                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS June 27, 2012

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-3096
                                             (D.C. Nos. 6:11-CV-01300-MLB and
 v.                                                6:08-CR-10188-MLB-1)
                                                         (D. Kansas)
 ROBERT F. ROBERTS,

              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.




      Petitioner, Robert F. Roberts, seeks a certificate of appealability (“COA”)

so he can appeal the district court’s denial of the motion to vacate, set aside, or

correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255

motion unless he first obtains a COA). In 2009, Roberts was convicted of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

judgment of conviction was affirmed by this court on March 29, 2011. United

States v. Roberts, 417 F. App’x 812 (10th Cir. 2001). Roberts filed the instant
§ 2255 motion on September 30, 2011, raising four claims of ineffective

assistance of trial counsel. The district court denied relief on all four claims.

      Roberts cannot appeal the denial of his motion until he first obtains a COA

from this court. See 28 U.S.C. § 2253(c)(1)(B). To be entitled to a COA, Roberts

must make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

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

v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether

Roberts has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although Roberts need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id. (quotations omitted).

      In his COA application and appellate brief, Roberts challenges the district

court’s disposition of his four claims and also argues the court abused its

discretion by refusing to permit him to amend his § 2255 motion. His first two

claims relate to allegations his trial counsel failed to investigate whether he was

legally permitted to carry a firearm in Kansas despite a 1999 Kansas felony

conviction. See 18 U.S.C. § 921(a)(20) (providing a prior conviction does not

                                         -2-
trigger the federal prohibition on possession of a firearm if the defendant “has had

[his] civil rights restored.”); see also See United States v. Baker, 508 F.3d 1321,

1328 (10th Cir. 2007) (looking to the “whole of state law” to determine whether a

defendant’s firearms privileges are restricted). It is clear these two claims were

properly dismissed by the district court. In 1999, Roberts was convicted of a

robbery, possession of cocaine with intent to sell, and criminal possession of a

firearm. He was sentenced to forty-four months’ incarceration. His probation

was revoked in 2000 and he was paroled in 2006. His sentence expired on June

26, 2008. The instant felon-in-possession offense occurred on April 6, 2008.

Kansas criminalizes the possession of a firearm “by a person who, within the

preceding ten years . . . has been released from imprisonment for” specifically

enumerated felonies, including robbery. Kan. Stat. Ann. § 21-4204(a)(4) (2007). 1

Because Roberts has wholly failed to show that his right to possess a firearm was

restored under Kansas law, he cannot show he was prejudiced by his attorney’s

performance. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998)

(holding a court may address Strickland’s performance and prejudice prongs “in

any order, but need not address both if [movant] fails to make a sufficient

showing of one”). Although Roberts repeatedly argues it was the Government’s

burden to prove the elements of the offense at trial, we note it is now Roberts’s

      1
      After Roberts committed the offense of conviction, the Kansas legislature
moved the relevant statute from Kan. Stat. Ann. § 21-4204 to Kan. Stat. Ann. 21-
6304.

                                         -3-
burden to prove his counsel was constitutionally ineffective. He cannot meet that

burden with his unsupported and conclusory assertions.

      Roberts has also failed to meet his burden of showing his counsel was

ineffective for failing to object or move for a mistrial when the trial court denied

the jury’s request for a read-back of testimony. He has again failed to show any

prejudice flowing from counsel’s allegedly deficient performance. Finally,

Roberts argues his counsel failed to properly familiarize himself with a

photograph before inviting testimony about it. This court has already concluded

the admission of the photograph was not error. Roberts, 417 F. App’x at 821-22.

Further, counsel relied on the photograph to support the position Roberts did not

possess a gun the night of his arrest. Id. at 822 (quoting from counsel’s closing

argument). Not only were counsel’s actions objectively reasonable, Roberts has

failed to show the jury’s verdict would be different if the photograph had not been

admitted. See United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000)

(“In order to obtain habeas relief for ineffective assistance of counsel, a petition

must establish both that his attorney’s representation was deficient and that he

was prejudiced by that deficiency.” (quotation omitted)).

      We also deny relief on Roberts’s assertion the district court abused its

discretion by refusing to permit him to supplement or amend his § 2255 motion.

Roberts sought to add four claims alleging his appellate counsel was ineffective

for failing to develop record support for the four arguments raised in his original

                                          -4-
§ 2255 motion. “Under Fed. R. Civ. P. 15(a), a party may amend its pleading

once as a matter of course prior to response by the opposing party.” United States

v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007). The district court refused to

permit Roberts to amend his § 2255 motion because the proposed amendments

were not signed under penalty of perjury and because he sought to raise new

claims. See id. at 1315. This court, however, has previously held that a district

court must give a § 2255 movant the opportunity to amend his motion to conform

to procedural requirements even if he seeks to add a new claim. See id. at 1316-

17 & 1317 n.3 (holding a § 2255 movant seeking to add a timely claim should be

given “an opportunity to conform his motion to Rule 2(b)’s procedural

requirements”). We conclude, therefore, the district court abused its discretion by

refusing to permit Roberts to amend his motion to add the four ineffective-

assistance-of-appellate-counsel claims. We further conclude, however, that

Roberts is not entitled to a COA on this issue because he has not made “a

substantial showing of the denial of a constitutional right” with respect to these

four new claims. 28 U.S.C. § 2253(c)(2). We have already concluded his four

claims of ineffective assistance of trial counsel are meritless. Additionally, in his

application for COA and appellate brief, Roberts has wholly failed to identify the

information appellate counsel allegedly failed to garner and how that information

would entitle him to relief on his claims that trial counsel was ineffective.




                                          -5-
      Having undertaken a review of Roberts’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Roberts is not entitled to a COA. The district court’s resolution of his

§ 2255 motion is not reasonably subject to debate and the issues he seeks to raise

on appeal are not adequate to deserve further proceedings. Accordingly, this

court denies Roberts’s request for a COA and dismisses this appeal. Roberts’s

request to proceed in forma pauperis on appeal is granted.


                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




                                          -6-
