                                 RECOMMENDED FOR PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 20a0137p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 CHRISTOPHER MOODY,                                           ┐
                                  Petitioner-Appellant,       │
                                                              │
                                                               >        No. 19-5015
        v.                                                    │
                                                              │
                                                              │
 UNITED STATES OF AMERICA,                                    │
                                  Respondent-Appellee.        │
                                                              ┘

                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
         Nos. 3:09-cr-00240-21; 3:17-cv-00611—Aleta Arthur Trauger, District Judge.

                                 Decided and Filed: May 6, 2020

                      Before: GUY, THAPAR, and BUSH, Circuit Judges.
                                    _________________

                                             COUNSEL

ON BRIEF: Seth A. Mohney, COVINGTON & BURLING LLP, Washington, D.C., for
Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville,
Tennessee, for Appellee.
                                       _________________

                                              OPINION
                                       _________________

       THAPAR, Circuit Judge. Christopher Moody asks this court to unwind his federal
convictions. But his habeas claims never should have reached us in the first place. The district
court denied Moody’s habeas petition but certified some of his claims for appeal. Because
reasonable jurists could not doubt that the district court properly denied relief, we vacate the
certificate of appealability and dismiss the appeal.
 No. 19-5015                            Moody v. United States                             Page 2


                                                  I.

       Moody pled not guilty to a number of firearms and crack-cocaine charges. At his trial,
the government produced a video of Moody cooking crack on his kitchen stove and waving a
handgun while he mused about the ups and downs of life in “the game” (drug trafficking). For
obvious reasons, Moody tried to keep this video away from the jury. But the court ruled that
most of the video was admissible, and the admissible portions went to the jury.

       Moody then tried to persuade the jury that the video was filmed more than five years
before his indictment, putting it outside the statute of limitations. 18 U.S.C. § 3282(a). But in
the end, the jury convicted Moody on all counts. Due to prior felony drug convictions, Moody
received enhanced, mandatory-minimum life sentences on several counts. He appealed, mainly
on evidentiary grounds relating to the video, but this court affirmed. United States v. Moody,
631 F. App’x 392 (6th Cir. 2015).

       Later, Moody raised a new set of claims on collateral review. See 28 U.S.C. § 2255. The
district court found that not only was each claim meritless, most of them were also procedurally
defaulted (that is, forfeited without excuse). Still, the court authorized Moody to appeal some of
his claims, and this appeal followed.

                                                  II.

       First, some background. For more than a century, Congress has imposed a gatekeeping
process for federal habeas appeals. See Barefoot v. Estelle, 463 U.S. 880, 892 & n.3 (1983),
superseded by statute as recognized in Slack v. McDaniel, 529 U.S. 473 (2000). Under current
law, before appealing a prisoner must first get a certificate of appealability.         28 U.S.C.
§ 2253(c)(1). And to get a certificate, a prisoner must make “a substantial showing of the denial
of a constitutional right.” Id. § 2253(c)(2). That means “showing that reasonable jurists could
debate whether” relief should have been granted. Slack, 529 U.S. at 484. While this standard is
not overly rigid, it still demands “something more than the absence of frivolity.” Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quoting Barefoot, 463 U.S. at 893). In short, a court should
not grant a certificate without some substantial reason to think that the denial of relief might be
incorrect.
 No. 19-5015                          Moody v. United States                                 Page 3


       Crucially, in applying this standard, a court must consider not only the merits of the
underlying constitutional claim but also any procedural barriers to relief.          Buck v. Davis,
137 S. Ct. 759, 777 (2017); Slack, 529 U.S. at 484–85; see also Dufresne v. Palmer, 876 F.3d
248, 254 (6th Cir. 2017). To put it simply, a claim does not merit a certificate unless every
independent reason to deny the claim is reasonably debatable.

