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

                                FOR THE TENTH CIRCUIT                         August 21, 2015
                            _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

v.                                                           No. 15-6081
                                                  (D.C. Nos. 5:14-CV-01107-HE and
ERIC EUGENE TURNER,                                     5:11-CR-00310-HE-1)
                                                             (W.D. Okla.)
         Defendant - Appellant.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY*
                      _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

     Eric Eugene Turner, a federal prisoner proceeding pro se, seeks to appeal from the

district court’s denial of his 28 U.S.C. § 2255 motion for habeas relief from his sentence.

Turner requests a certificate of appealability (“COA”) and leave to proceed in forma

pauperis (“IFP”) on appeal. For the reasons stated below, we DENY his request for a

COA, deny his motion to proceed IFP, deny his request for the appointment of counsel on

appeal, and DISMISS this matter.



     *
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                               I.   BACKGROUND

   In 2014, Turner pleaded guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). Because he qualified as an armed-career

offender under § 924(e), he was sentenced to serve 180 months of imprisonment, the

mandatory minimum. He qualified as an armed-career criminal because he had three or

more earlier convictions for “serious drug offenses” as defined by 18 U.S.C. § 924(e)(2).

On direct appeal, Turner had challenged his enhanced sentence under the ACCA,

contending that his drug convictions should not count separately because—in his view—

they were really one criminal episode. We rejected this argument in United States v.

Turner, 508 F. App’x 763 (10th Cir.) (unpublished), cert. denied, 134 S. Ct. 355 (2013).

   After the Supreme Court denied certiorari, Turner filed a pro se motion seeking

habeas relief under 28 U.S.C. § 2255 in the United States District Court for the Western

District of Oklahoma. The district court denied his motion for habeas relief. It also denied

his request for a COA because it concluded that Turner did not make “a substantial

showing of the denial of a constitutional right.” R. vol. I at 73 (quoting 28 U.S.C.

§ 2253(c)(2)). In addition, it denied Turner’s request to stay the case pending the

Supreme Court’s decision in Johnson v. United States, 134 S. Ct. 1871 (2014). Finally, it

denied his request for leave to appeal in forma pauperis. Turner timely appealed.1

   Now, in his Application for a Certificate of Appealability, Turner raises three issues:

(1) that the district court abused its discretion by refusing to stay his case pending the

   1
    Because Turner proceeds pro se, we review his pleadings and filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Lewis v. C.I.R., 523 F.3d 1272,
1273 n.2 (10th Cir. 2008).
                                             2
Supreme Court’s decision in Johnson; (2) that the district court committed clear error and

abused its discretion at sentencing by imposing the enhanced sentence despite the

government’s not having provided “Shepard documents”; and (3) that his trial and

appellate counsel provided ineffective assistance of counsel for failing to object at

sentencing, or to raise on direct review, that the government never established its burden

of proof to enhance his sentence under the Armed Career Criminal Act (“ACCA”). We

deny his request for a COA.


                               II.   DISCUSSION

   We must address the jurisdictional prerequisite of whether to grant Turner a COA on

his claims before we can reach the merits. 28 U.S.C. § 2253(c)(1)(B); United States v.

Tony, 637 F.3d 1153, 1157 (10th Cir. 2011). We will issue a COA only “if the [movant]

has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). A

movant can satisfy this standard by demonstrating that “reasonable jurists could debate

whether . . . the [§ 2255 motion] should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.” Tony,

637 F.3d at 1157 (omission in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). We now turn to Turner’s arguments.

   A. Johnson Claim

   Turner argues that the district court abused its discretion by denying his request to

stay his habeas motion pending the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015). Ultimately, Johnson held that the residual clause of 18

                                            3
U.S.C. § 924(e)(3)(A) is unconstitutionally vague. Id. at 2563; see also § 924(e)(2). The

district court denied Turner’s request because the provision at issue in Johnson, 18

U.S.C. § 924(e)(2)(B)(ii), “is not pertinent here.” R. vol. I at 73. We agree. Turner was

convicted under § 924(e)(1) based on three earlier convictions for “serious drug

offense[s]” under § 924(e)(2)(A). The district court was correct that the Supreme Court’s

decision in Johnson addressed an issue not relevant to Turner’s conviction. Thus, Turner

has failed to make a substantial showing that he was denied a constitutional right and we

deny him a COA on this claim.

   B. Shepard Documents

   Turner contends that the district erred by sentencing him under the ACCA without

requiring that the government submit “Shepard documents”—referencing Shepard v.

United States, 544 U.S. 13 (2005)—to prove that his earlier drug convictions met the

requirements for “serious drug offenses” as defined under § 924(e)(2)(A). Here, we note

that Turner has provided us nothing even suggesting that the state drug statute had

subparts—one qualifying as a “serious drug offense” (drug trafficking with a maximum

sentence of five years or more), and another that did not qualify (drug trafficking with a

maximum sentence less than five years, or drug possession).

