                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0163p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                              Petitioner-Appellant, -
 TODD A. DUNHAM,
                                                       -
                                                       -
                                                       -
                                                           Nos. 04-2567; 05-1897
          v.
                                                       ,
                                                        >
 UNITED STATES OF AMERICA,                             -
                             Respondent-Appellee. -
                                                      N
                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
                      No. 03-00384—Gordon J. Quist, District Judge.
                                            Argued: April 19, 2007
                                      Decided and Filed: May 8, 2007
             Before: MERRITT and MARTIN, Circuit Judges; FORESTER, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: David W. Camp, LAW OFFICES OF DAVID W. CAMP, Jackson, Tennessee, for
Appellant. Brian P. Lennon, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: David W. Camp, LAW OFFICES OF DAVID W. CAMP,
Jackson, Tennessee, for Appellant. Brian P. Lennon, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        MERRITT, Circuit Judge. Todd Dunham is serving a 299-month prison sentence for
conspiracy to distribute marijuana, cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and
846 and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In this
appeal, he challenges the District Court’s denial of his motion under 28 U.S.C. § 2255 for ineffective
assistance of counsel and its subsequent refusal to rule on the merits of his Rule 60(b) motion to
vacate the earlier § 2255 denial. For the reasons discussed below, we affirm the decisions of the
District Court.



         *
          The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                          1
Nos. 04-2567; 05-1897                   Dunham v. United States                                                 Page 2


                                                           I.
        While in prison for a 1994 conviction for conspiracy to possess and distribute marijuana,
Todd Dunham managed a drug trafficking ring that brought marijuana, cocaine and heroin from
Mexico to dealers in Lansing, Michigan. With the aid of his girlfriend, Dunham also smuggled
drugs into federal prison and distributed them to other inmates. After he was released from prison,
federal agents searched the home of Dunham’s girlfriend in Lansing and collected evidence that
indicated Dunham was smuggling drugs and had become affiliated with Mexican prison gangs. In
May 1999, Dunham was arrested and charged with seven narcotics and firearms violations.
        On June 14, 2000, Dunham pled guilty to one count of conspiracy to distribute marijuana,
cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 and one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In August 2000, Dunham moved
to withdraw, claiming his guilty plea had been coerced through prosecutorial misconduct and his
own counsel’s lack of preparation. The District Court denied the motion and sentenced Dunham to
299 months’ imprisonment on the conspiracy charge and 120 months’ imprisonment on the firearms
charge to run concurrently. Dunham appealed his sentence through new counsel, specifically
objecting to a two-point increase for obstruction of justice. The Sixth Circuit affirmed the sentence.
United States v. Dunham, 295 F.3d 605 (6th Cir. 2002).
         In June 2003, Dunham filed a § 2255 motion to vacate his conviction and sentence on the
grounds of: (1) violation of double jeopardy; (2) ineffective assistance of trial counsel for failing
to raise the double jeopardy issue; (3) ineffective assistance of appellate counsel for failing to raise
the double jeopardy issue; and (4) violation of his due process rights stemming from the denial of
his motion to remove his trial counsel after he pled guilty. On April 5, 2004, the District Court
denied the motion in a 13-page opinion.
        On April 23, 2004, Dunham moved for reconsideration of his § 2255 motion. The District
Court denied the motion to reconsider on May 17, 2004. In July 2004, Dunham moved to amend
his motion to reconsider. In November 2004, the District Court denied the motion to amend because
it had already denied the motion to reconsider.
        Dunham appealed all three rulings, claiming that he never received the District Court’s
May 17, 2004, ruling denying his motion to reconsider. In an order dated February 9, 2005, a three
judge panel of the Sixth Circuit found that it did not have jurisdiction over Dunham’s appeal of the
April 5, 2004, and May 17, 2004, decisions by the District Court because Dunham     failed to comply
with the timeliness provision of Federal Rule of Appellate Procedure 4(a).1 Then, in May 2005, the
Sixth Circuit granted Dunham a certificate of appealability on the issue of ineffective assistance of
counsel “particularly as it relates to sentencing pursuant to United States v. Booker, 125 S. Ct. 738
(2005).”
       Meanwhile, Dunham revisited the District Court on May 9, 2005, to file a motion under
Federal Rule of Civil Procedure 60(b), requesting that the court vacate its April 5, 2004, and
May 17, 2004, rulings, once again claiming that he did not receive the May 17, 2004, denial of his
motion to reconsider. Ten days later, the District Court dismissed the motion as moot, since the
Sixth Circuit had accepted Dunham’s § 2255 appeal, docketed as case number 04-2567. Dunham
timely appealed the Rule 60(b) denial.