       To see how this operates in practice, consider some examples. Suppose that a claim has
arguable merit (or even obvious merit) yet is plainly barred by a procedural default. That claim
should not receive a certificate. E.g., Dufresne, 876 F.3d at 255–56; Berry v. Warden, S. Ohio
Corr. Facility, 872 F.3d 329, 334 (6th Cir. 2017). Or consider a claim that a state court
previously rejected on the merits. See 28 U.S.C. §2254(d). For that claim to warrant appeal,
there must be a substantial argument that the state court’s decision was not just wrong but
objectively unreasonable under the stringent requirements of § 2254(d) (commonly known as
“AEDPA deference”).       See Miller-El, 537 U.S. at 341; see also id. at 349–50 (Scalia, J.,
concurring). If no fair-minded jurist (even one sympathetic to the claim) could doubt that the
state-court decision was defensible, the claim should not be certified.

       The same principle applies to all other procedural barriers—from exhaustion and
nonretroactivity to timeliness and the second-or-successive restrictions. See generally 28 U.S.C.
§§ 2244(b), (d), 2254(b)–(c), 2255(f), (h); Teague v. Lane, 489 U.S. 288 (1989). It also applies
to alternative merits barriers: for instance, a court should not certify an ineffective-assistance-of-
counsel claim where deficiency may exist but the lack of prejudice is indisputable (or vice
versa). See Strickland v. Washington, 466 U.S. 668, 687 (1984). Again, a certificate is improper
if any outcome-determinative issue is not reasonably debatable.

                                                 III.

       Unfortunately, these standards have too often gone ignored. See, e.g., Porterfield v. Bell,
258 F.3d 484, 487 (6th Cir. 2001) (noting “a disturbing lack of uniformity” in applying these
standards). This case is no different. When certifying Moody’s claims for appeal, the district
court’s opinion failed to discuss the requirements for granting a certificate or to provide any
reasoning.     See R. 40, Pg. ID 256 (“The court will, however, issue a certificate of
 No. 19-5015                              Moody v. United States                                        Page 4


appealability[.]”); id. at 257 (“The court will nonetheless grant a COA[.]”); id. at 260 (“The court
will, however, grant a certificate[.]”). We cannot tell what standards governed these choices.
The court may well have certified the claims before us just because they seemed better than
frivolous—which is not enough. Miller-El, 537 U.S. at 338.

        The strongest evidence that the district court applied an incorrect standard (or at best
misapplied the correct one) is the claims themselves. Simply put, reasonable jurists wouldn’t
doubt the correctness of the district court’s denial of these claims. Thus, no certificate was
warranted.

        To see why, consider the certified claims.                 Those claims fall into three groups:
(1) Moody was deprived of his statute-of-limitations defense (violating due process); (2) the past
convictions for his sentencing enhancements weren’t charged in the indictment or found by the
jury (violating his rights to indictment and trial by jury); and (3) his previous lawyers failed to
raise the first two claims sooner (violating his right to effective assistance of counsel).1 See U.S.
Const. amends. V, VI; Strickland, 466 U.S. at 686. (Note that the Strickland claims serve two
functions: not only are they potential grounds for relief, they are Moody’s only hope of curing
the procedural default barring his other claims. See Murray v. Carrier, 477 U.S. 478, 488
(1986).) None should have been certified.

                                                       A.

        A defendant has the right to a meaningful defense, including the right to appropriate jury
instructions on a defense theory. California v. Trombetta, 467 U.S. 479, 485 (1984); Barker v.
Yukins, 199 F.3d 867, 875 (6th Cir. 1999). Here, Moody argues that his key defense (the statute
of limitations) was effectively nullified by (1) a one-word error in the statute-of-limitations jury
instruction and (2) the phrasing of the verdict form. Neither claim is substantial.

