                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          April 9, 2010
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Respondent - Appellee,

        v.                                                    No. 10-3000
                                                  (D. Ct. Nos. 6:09-CV-01130-JTM &
 JAMES E. BAKER,                                        6:06-CR-10129-JTM-1)
                                                                (D. Kan.)
               Petitioner - Appellant.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Petitioner-appellant James Baker, a federal prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his motion

to vacate, correct, or set aside his conviction, which he brought under 28 U.S.C. § 2255.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), DENY Mr. Baker’s request

for a COA, and DISMISS his appeal.
                                   I. BACKGROUND

       In 2006, Mr. Baker was convicted of being a felon in possession of ammunition in

violation of 18 U.S.C. § 922(g)(1). The district court concluded that Mr. Baker was an

armed career criminal based on three prior state convictions and enhanced his sentence

accordingly. Ultimately, Mr. Baker was sentenced to 235 months’ imprisonment. On

direct appeal, we rejected Mr. Baker’s arguments that he was entitled to a jury instruction

regarding an “innocent possession” defense and that he could not be sentenced as an

armed career criminal because his civil rights had been restored for at least one of his

prior state convictions. See United States v. Baker, 508 F.3d 1321, 1330 (10th Cir. 2007).

After this court denied Mr. Baker’s request for a rehearing en banc, see United States v.

Baker, 523 F.3d 1141 (10th Cir. 2008), and the Supreme Court denied his petition for

certiorari, see Baker v. United States, 129 S. Ct. 349 (2008), Mr. Baker sought this post-

conviction relief.

       In his § 2255 motion to vacate, correct, or set aside his conviction, Mr. Baker

asserted various grounds for relief including multiple claims of ineffective assistance of

counsel. The bases for his ineffective assistance claims were his attorney’s failure to: (1)

assert a due process violation based on the jury’s viewing him in handcuffs; (2) assert a

“mistake of fact” defense rather than an “innocent possession” defense; and (3) appeal a

previous dismissal of Mr. Baker’s prosecution without prejudice. The district court

rejected all of Mr. Baker’s claims and denied his motion. Mr. Baker now seeks a COA to

appeal from that decision.

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                                      II. DISCUSSION

       A petitioner may not appeal the denial of habeas relief under § 2255 unless he

obtains a COA. 28 U.S.C. § 2253(c)(1). We will issue a COA “only if the applicant has

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

When, as in this case, the district court denies the petition on the merits, “[t]he petitioner

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

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       In his application for a COA, Mr. Baker first alleges that the trial judge

“constructively amended” his indictment by instructing the jury that for the purposes of §

922(g)(1), “ammunition” includes cartridge casings. Mr. Baker did not assert this

constructive amendment argument, however, in his § 2255 motion. In considering an

application for a COA, we examine whether reasonable jurists could debate the district

court’s resolution of the petitioner’s claims. Because Mr. Baker did not present any

iteration of his constructive amendment argument to the district court in his § 2255

motion, that argument has no bearing on whether the district court’s resolution of his

constitutional claims is debatable by reasonable jurists. We therefore do not consider this

issue here.

       Mr. Baker also alleges in his application for a COA that his trial counsel was

ineffective in failing to ask the trial court to instruct the jury to resolve whether his civil

rights had been restored on his prior state convictions. In his § 2255 motion, Mr. Baker

contended that the question of whether his civil rights had been restored on his prior state

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convictions is a question of fact that should have been decided by the jury rather than the

trial court; however, he did not raise this argument in the context of an ineffective

assistance of counsel claim. Although Mr. Baker technically couches his “restoration of

civil rights” argument in terms of an ineffective assistance of counsel claim for the first

time in his application for COA, we construe his pro se filings liberally, Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991), and therefore consider this argument for the

purposes of Mr. Baker’s application for a COA.

         The district court concluded that the restoration of civil rights issue is a question of

law that was properly decided by the trial court. We have held that whether a defendant’s

sentence is properly enhanced under the Armed Career Criminal Act is a question of

statutory interpretation that we review de novo. United States v. Burns, 934 F.2d 1157,

1159 (10th Cir. 1991). Furthermore, we have concluded that “in determining whether a

state has restored a convicted felon’s privilege to possess a firearm, one must look to the

whole of state law rather than simply to the certificate granting the restoration of civil

rights.” Id. In light of this precedent, reasonable jurists could not debate whether the

district court properly concluded that the restoration of civil rights issue is a question of

law. Furthermore, Mr. Baker’s counsel was not ineffective in failing to seek a jury

instruction on this legal question. Accordingly, Mr. Baker’s second argument is without

merit.

         Finally, Mr. Baker contends that his trial counsel was ineffective in seeking a jury

instruction on an innocent possession defense rather than a mistake of fact defense. Mr.

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Baker asserted this argument in his § 2255 motion, and the district court rejected it,

concluding that Mr. Baker’s counsel’s decision to pursue an innocent possession defense

rather than a mistake of fact defense was a reasonable tactical decision. To succeed on

his ineffective assistance of counsel claim, Mr. Baker must show “both that his counsel’s

representation ‘fell below an objective standard of reasonableness,’ and that there is a

reasonable probability that, but for the counsel’s error, ‘the result of the proceeding would

have been different.’” United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)

(quoting Strickland v. Washington, 466 U.S. 668 (1984)). “Whether to raise a particular

defense is one aspect of trial strategy, and informed strategic or tactical decisions on the

part of counsel are presumed correct, unless they were completely unreasonable, not

merely wrong.” Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005)

(internal quotations omitted). Although we ultimately rejected Mr. Baker’s innocent

possession defense on direct appeal, that does not mean that the decision to assert it was

unreasonable. At the time of Mr. Baker’s trial, at least one circuit court had recognized

an innocent possession defense in the § 922(g)(1) context, see United States v. Mason,

233 F.3d 619, 623 (D.C. Cir. 2000), and on direct appeal, one member of the appellate

panel would have recognized the defense. See Baker, 508 F.3d at 1330 (Holloway, J.,

dissenting). Similarly, the decision not to assert a mistake of fact defense was also

reasonable. Indeed, Mr. Baker has not shown that such a defense is even supported by

the record. Accordingly, reasonable jurists could not debate whether Mr. Baker’s trial

counsel was ineffective in pursuing an innocent possession defense rather than a mistake

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of fact defense.

                               III. CONCLUSION

       For the foregoing reasons, we DENY Mr. Baker’s request for COA and DISMISS

his appeal.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Circuit Judge




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