                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 17 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 04-3369
                                                           (D. Kan.)
 DEMETRIUS L. JENKINS,                         (D.Ct. Nos. 00-CV-3303-JTM and
                                                      97-CR-10047-JTM)
          Defendant-Appellant.


                                      ORDER


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      Appellant Demetrius L. Jenkins, a federal inmate appearing pro se, seeks a

certificate of appealability to appeal the district court’s order dismissing his

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

We deny Mr. Jenkins's request for a certificate of appealability and dismiss his

appeal.



      On direct appeal, this court affirmed Mr. Jenkins's convictions for

possession with intent to distribute cocaine base and possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1). See United States v.
Jenkins, 175 F.3d 1208 (10th Cir. 1999). Because the facts of Mr. Jenkins's

convictions and sentence are more fully outlined in our previous decision, and the

parties are familiar with the facts surrounding the instant § 2255 petition, we need

not restate them here.



      On appeal, Mr. Jenkins reasserts four of the same issues he raised before

the district court; namely: 1) his sentence is constitutionally defective under

Apprendi v. New Jersey, 530 U.S. 466 (2000); 2) his trial attorney acted

ineffectively by failing to object to the determination of drug quantity; 3) his

attorney acted ineffectively by improperly calculating his criminal history; and 4)

his attorney improperly used the transcript of a non-testifying informant to

attempt to prove a credibility issue pertaining to an officer. For the first time on

appeal, he also asserts his appellate attorney acted ineffectively by failing to

appeal the issue of drug quantity.



      With respect to the issues raised before the district court and now appealed,

the district court dismissed Mr. Jenkins's petition and denied him a certificate of

appealability on the following grounds: 1) the rule in Apprendi is not retroactive,

and even if it was, the indictment and evidence on which the jury convicted him

specifically set out drug amounts, so that his trial counsel was not ineffective for


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failing to object to the drug quantity used for sentencing; and 2) his counsel also

did not act ineffectively given Mr. Jenkins’s criminal history was correctly

calculated and his counsel’s “examination of the witness in question was a

tactical decision appropriate to the issues of the case.” For purposes of this

appeal, we examine these issues as well as briefly address the newly-raised issue

on appeal.



      An appeal may not be taken from a final order in a § 2255 proceeding

without a certificate of appealability. 28 U.S.C. § 2253(c)(1). In order for a

movant to be entitled to a certificate of appealability he must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where

a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,

338 (2003) (internal quotation marks, alteration and citation omitted). This is a

threshold inquiry we apply to determine whether we may entertain an appeal. See

id. at 336. Finally, we construe pro se pleadings liberally, applying a less

stringent standard than formal pleadings drafted by lawyers. See Haines v.

Kerner, 404 U.S. 519, 520 (1972).


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      Applying these principles, we have conducted a thorough review of the

pleadings, the record on appeal, and the district court’s decision. For purposes of

judicial economy we decline to duplicate the district court’s analysis on the issues

raised before it, other than to conclude Mr. Jenkins clearly fails to make a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c).



      With respect to Mr. Jenkins's newly-raised issue on the ineffectiveness of

his appellate counsel for not appealing the drug quantity issue, we need not

exercise our jurisdiction on an issue never raised before the district court. See

United States v. Cooper, 375 F.3d 1041, 1051 (10th Cir.), cert. denied, 125 S. Ct.

634 (2004). We note, however, this ineffective assistance of appellate counsel

claim suffers from similar deficiencies articulated by the district court with

respect to the ineffectiveness of his trial attorney in not filing an objection on the

drug quantity issue. First, the Supreme Court decided Apprendi, and Jones v.

United States, 526 U.S. 227 (1999), which foreshadowed Apprendi, after Mr.

Jenkins’s 1998 conviction and subsequent direct appeal, so we cannot say his

appellate attorney acted ineffectively for failing to raise an Apprendi-type claim

on the issue of drug quantity. See United States v. Gonzalez-Lerma, 71 F.3d

1537, 1541-43 (10th Cir. 1995) (holding counsel's failure to foresee future legal


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developments does not indicate constitutionally-deficient performance). Second,

we must point out that Apprendi is not retroactive. See United States v. Mora,

293 F.3d 1213, 1219 (10th Cir. 2002). Furthermore, the drug quantities on which

Mr. Jenkins was indicted were proven to a jury and applied in determining his

sentence. 1 Under these circumstances, we conclude Mr. Jenkins fails to make a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c).



      Thus, for the reasons articulated herein, and for substantially the same

reasons set forth in the district court’s orders dated February 9, 2004; March 19,

2004; and July 22, 2004, we DENY Mr. Jenkins's request for a certificate of




      1
         The indictment against Mr. Jenkins specifically set out the drug
quantities, including “(200) grams of cocaine base (crack cocaine).” The
pleadings in the record reveal a government expert corrected the specific drug
quantities from 200 grams of cocaine base to 159-160 grams of cocaine and 85-86
grams of cocaine base. The government then amended the indictment, and the
jury, based on the testimony of the same expert, found Mr. Jenkins guilty.
Thereafter, the presentencing report reflected the amended drug quantities the
expert testified to and upon which the jury found Mr. Jenkins guilty; which are
the amounts the trial judge used to sentence Mr. Jenkins. On review of Mr.
Jenkins's appellate pleadings, and under the circumstances presented, he has not
shown his counsel was deficient, or even if he was, that his deficient performance
prejudiced him to the extent that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984).

                                        -5-
appealability, DENY his request to proceed in forma pauperis, and DISMISS his

appeal.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




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