        1
          Moody also attempts to argue on appeal that his life sentences amount to cruel and unusual punishment in
violation of the Eighth Amendment. But this claim is outside the certificate of appealability. Moody originally
presented this claim in Count 6 of his amended § 2255 motion, a count not certified for appeal. True, Count 4
(which was certified) contained a fleeting reference to the Eighth Amendment. Yet that count was Moody’s Fifth
and Sixth Amendment challenge to the sentencing enhancements based on his prior convictions. It contained no
substantive Eighth Amendment argument whatsoever. Habeas petitioners may not stretch certified claims to cover
uncertified ones simply by padding them with surplus references to additional amendments. And anyway, Moody’s
Eighth Amendment claim is foreclosed. See United States v. Hill, 30 F.3d 48, 50–51 (6th Cir. 1994).
 No. 19-5015                                  Moody v. United States                                      Page 5


          The Jury Instruction. Moody’s first claim is based on a slip of the tongue. At one point
in its oral instructions, the court told the jury that the government had to prove “that the crimes
charged happened on or before,” not after, the relevant cutoff date. R.* 2663, Pg. ID 14272
(emphasis added).2 That was obviously a mistake.

          Still, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the
level of a due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). To establish
such a violation, Moody must show two things: (1) the trial court’s misstep made the statute-of-
limitations instruction ambiguous; and (2) there is “a reasonable likelihood” (not just “a slight
possibility”) that the jury was actually misled. Waddington v. Sarausad, 555 U.S. 179, 190–91
(2009) (cleaned up). We look at the mistake’s effect in the context of the full instructions and
the entire record, not “in artificial isolation.” Id. at 191 (cleaned up).

          When we do that, Moody’s claim clearly falters.                  Here is the statute-of-limitations
instruction in full:

          The statute of limitations is a law that puts a limit on how much time the
          government has to obtain an indictment. No person shall be prosecuted, tried or
          punished for any offense unless the indictment is found within five years next
          after such offense shall have be[en] committed. The government filed the 11th
          Super[s]eding Indictment on November 13, 2013. The government must
          convince you beyond a reasonable doubt that the crimes charged happened on or
          before November 13, 2008. Thus, a conviction cannot be based upon conduct that
          occurred before this date.
          You may consider the defendant’s conduct prior to the statute of limitations to
          evaluate the defendant’s conduct within the statute of limitations and whether the
          conduct within the statute of limitations establishes the defendant’s guilt beyond a
          reasonable doubt. You cannot use any pre–statute of limitations conduct for any
          other purpose.

R.* 2663, Pg. ID 14272–73. Ambiguous as a whole? Hardly. To see that the errant “before”
didn’t spoil this instruction, just take it sentence by sentence. The first two sentences explained
how the statute of limitations works. Add the third sentence (the date of the indictment) and
the jury could deduce that it could convict only if Moody committed the crimes after November


          2
              “R.*” citations refer to docket entries in Moody’s original criminal case, No. 3:09-cr-00240-21 (M.D.
Tenn.).
 No. 19-5015                          Moody v. United States                               Page 6


13, 2008. When the fourth sentence mistakenly said the opposite, the very next sentence after
that set matters straight, properly charging the jury not to convict for conduct before the cutoff
date. And for good measure, the last two sentences reiterated that pre-cutoff conduct was only
relevant to the extent that it shed light on post-cutoff conduct (because the latter was what really
mattered). All told, the instruction just wasn’t ambiguous. Any juror who considered it as a
whole would have recognized the mistaken “before” as just that—a mistake.

        Nor would it make a difference if (as Moody argues) the written instructions given to the
jury contained the same mistake. We say “if” and “Moody argues” because we don’t know for
sure—the written instructions aren’t in the record. But regardless, the mistake would have been
no less obvious in print. So this factual dispute is beside the point.

        What’s more, even if the instruction could be considered ambiguous, there is no
reasonable likelihood that the jury was misled. The closing arguments for both sides discussed
the statute of limitations at length. And this discussion left no possible doubt about what time
period a conviction had to be for. Here are some samples from the government’s closing and
rebuttal:

        •   “[T]he government’s position is he certainly committed the offenses after November
            13, 2008. . . . [Y]ou’ve got to find the elements of the offense occurred after
            November 13, 2008.” R.* 2663, Pg. ID 14154.
        •   “[Y]ou have to find that the defendant used the house [to manufacture drugs] after
            November 13, 2008. Or had a gun. Basically late 2008, early 2009.” Id. at 14155.
        •   “I’m telling you on behalf of the government, if you find that he didn’t do this stuff
            after the November 13th date, acquit him.” Id. at 14211.

