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

                           FOR THE TENTH CIRCUIT                        March 14, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 13-3280
                                                 (D.C. Nos. 2:12-CV-02180-CM &
DEMETRIUS R. HARGROVE,                                2:03-CR-20192-CM-1)
                                                             (D. Kan.)
             Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.


      Demetrius R. Hargrove, a federal prisoner appearing pro se, seeks to appeal

from the district court’s order denying his motion attacking his sentence under

28 U.S.C. § 2255. We deny his application for a certificate of appealability (COA)

and dismiss the appeal.


*
       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. This order is not binding precedent, except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.
                                    I. Background

      Hargrove was indicted in December 2003 for five federal crimes arising from

three murders in February and July 1998 and an attempted murder in January 1999.

See United States v. Hargrove, 382 F. App’x 765, 768 (10th Cir. 2010). He pleaded

not guilty to all charges and went to trial. Count 4 (attempted murder) was dismissed

at the close of the government’s case. See id. at 773. After twenty-one days of trial

and four days of jury deliberation, Hargrove was convicted of the remaining four

counts: two counts of murder by use of a firearm during a drug trafficking crime in

violation of 18 U.S.C. §§ 924(j)(1) and 1111 (counts 1 and 2); one count of murder of

a federal witness in violation of 18 U.S.C. §§ 1111 and 1512(a)(1)(A) (count 3);

and one count of conspiracy to murder and attempt to murder a federal witness

in violation of 18 U.S.C. §§ 371 and 1512(a)(1)(A) (count 5). See Hargrove,

382 F. App’x at 767, 771, 773. Although the government sought the death penalty,

the jury rejected it, and “the court sentenced Hargrove to life imprisonment without

the possibility of release on Counts 1, 2 and 3, and 60 months imprisonment on the

remaining count [Count 5], all to run concurrent with each other.” Id. at 773. We

affirmed the convictions on appeal. See id. at 768, 786.

      Hargrove filed his § 2255 motion in the district court pro se, asserting seven

claims. His first six arguments related to the alleged ineffective assistance of his two

trial attorneys. In addition, he requested an evidentiary hearing on his first claim

asserting that trial counsel were ineffective in failing to timely move to dismiss


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counts 1 and 2 of the indictment as barred by the statute of limitations. His seventh

claim sought an evidentiary hearing based on the alleged cumulative errors by trial

counsel. The district court concluded that Hargrove had failed to show that trial

counsel’s actions were objectively unreasonable or, even if they were, that he was

prejudiced by them because he had failed to show that the results of the proceeding

might have been different. The court denied the § 2255 motion without holding an

evidentiary hearing and refused to issue a COA. Hargrove filed this appeal and a

combined opening brief and application for a COA.

                                     II. Discussion

      “A federal prisoner may not appeal from the denial of a § 2255 petition

without first obtaining a COA.” United States v. Bedford, 628 F.3d 1232, 1234

(10th Cir. 2010) (citing 28 U.S.C. § 2253(c)(1)(B)). We have held that “[a] COA

will issue ‘only if the applicant has made a substantial showing of the denial of a

constitutional right.’” Id. (quoting § 2253(c)(2)). Because the district court denied

Hargrove’s § 2255 motion on the merits, he “satisfies this burden by ‘demonstrat[ing]

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

claims debatable or wrong.’” Id. (alteration in original) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). Although we construe pro se COA applications liberally,

Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), Hargrove’s pro se status does not

relieve him of his burden to make a substantial showing of a constitutional violation.




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       An ineffective-assistance-of-counsel argument “involves a mixed question of

law and fact that we review de novo.” United States v. Hollis, 552 F.3d 1191, 1194

(10th Cir. 2009). Hargrove “must show both that (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced him.” Id. (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). His “[c]ounsel’s performance will be

deemed deficient if it fell below an objective standard of reasonableness.” Id.

(citing Strickland, 466 U.S. at 688). “In order to show prejudice, [Hargrove] must

show ‘there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” United States v.

Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (quoting Strickland, 466 U.S. at 694).

“We need not analyze both the performance and prejudice prongs of the Strickland

test if defendant fails to make a sufficient showing of one.” Hollis, 552 F.3d at 1194

(internal quotation marks omitted).

