

      Nicholson has therefore not made a substantial showing of the denial of a

constitutional right regarding his girlfriend’s testimony.




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                                III. Conclusion

      For the foregoing reasons we DENY Nicholson’s request for a COA, DEN Y

leave to proceed in form a pauperis, and DISM ISS the appeal.

                                                  Entered for the Court

                                                  Timothy M . Tymkovich
                                                  Circuit Judge




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