                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           June 6, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                  Nos. 04-3137 & 04-3215
 v.                                                     (D. Kansas)
                                               (D.Ct. Nos. 03-CV-3379-JTM &
 LARRY JERMAIN BATTLE, JR.,                          00-CR-10059-JTM)

       Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY
                    AND DISMISSING APPEAL


Before SEYMOUR, LUCERO, and O’BRIEN, 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.

      Larry Jermaine Battle, Jr. was convicted on May 9, 2001, for interfering

with or obstructing interstate commerce by committing a robbery in violation of

the Hobbs Act and causing the death of Edward S. Lee with a firearm during the

commission of the robbery. Battle appealed his conviction to this Court,

challenging, inter alia, the district court’s jurisdiction. This Court affirmed the
conviction. United States v. Battle, 289 F.3d 661, 671 (10th Cir. 2002) (Battle I).

      After losing on appeal, Battle filed a pro se 1 28 U.S.C. § 2255 motion with

the district court. In his § 2255 motion, Battle alleged: 1) lack of jurisdiction in

the district court; 2) ineffective assistance of trial counsel; and 3) ineffective

assistance of appellate counsel. Based in part on this Court’s previous ruling in

Battle I, 289 F.3d 661, the district court denied Battle’s § 2255 motion. Battle

then moved for a certificate of appealability (COA), which the district court

denied. Battle separately appealed the denial of his § 2255 motion (04-3137) and

the denial of a COA (04-3215). 2

      Battle reasserts the same three claims he raised in the district court. Unless

we issue a COA, we lack jurisdiction to review the merits of a claim. 28 U.S.C. §

2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA can issue

only “if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El,


      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
      2
         We treat his appeals as a combined application to this Court for a COA. United
States v. Gordon, 172 F.3d 753, 753-54 (10th Cir. 1999).

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537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      As noted by the district court, Battle has raised no new arguments that call

into question this Court’s jurisdictional holding in Battle I. Consequently, his

jurisdictional claim remains without merit.

      Battle also raises claims of ineffective assistance of counsel at both the trial

and appellate levels. He contends his trial counsel failed to adequately

investigate the PSIR criminal history calculation prior to sentencing. As a result,

he argues his sentence was inappropriately based on a criminal history category of

II rather than I. He also alleges his appellate counsel was ineffective for failing

to bring this issue to the attention of the appellate court, as well as failing to

challenge the district court’s discretion in imposing a consecutive rather than a

concurrent sentence.

      To prevail on an ineffective assistance claim, Battle must establish that his

counsel’s deficient performance prejudiced his defense. Romano v. Gibson, 239

F.3d 1156, 1180 (10th Cir. 2001). To do this, he must demonstrate that but for

his counsel’s objectively deficient performance, there is a reasonable probability

the result would have been different. Id.; Hickman v. Spears, 160 F.3d 1269,

1273 (10th Cir. 1998). We “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland v.

Washington, 466 U.S. 668, 689 (1984). Moreover, “strategic choices made after


                                           -3-
thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Id. at 690. “When considering a claim of ineffective

assistance of appellate counsel for failure to raise an issue, we look to the merits

of the omitted issue.” Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999).

Appellate counsel is not required to appeal every nonfrivolous issue, Jackson v.

Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998); Banks v. Reynolds, 54 F.3d 1508,

1515 (10th Cir. 1995), let alone issues which appear to be without merit.

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

       Although Battle protests the inaccuracy of the presentence investigation

report, there is no evidence in the record regarding the nature of the inaccuracy

effective counsel allegedly would challenge. Without more, it is impossible to

assess the merits of Battle’s claim of inaccuracy; whether his trial counsel’s

conduct fell below an objective standard of reasonableness in failing to object to

the issue at trial; or whether any such mistake actually prejudiced Battle. See

Neill v. Gibson, 278 F.3d 1044, 1055 (10th Cir. 2001) (noting the impossibility of

establishing whether trial counsel’s conduct was reasonable strategy based on an

insufficient record). In light of the presumptive competency of counsel,

conclusory allegations are not enough. Dever v. Kansas State Penitentiary, 36

F.3d 1531, 1537 (10th Cir. 1994) (“The convicted defendant making [an

ineffective assistance] claim must identify the acts or omissions alleged not to


                                          -4-
have been the result of reasonable professional judgment.”) We therefore find no

showing of the denial of a constitutional right at either the trial or appellate level

based on the use of a level II criminal history category.

       Battle also claims he was prejudiced by his appellate counsel’s failure to

challenge the absence of the district court’s reasons for imposing consecutive

sentences under § 3584, as required by United States v. Rose, 185 F.3d 1108 (10th

Cir. 1999). 3 We held in Rose that if a district court exercises its discretion under

§ 3584 to impose consecutive sentences it must state its reasons for doing so. Id.

at 1112-13. Here, the district court did not state its reasons for imposing Battle’s

consecutive sentences. Battle I, 289 F.3d at 665. “This omission would, in

certain cases, compel us to vacate the sentences and remand the case.” Id.

       However, Battle pointedly ignores that we addressed this issue in Battle 1.

There, we stated, “[w]e are not . . . compelled to vacate the district court’s

sentencing decision if it was mandated by §§ 924(c)(1) and (j)(1) to impose

consecutive sentences.” Id. We then expressly held

       § 924(c) unambiguously mandates the imposition of a consecutive
       sentence “in addition to” the punishment ordered for the use of a firearm
       during the commission of a crime of violence where the evidence
       demonstrates the existence of the aggravating sentencing factors set
       forth in § 924(j).


       3
        This Court noted in Battle I that Battle “failed to discuss the discretionary
authority of a court to impose consecutive sentences pursuant to § 3584 and the
requirement under Rose that the court state its reasons for doing so.” 289 F.3d at 665.

                                            -5-
Id. at 669. Consequently, we affirmed the consecutive sentences.

      Thus, even if Battle’s appellate counsel had raised Rose, consecutive

sentences would still have been mandated by § 924(c) and (j). As such, any error

on the part of Battle’s appellate counsel was not prejudicial.

      Based on the above, we DENY Battle’s request for a COA on the § 2255

issue and DISMISS the appeal.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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