   Turner neither objected at his sentencing on this ground nor pursued it on direct

appeal. Accordingly, he is procedurally barred from raising the issue in his application

for a COA. See, e.g., Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (refusing to

consider an argument in a COA application that was not raised in the district court);

United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (stating that under

                                            4
procedural default principles, § 2255 motions “are not available to test the legality of

matters which should have been raised on direct appeal.” (citing United States v. Frady,

456 U.S. 152 (1982))).

   In addition, he fails to recognize the importance of the PSR on his present claim. In

Turner’s PSR, we see four drug trafficking convictions with specified conduct: (1) on

October 14, 2003, he was sentenced in Oklahoma state court to 20 years of

imprisonment, the remainder suspended on August 27, 2009—“on July 31, 2002, the

defendant sold 0.8 grams of crack cocaine valued at $80.00 to a confidential informant”;

(2) the same day, he received the same sentence—“on July 31, 2002, the defendant sold

1.7 grams of crack cocaine valued at $100.00 to a confidential informant”; (3) that same

day he received the same sentence—“on July 8, 2002, the defendant sold $40.00 worth of

crack cocaine to a confidential informant”; and (4) that same day he received the same

sentence—“on September 9, 2002, the defendant sold crack cocaine valued at $60.00 to a

confidential informant.” R. vol. I at 43–46.

   We note that Turner did not object to the facts contained in the PSR’s recitation of his

drug trafficking felonies. Those facts—showing distribution, not possession, and showing

a maximum sentence greater than five years—establish the appropriateness of

characterizing all four convictions as “serious drug offenses” under 18 U.S.C.

§ 924(e)(2)(A)(ii). Having failed to object to the PSR’s facts underlying his earlier drug

felonies, Turner is in no position to do so now. See United States v. Harris, 447 F.3d

1300, 1306 (10th Cir. 2006) (“Criminal Procedure Rule 32 requires the defendant to

affirmatively point out any fact in the PSR that he contends is inaccurate. Absent an

                                               5
objection to the PSR, the district court may accept any undisputed portion of the [PSR] as

a finding of fact,” and “[t]hus, the district court could properly rely on the PSR to

conclude that his prior crimes were separate [under the ACCA].”). Again, we conclude

that Turner has failed to make a substantial showing that he was denied a constitutional

right, and so we deny him a COA on this claim.

   C.     Ineffective Assistance of Counsel

   Turner argues that his trial, and later appellate, counsel provided ineffective assistance

of counsel by failing to object to the lack of “Shepard documents” at the sentencing

hearing, and by failing to raise the issue on direct appeal. To prevail on a Sixth

Amendment claim of ineffective assistance of counsel, Turner must first “show that

counsel’s representation fell below an objective standard of reasonableness.” Strickland

v. Washington, 466 U.S. 668, 688 (1985). Second, Turner must prove prejudice by

demonstrating “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Because Turner must satisfy both prongs to succeed on his ineffective assistance of

counsel claim, the court may consider them in either order and need not address both “if

the defendant makes an insufficient showing in one.” Id. at 697.

   Turner contends that he was prejudiced by his counsel’s failure to demand that the

government put forth Shepard documentation proving the predicate drug convictions

underlying the ACCA. In view of his admitted conduct underlying his earlier drug

convictions, neither “Shepard documents” nor anything else would matter. Nor do we

believe that any failure to demand “Shepard documents” was a substandard performance

                                             6
by his attorney. In an abundance of caution, the PSR author advised the court, counsel for

the parties, and Turner himself that Shepard had been accounted for and ruled out as a

valid issue:

       The probation officer has reviewed one or more approved documents
       articulated in Shepard v. U.S., 544 U.S. 13 (2005) in making this
       designation. The documents are available for review by the court or
       counsel, if requested.

R. vol. I at 43–46. Turner offers nothing upon which we might believe his attorney did

not accept the probation officer’s offer to review the records from his earlier drug

convictions. But doing so, or not doing so, would not have helped Turner. His earlier

drug convictions were for drug trafficking and punishable for more than five years.

   In view of this, we once again must conclude that Turner has failed to make a

substantial showing that he was denied a constitutional right, and so we deny him a COA

on this final claim.

                             III.   CONCLUSION

   In sum, we deny Turner’s request for a COA and dismiss this matter. We also deny

his motion to proceed IFP because he has not demonstrated “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)). Finally, we deny Turner’s request for the




                                            7
appointment of counsel on appeal.


                                    ENTERED FOR THE COURT


                                    Gregory A. Phillips
                                    Circuit Judge




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