And there were plenty more statements just like these. The bottom line: setting these clear
statements against a one-word mistake in an otherwise correct instruction, it is wholly
implausible that the jury was misled into convicting for conduct before November 13. All
reasonable jurists would recognize this after even a slight review of the record.

        The Verdict Form. Moody’s next claim challenges the inquiries in the verdict form. For
each count, the form asked the jury whether it found Moody guilty of committing that crime
 No. 19-5015                          Moody v. United States                              Page 7


during the time period alleged in the indictment, which sometimes included time-barred periods.
For example, one question read:

       Do you find the defendant, Christopher Moody, guilty of using a place to
       manufacture or distribute a controlled substance under 21 U.S.C. § 856(a) at said
       location between in or around January 2008 through in or around December
       2008?

R.* 2504, Pg. ID 12957. On its face, this question didn’t separate time-barred conduct (before
November 13) from conduct that was fair game (on or after November 13). Nor was the statute
of limitations mentioned anywhere else in the form.

       Constitutional error? No. After all, the verdict form didn’t stand alone. It came with a
user’s manual: the jury instructions. So we evaluate the verdict form in the context of the
instructions as a whole (the same way we evaluate individual statements in the instructions).
See Jones v. United States, 527 U.S. 373, 393 (1999) (“[A]ny confusion created by the verdict
forms was clarified when considered in light of the entire jury instruction.” (cleaned up)); see
also, e.g., Smith v. Spisak, 558 U.S. 139, 143–49 (2010); Penry v. Johnson, 532 U.S. 792, 796–
804 (2001). And as we’ve seen, the instructions adequately conveyed that the jury could convict
only if it found that Moody committed the crimes on or after November 13, 2008. That was
enough.

       Moody resists this conclusion by appealing to Yates v. United States, 354 U.S. 298
(1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 8 (1978). But that
case is inapposite.   There, the Supreme Court simply held that:        (1) one of two possible
conviction theories was time-barred; (2) accordingly, the trial court erred by giving instructions
that allowed a conviction on either theory; and (3) the error was reversible because it was
“impossible” to tell which theory the jury had convicted on.        Yates, 354 U.S. at 311–12.
An important part of the Court’s reasoning was that the jury instructions were “not sufficiently
clear or specific” to support the inference “that the jury understood it must find [the non-time-
barred theory] in order to convict.” Id. at 311.

       None of that (apart from certain conduct being time-barred) is true here. Again, on this
record, the jurors all-but-certainly understood that they were only supposed to convict for
 No. 19-5015                          Moody v. United States                                Page 8


conduct after the cutoff date. The instructions “clear[ly]” and “specific[ally]” told them just that
(notwithstanding the judge’s slip of the tongue). Id. And even if the instruction was less than
clear, the parties’ closing arguments made it more than clear.

       In sum, reasonable jurists would not debate the district court’s conclusion that neither the
instructions nor the verdict form stripped Moody of his statute-of-limitations defense.

                                                 B.

       Next, Moody argues that his enhanced life sentences violate the Fifth and Sixth
Amendments. Why? Because his past convictions weren’t alleged in the indictment or found by
the jury. The fatal flaw with this argument is that the Supreme Court has squarely rejected it.
Almendarez-Torres v. United States, 523 U.S. 224, 228–32 (1998). And that precedent is still
binding law. United States v. Young, 847 F.3d 328, 369 (6th Cir. 2017). Thus, this claim is
foreclosed.

                                                 C.