         1
            Federal Rule of Appellate Procedure 4(a)(1) requires that “[w]hen the United States or its officer or agency
is a party, the notice of appeal may be filed by either party within 60 days after the judgment or order appealed from is
entered.”
Nos. 04-2567; 05-1897             Dunham v. United States                                      Page 3


        In this appeal, Dunham raises two issues: (1) ineffective assistance of counsel “as it relates
to Booker;” and (2) the District Court’s mootness decision on his Rule 60(b) motion. In his brief,
Dunham expands his ineffective assistance of counsel argument to include his trial counsel’s
failures to raise a double jeopardy objection and to adequately discuss the consequences of a guilty
plea.
                                                  II.
A. Ineffective assistance of counsel claim
        Pursuant to his certificate of appealability, Dunham argues that his trial counsel was
ineffective for failing to raise what is now commonly known as a Booker argument. Specifically,
Dunham contends that a reasonably effective counsel would have objected to his sentence because
the District Court considered evidence that was not admitted to by Dunham or found by a jury. To
show a Sixth Amendment violation for ineffective assistance of counsel, Dunham must show (1) that
his lawyer’s performance was deficient as compared to an objective standard of reasonable
performance, and (2) that there is a reasonable probability that the lawyer’s errors prejudiced the
outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
        We note at the outset that Dunham pled guilty and was sentenced in 2000 and his direct
appeal concluded in 2002, three years before the Supreme Court decided United States v. Booker,
543 U.S. 220 (2005). Dunham argues that Booker should be applied to him retroactively, because
his sentence was handed down after Apprendi v. New Jersey, 530 U.S. 466 (2000). This fact is
important, according to Dunham, because Apprendi’s holding that the enhancement of a sentence
under New Jersey’s sentencing guidelines violated the Sixth Amendment should have put his
counsel on notice to argue that his sentence was similarly unconstitutional because it was based on
facts not admitted by Dunham or found by a jury. Dunham’s argument is unavailing because this
court specifically rejected this type of Apprendi-based argument in the period before Booker was
decided. United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc). In Koch, this court held
that neither Apprendi, nor Blakely v. Washington, 542 U.S. 296 (2004), required that the Federal
Sentencing Guidelines be overturned. Assuming that Dunham’s counsel was ineffective for failing
to make an Apprendi argument, Koch forecloses the possibility that the argument would have led
to a different result in his case.
        The only other way Dunham could have been eligible for relief under Booker was to have
a direct appeal pending when the case was decided in 2005. Because Dunham was sentenced in
2000 and his direct appeal was decided in 2002, there is no chance that his appeal could have
remained pending more than two years later. In short, there is no way Dunham could have obtained
Booker relief on direct appeal, even if his attorney had raised the issue. Since Dunham cannot
satisfy the second prong of Strickland, we affirm the District Court’s decision to deny his § 2255
motion for ineffective assistance of counsel.
        Appellate review of a petitioner’s § 2255 motion is limited to those issues specified in the
certificate of appealability. Pruitt v. United States, 233 F.3d 570, 572-73 (8th Cir. 2000); McNeely
v. Blanas, 336 F.3d 822, 832 n.10 (9th Cir. 2003). Dunham’s certificate of appealability authorizes
him to pursue an appeal for ineffective assistance of counsel “particularly as it relates to sentencing
pursuant to” Booker. Despite this apparent limitation, Dunham expands upon his ineffective
assistance of counsel argument to include claims that his counsel was ineffective for failing to
adequately discuss the consequences of his guilty plea and for failing to raise a double jeopardy
objection. For us to consider these claims would not only go beyond the scope of the certificate of
appealability, it would contravene this court’s February 2005 order that Dunham failed to timely
appeal the District Court’s denial of his § 2255 motion. Because Dunham did not receive a
certificate of appealability for these ineffective assistance claims, we do not reach their merits.
Nos. 04-2567; 05-1897                    Dunham v. United States                                                 Page 4


B. Rule 60(b) motion
       Dunham next appeals the District Court’s denial of his Rule 60(b) motion to vacate its
decision regarding his § 2255 motion and subsequent motion to reconsider.2 The District Court did
not reach the merits of this motion, instead finding that the issue was moot since the Court of
Appeals had already accepted jurisdiction over Dunham’s appeal.
        The traditional rule is that “a timely appeal divests the district court of jurisdiction to
reconsider its judgment until the case is remanded by the Court of Appeals.” Pittock v. Otis Elevator
Co., 8 F.3d 325, 327 (6th Cir. 1993). This court has carved out an exception to this rule that allows
a District Court to entertain a motion for relief from judgment after an appeal has been filed if it so
chooses. First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976). The
decision of whether to hear this type of post-judgment motion while an appeal is pending is within
the District Court’s discretion, and there is no error where the District Court decides to let the appeal
run its course. LSJ Investment Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999).
        In this case, Dunham filed a notice of appeal challenging all of the District Court’s rulings
on his § 2255 motion on December 6, 2004. Several of the issues raised in his appeal were denied
as untimely in an order dated February 9, 2005; the remainder of Dunham’s claims are adjudicated
in this appeal. Since Dunham sought relief from the denial of his § 2255 motion in the Court of
Appeals before filing his Rule 60(b) motion on May 9, 2005, the District Court could have, but was
not obligated to address the merits of his motion. Seeing no error in the District Court’s dismissal
of Dunham’s Rule 60(b) motion, we affirm its decision.
         For the foregoing reasons, the decisions of the District Court are affirmed.




         2
           Rule 60(b) provides in relevant part, “On motion and upon such terms as are just, the court may relieve a party
or a party’s legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise or
excusable neglect.” Fed. R. Civ. P 60(b).