       In his application for a COA, Hargrove raises five of the seven issues he raised

in his § 2255 motion. He asserts the ineffectiveness of trial counsel: (1) in failing to

timely move to dismiss counts 1 and 2 of the indictment because the charges were

barred by the statute of limitations; (2) in failing to use available court funds to

obtain and present expert testimony on how a key witness’s mental status affected her

testimony; (3) in failing to thoroughly cross-examine that key witness’s claim that the

spirits of the two murder victims in counts 1 and 2 visited her; (4) in failing to object


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when the district court refused to compel that key witness to release her psychiatric

records; and (5) in failing to request the services of an expert witness with regard to a

witness who identified Hargrove as the assailant of the murder victim in count 3. We

find it necessary to address only his first claim.

      Counts 1 and 2 charged Hargrove under 18 U.S.C. §§ 924(j)(1) and 1111 with

committing two murders in February 1998 “in the course of a violation of . . . [18

U.S.C. §] 924(c), that is, carrying and using and possessing in furtherance of and

discharging a firearm during and in relation to a drug trafficking crime, . . . a

violation of 21 U.S.C. § 841(a)(1).” Hargrove, 382 F. App’x at 782 (internal

quotation marks omitted). Section 924(j)(1) adds the possibility of the death penalty,

life imprisonment, or imprisonment “for any term of years” where the use of a

firearm in violation of § 924(c) caused a death constituting a murder, “as defined in

section 1111.” 18 U.S.C. § 924(j)(1).

      The district court pointed out our previous holding that “[§] 924(j) does not set

forth a discrete crime” from § 924(c). United States v. Hargrove, Nos. 03-20192-CM

(Criminal), 12-2180-CM (Civil), 2013 WL 4787917, at *4 (D. Kan. Sept. 9, 2013)

(citing United States v. Battle, 289 F.3d 661, 667 (10th Cir. 2002)). The court

assessed Hargrove’s argument that “‘since [§] 924(j) does not set forth a discrete

crime and it does not apply unless the government presents evidence demonstrating a

violation of 18 U.S.C.S. § 9[24](c), the “evidence” relied [on] by the government

during the trial must be within the statute of limitations.’” Hargrove, 2013 WL


                                           -5-
4787917, at *4 (quoting R., Doc. 433, at 22) (third alteration in original) (emphasis in

original). The court acknowledged that a charge under § 924(c) is governed by a

five-year statute of limitations because it is not a capital offense, see id.(citing

18 U.S.C. § 3282(a)), but the court reasoned that “[b]ecause [a violation of

§ 924(j)(1)] is potentially punishable by death, § 924(j)[(1)] has no statute of

limitations,” id. (citing 18 U.S.C. § 3281). The court rejected Hargrove’s argument

that a charge under § 924(j)(1) is also subject to the five-year statute of limitations

applicable to § 924(c) because it “would directly undermine the purpose of

§ 924(j)[(1)],” which, the court explained, was to “increase[] the punishment of

§ 924(c) and dispose[] of the statute of limitations.” Id. The court concluded that

Hargrove failed to show trial counsel’s ineffectiveness because his proposed

argument “would have been unavailing.” Id. at *5.

       Hargrove concedes on appeal that § 924(j)(1) has no statute of limitations.

See Aplt. Combined Opening Br. & Appl. for COA at 6. Otherwise, his combined

brief and application for a COA is, in large part, a copy of his § 2255 motion. He

fails to explain to us why he believes that the district court’s assessment of his first

claim is debatable or wrong. See Bedford, 628 F.3d at 1234. Because he has failed

to carry his burden in this respect, we deny a COA on this claim.1


1
        Although Hargrove framed this issue in terms of a request for an evidentiary
hearing regarding the prejudice resulting from the asserted ineffective assistance of
trial counsel, he has not made clear what facts needed development. In any event, we
find no error. A petitioner for habeas relief is entitled to an evidentiary hearing on a
                                                                              (continued)
                                          -6-
       With regard to the other issues in Hargrove’s application for a COA, we have

reviewed the materials and deny a COA for substantially the reasons given by the

district court.

       The application for a COA is denied, and the appeal is dismissed.


                                               Entered for the Court


                                               Bobby R. Baldock
                                               Circuit Judge




motion under 28 U.S.C. § 2255 “[u]nless the motion and the files and records of the
case conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255(b). “We
review the denial of an evidentiary hearing in a § 2255 proceeding for an abuse of
discretion.” United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002). In
light of Hargrove’s failure to show that the district court’s conclusion that trial
counsel was not constitutionally ineffective is debatable or wrong, it follows that the
court did not abuse its discretion in failing to hold a hearing on this claim.



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