       Finally, Moody claims that his past lawyers’ failure to raise each of these arguments was
ineffective assistance of counsel (both at trial and on appeal). To establish ineffective assistance,
Moody must show that failing to raise the earlier claims was both (1) objectively deficient and
(2) prejudicial. Strickland, 466 U.S. at 687. Of course, failing to raise wholly meritless claims is
neither deficient nor prejudicial. See Bennett v. Brewer, 940 F.3d 279, 286–87 (6th Cir. 2019);
Sutton v. Bell, 645 F.3d 752, 755 (6th Cir. 2011). Thus, given the weakness of his underlying
claims, reasonable jurists wouldn’t doubt that Moody’s Strickland claims fall as well.

       In fact, even if the underlying claims were a somewhat closer call, reasonable jurists still
would not doubt that the Strickland claims fail on deficiency (regardless of prejudice). The Sixth
Amendment “does not guarantee perfect representation” but only “reasonably competent”
representation. Harrington v. Richter, 562 U.S. 86, 110 (2011) (cleaned up). Thus, defense
lawyers need not (and in fact should not) raise every colorable argument they can find. See
Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (“Effective appellate counsel should not raise
every nonfrivolous argument[.]”); Wilson v. McMacken, 786 F.2d 216, 219 n.3 (6th Cir. 1986)
 No. 19-5015                        Moody v. United States                               Page 9


(trial counsel need not make “every colorable objection”). Tough judgment calls about what to
challenge and what to let slide are part of lawyering. Such decisions only become deficient—
that is, incompetent—when no reasonable counsel would have made the same choice at the time.
Strickland, 466 U.S. at 690. Here, even if Moody’s claims could be called colorable, there’s
simply no argument that they were so strong that every reasonable defense attorney would have
run with them. Thus, no reasonable jurist would dispute that Moody cannot show ineffective
assistance.

       This reasoning leads to an additional conclusion about the earlier claims. Remember,
those claims are procedurally defaulted because Moody did not raise them on appeal. To rescue
a claim from default, Moody needs to show (1) cause for not raising the claim on appeal and
(2) prejudice from the error alleged in the claim. See, e.g., Bousley v. United States, 523 U.S.
614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). And Moody can only show cause
by establishing his appellate counsel’s ineffectiveness. See Carrier, 477 U.S. at 488. Because
Moody can’t establish ineffectiveness, he plainly can’t show cause. Because he can’t show
cause, he plainly can’t save his non-Strickland claims from default. Thus, those claims are
barred independently of their failure on the merits. See, e.g., Benton v. Brewer, 942 F.3d 305,
307–08 (6th Cir. 2019). And remember, it only takes one rock-solid barrier to block an appeal.

       In the end, reasonable jurists would not question the district court’s denial of relief on
these claims. Accordingly, none of them should have been certified.

                                              IV.

       The next question is what to do about it now. There are two basic options: (1) vacate the
certificate as improvidently granted; or (2) simply decide the appeal on the merits, treating the
certificate as water under the bridge. See United States v. Marcello, 212 F.3d 1005, 1007–08
(7th Cir. 2000); see also Spencer v. United States, 773 F.3d 1132, 1137–38 (11th Cir. 2014)
(en banc); Phelps v. Alameda, 366 F.3d 722, 728 (9th Cir. 2004); Bradley v. Birkett, 156 F.
App’x 771, 773–75 (6th Cir. 2005) (collecting unpublished cases). Choosing between these
options is a matter of discretion. Marcello, 212 F.3d at 1007–08.
 No. 19-5015                          Moody v. United States                              Page 10


