                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          May 24, 2016
                                    TENTH CIRCUIT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                            No. 15-5124
                                                 (D.C. Nos. 4:14-CV-00565-JHP-PJC and
 RICHARD CLARK,                                          4:09-CR-00013-JHP-2)
                                                               (N. D. Okla.)
           Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, GORSUCH and McHUGH, Circuit Judges.


       Richard Clark, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence. Because Clark has failed to

satisfy the standards for the issuance of a COA, we deny his request and dismiss the

matter. We also deny his request to proceed in forma pauperis on appeal.

                                             I

       A grand jury indicted Clark on one count of conspiracy, eight counts of wire fraud,

four counts of securities fraud, and five counts of money laundering. Prior to his


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
indictment, the government placed a caveat on his residence. Clark’s attorney, Allen

Smallwood, as well as two additional attorneys that worked with Smallwood, represented

Clark during the early stages of this case. Clark attempted to use the equity in his

residence to pay attorneys’ fees. When these efforts failed, all three attorneys sought to

withdraw. The district court denied Smallwood’s request, but permitted his colleagues to

withdraw. Smallwood represented Clark throughout trial and did so in what a prior panel

of this court described as “a thorough and vigorous fashion.” United States v. Clark, 717

F.3d 790, 796 (10th Cir. 2013) (quoting United States v. Gordon, 710 F.3d 1124, 1139

(10th Cir. 2013)) (Clark’s direct appeal).

       Clark was convicted on fourteen of the twenty-one counts charged. His conviction

and sentence were affirmed. Id. He subsequently filed a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence, which was denied by the district court. On July

17, 2015, Clark filed a notice of appeal and a request for a COA. The district court

denied Clark’s request for a COA. Clark has now filed an application for a COA from

this court.

                                              II

       Issuance of a COA is jurisdictional: the denial of a § 2255 motion may be appealed

only if the district court or this court first issues a COA. Miller-El v. Cockrell, 537 U.S.

322, 335–36 (2003) (citing 28 U.S.C. § 2253(c)(1)). We may issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

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

                                              2
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.’” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

                                              III

       Clark argues that Smallwood provided ineffective assistance of counsel in

“fail[ing] to file a formal motion for return on the property illegally seized.” Motion for

COA at 13. Even assuming that the caveat placed on Clark’s property constituted an

illegal seizure (a point we need not address), Clark’s claim fails for the reasons relied

upon by the district court. The Supreme Court has made clear that “where there is no

constitutional right to counsel there can be no deprivation of effective assistance.”

Coleman v. Thompson, 501 U.S. 722, 752 (1991). We have held that “[t]he Sixth

Amendment’s right to counsel is . . . limited to the risk of loss of liberty” and therefore

does not extend to civil forfeiture proceedings. United States v. Deninno, 103 F.3d 82, 86

(10th Cir. 1996) (emphasis added) (citing Scott v. Illinois, 440 U.S. 367, 373 (1979),

which “adopt[ed] ‘actual imprisonment’ as the line defining the constitutional right to

appointment of counsel). Other circuits have reached similar holdings. See United States

v. Saccoccia, 564 F.3d 502, 505 (1st Cir. 2009); United States v. 87 Blackheath Rd., 201

F.3d 98, 99 (2d Cir. 2000)1; United States v. Real Prop. Known & Numbered as 415 E.

       1
        The Second Circuit has since recognized that the Civil Asset Forfeiture Reform
Act of 2000 created a statutory right to counsel in civil forfeiture actions involving one’s
home, but further recognized that CAFRA did nothing to alter the protections afforded by

                                              3
Mitchell Ave. Cincinnati, Ohio, 149 F.3d 472, 475 n.1 (6th Cir. 1998); United States v.

$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995); United States v. 7108

W. Grand Ave., Chicago, Ill., 15 F.3d 632, 635 (7th Cir. 1994).

       A caveat is “a notice, usually in the form of an entry in a register, to the effect that

no action of a certain kind . . . may be taken without first informing the person who gave

the notice.” Bryan A. Garner, A Dictionary of Modern Legal Usage 143 (3d ed. 2011).

The caveat at issue here merely gave notice that “[t]he United States . . . claims an interest

in and to [Clark’s residence] for the reason that the property may be subject to forfeiture

to the United States.” Exhibit 1 to Motion for COA. We do not believe that a reasonable

jurist could conclude that mere notice triggers greater Sixth Amendment rights than

actual forfeiture does. Accordingly, reasonable jurists could not disagree with the district

court’s conclusion that Clark had no right to have counsel assist him in disputing the

government’s placement of a caveat on his residence.

       Pursuant to Federal Rule of Appellate Procedure 28(j), Clark has provided this

court with a recent Supreme Court decision, United States v. Luis, 136 S. Ct. 1083

(2016), which he claims warrants a different outcome. We disagree. In Luis, the

Supreme Court held that the government violated the petitioner’s Sixth Amendment right

to have counsel of choice by freezing indisputably “untainted funds, i.e., funds not

connected with the crime” before trial. Id. at 1087–88 (majority), 1096 (Thomas, J.,


the Sixth Amendment. United States v. 777 Green Avenue, 609 F.3d 94, 97–98 (2d Cir.
2010). Because we review Clark’s constitutional rights, we need not address this
modification.

                                               4
concurring). Thus, Luis considered whether the government’s actions violated Luis’s

Sixth Amendment right to counsel of choice. Here, in contrast, the district court

considered whether Smallwood’s actions violated Clark’s Sixth Amendment right to

effective assistance of counsel. Although Clark’s § 2255 motion claims that Smallwood’s

alleged ineffective assistance resulted in Clark being unable to obtain counsel of choice, it

does not directly assert a choice-of-counsel claim. See District Court Docket No. 513.

Thus, Luis has no bearing on Clark’s motion to vacate. Moreover, we need not consider

whether and to what extent Luis would affect a choice-of-counsel claim brought by Clark

because he did not raise that issue before the district court. See United States v. Viera,

674 F.3d 1214, 1220 (10th Cir. 2012) (adhering “to our general rule against considering

issues for the first time on appeal”).

       Clark also appears to argue that the caveat placed on his residence violated his

Fifth Amendment Due Process rights. This argument was raised and rejected on direct

appeal, Clark, 717 F.3d at 799–803, and therefore cannot be considered on a § 2255

collateral attack absent an intervening change of law, United States v. Prichard, 875 F.3d

789, 791 (10th Cir. 1989), which Clark has not offered us here.

       Because Clark has not offered any “reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal,” his request to proceed in forma

pauperis is denied. See United States v. Silvia, 430 F.3d 1096, 1100 (10th Cir. 2005)

(quoting McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812–13 (10th Cir.

1997)).

                                              5
                                            IV

      The application for a Certificate of Appealability is DENIED. The motion to

proceed in forma pauperis is also DENIED.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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