       What complicates the choice here is timing. Had the government moved to dismiss the
certificate before briefing, we could have (at the very least) remanded for the district court to
clarify and maybe rethink its analysis. See, e.g., Porterfield, 258 F.3d at 487. But that didn’t
happen and the case has now been fully briefed.                 In similar cases, this court has
repeatedly picked option two but used dicta to reemphasize the proper standards for a certificate.
See, e.g., Webb v. Mitchell, 586 F.3d 383, 400–01 (6th Cir. 2009); Frazier v. Huffman, 343 F.3d
780, 788–89 (6th Cir. 2003); White v. Kapture, 42 F. App’x 672, 673 (6th Cir. 2003); Channels
v. McLemore, 34 F. App’x 153, 154 (6th Cir. 2002). The thinking here is that “considerations of
judicial economy” tend to discourage post-briefing review of a certificate. Porterfield, 258 F.3d
at 485. Still, this court has vacated at least two certificates even after the briefs were in. See
Coleman v. Bergh, 804 F.3d 816, 819 (6th Cir. 2015); Dillard v. Burt, 194 F. App’x 365, 367–69
(6th Cir. 2006). For a few reasons, that’s the right choice here as well.

       After all, the standards for a certificate are no mere technicality. Quite the contrary.
By authorizing extra appeals, improper certificates add to the “profound societal costs” of habeas
litigation while sapping limited public resources. Calderon v. Thompson, 523 U.S. 538, 554
(1998) (quoting Smith v. Murray, 477 U.S. 527, 539 (1986)). For one, they divert our time and
attention from the cases Congress actually meant us to hear, often leading us to appoint counsel
and schedule argument in cases that we later find to be insubstantial. For another, they require
state and federal government attorneys to devote their time and attention to defending appeals
that should never have existed. Plus, they may even harm those habeas petitioners whose claims
really do merit an appeal because it could “prejudice the occasional meritorious [claim] to be
buried in a flood of worthless ones.” Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J.,
concurring). In short, it’s critical that courts follow the rules Congress set.

       Despite this, widespread neglect of those rules is a longstanding problem.             Many
certificates are still granted on claims that reasonable jurists simply would not find debatable and
for reasons that do not track the proper analysis. (Not considering procedural barriers is a
common mistake.) The certificate here is a perfect example of how this problem persists. Still,
the lack of any explanation for the certificate (or even a reference to the requirements) makes this
 No. 19-5015                                 Moody v. United States                                          Page 11


case particularly troubling. Given that (and given dicta’s proven failure to get this serious
problem under control), vacating this certificate is the least we can do.

          That the government did not move for dismissal doesn’t change this conclusion. To be
sure, the appropriate time to raise defects in the certificate is before briefing. But we have
discretion to excuse forfeitures and compelling reasons to do so here. Judicial economy will be
best served in the long run by faithfully applying the requirements for habeas appeals.
Cf. United States v. Baker, 807 F.2d 1315, 1321 (6th Cir. 1986) (recognizing that we may
consider forfeited issues to, among other things, “promote procedural efficiency” (cleaned up)).
Finally, vacating the certificate here won’t prejudice Moody.                          We have considered his
arguments, and if we did not dismiss the appeal we would simply affirm.3 In the end, the choice
is clear.

          We vacate the certificate of appealability as improvidently granted and dismiss the
appeal.




          3
           In saying this, we’re mindful of Buck’s and Miller-El’s instructions not to conflate the threshold certificate
inquiry with the final merits adjudication. See Buck, 137 S. Ct. at 774; Miller-El, 537 U.S. at 336–38. In each of
those cases, the circuit court had denied an initial application for a certificate and (in doing so) had improperly leapt
to a full merits analysis of claims over which it did not yet have jurisdiction. Buck, 137 S. Ct. at 774; Miller-El,
537 U.S. at 336–37. The posture here is different: Moody already received a certificate and his claims have
been fully briefed in this court. That gave us jurisdiction to examine his claims on the merits (unlike the Buck and
Miller-El courts). See Gonzalez v. Thaler, 565 U.S. 134, 143 (2012).
         When we did so, we concluded that the district court rightly denied relief. Separately, it became clear that
reasonable jurists would not doubt that conclusion (even on a threshold inquiry). These two conclusions, though
clearly related, are distinct. See Buck, 137 S. Ct. at 774. So distinct, in fact, that they support two different
dispositions: affirmance and dismissal. The question now is simply which disposition is more appropriate. For the
reasons given, the answer is dismissal.
