                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                   June 24, 2005
                                     TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                              No. 04-6341
 JOHN DAVID EASTERLING,                                 (D.C. Nos. 00-CR-80-A and
                                                              03-CV-1406-A)
        Defendant-Appellant.                                   (W. D. Okla.)




                                           ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Defendant John David Easterling seeks a certificate of appealability (COA) in

order to challenge the district court’s denial of his motion to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255. Because Easterling has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

deny his request and dismiss the appeal.

       On June 21, 2000, Easterling was indicted on one count of possessing a firearm

after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Easterling

moved to suppress the firearm that formed the basis of the § 922(g)(1) charge. That

motion was denied, and the case proceeded to trial, where Easterling was found guilty by

a jury as charged in the indictment. On May 9, 2001, Easterling was sentenced to a term
of imprisonment of 235 months. This court affirmed Easterling’s conviction and sentence

on direct appeal. United States v. Easterling, No. 01-6187, 2002 WL 568189 (10th Cir.

Apr. 17, 2002).

       On October 6, 2003, Easterling, proceeding pro se, filed a motion seeking to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Counsel was

subsequently appointed to represent Easterling. In his § 2255 motion, Easterling asserted

his trial counsel was ineffective for (1) failing to object to testimony that Easterling had

previously been in federal prison, (2) failing to object to a leading question asked of

witness Darryl Skaggs by the prosecution, (3) arguing his motion for judgment of

acquittal in the presence of the jury, (4) failing to ask for a jury instruction on the issue of

whether commerce had been affected by the firearm at issue, (5) failing to object to the

trial court’s “impromptu supplementation” of the jury instructions, (6) failing to

investigate potential mitigating factors that would have warranted a downward departure

at sentencing, (7) failing to conduct a proper investigation in support of the motion to

suppress evidence, and (8) failing to argue that the applicability of the Armed Career

Criminal Act (ACCA) must be alleged in the indictment and proven beyond a reasonable

doubt at trial. In addition to his claims of ineffective assistance, Easterling also argued

that (1) given the small amount of marijuana involved in his prior Oklahoma state

conviction for delivery of marijuana, application of the ACCA to his case was contrary to

congressional intent, and (2) § 922(g) was contrary to the Second Amendment and thus


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unconstitutional. Easterling subsequently added a claim challenging his sentence in light

of the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004).

       On August 24, 2004, the district court conducted an evidentiary hearing on

Easterling’s § 2255 motion. At the conclusion of the hearing, the district court ruled from

the bench and denied Easterling’s motion in its entirety. In doing so, the district court

addressed and rejected each of Easterling’s claims of ineffective assistance:

       1) The district court concluded that Easterling’s trial counsel failed to
       adequately inform Easterling of his right to testify prior to the suppression
       hearing, but concluded that Easterling was not prejudiced thereby because
       the result of the suppression hearing would have been the same even if
       Easterling had testified. More specifically, the district court concluded that
       Easterling’s testimony would have supported the district court’s earlier
       conclusion that Easterling lacked a reasonable expectation of privacy in the
       room where the firearm was found by law enforcement authorities.

       2) The district court concluded that trial counsel was not ineffective for
       failing to call Ron Hunter as a witness because Hunter lacked sufficient
       personal knowledge to testify about the arrangements Easterling had made
       with Skaggs and Merritt to live in the office. App. at 16.

       3) The district court concluded that trial counsel was not ineffective for
       failing to object to the introduction of evidence indicating that Easterling
       had previously been in federal prison. Id. at 17. In reaching this
       conclusion, the district court noted that “Easterling declined to stipulate
       about a prior conviction, satisfying one of the elements of the offense in
       question, so it was obligatory upon the government to introduce proof of
       that, and they did. And this is a totally self-inflicted wound on the part of
       Mr. Easterling, and no prejudice can flow from the government’s
       introducing evidence which is absolutely indispensable to complete the
       elements of the offense in question.” Id. Moreover, the district court noted
       that it “very emphatic[ally]” instructed the jury that it “could not draw any
       inference” from the prior conviction that “Mr. Easterling has some kind of
       generalized bad character” or that “it is more likely that he committed the
       offense in question.” Id.

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4) The district court concluded trial counsel was not ineffective for failing
to object to a leading question asked by the prosecutor. Id. at 18 (“if that
were a basis for granting relief, there isn’t a single civil or criminal case
I’ve ever presided over that could survive scrutiny.”).

5) As for trial counsel’s failure to argue the motion for judgment of
acquittal outside the presence of the jury, the district court concluded “there
couldn’t have been any prejudice” resulting therefrom because the motion
was argued at the bench outside the hearing of the jury and the arguments
were extremely brief. Id. at 19.

6) The district court concluded that trial counsel was not ineffective for
failing to object to the interstate commerce element of the district court’s
instruction on the § 922(g) charge. Id. More specifically, the district court
noted that it “gave a standard instruction” and would have overruled any
objection to that instruction. Id.

7) The district court concluded that trial counsel was not ineffective for
failing to object to the district court’s use of an example when it instructed
the jury on the nature of circumstantial evidence. Id. According to the
district court, “the instruction was entirely correct” and “the nature of the
instruction was beneficial to Mr. Easterling rather than damaging to him
because the government’s case was a circumstantial case.” Id.

8) As for Easterling’s assertion that his counsel was ineffective for failing
to investigate potential mitigating evidence in support of a motion for
downward departure, the district court noted that Easterling’s counsel had,
in fact, sought a downward departure at the time of sentencing and that
request had been denied. According to the district court:
        At the time of sentencing I didn’t engage in any downward
        departure, and I wouldn’t. And I said at the time that this was
        a matter of sentencing discretion, there’s absolutely nothing
        present in this case that would lead me to exercise any
        discretion and grant a downward departure. * * * I was a
        little bit surprised at sentencing to hear an argument for a
        downward departure when the argument simply could not
        have been well-taken, given the evidence in the case and the
        prior record.
Id. at 19-20.

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With respect to Easterling’s ACCA-related arguments, the district court concluded it was

clear, under the plain text of the ACCA, that his prior Oklahoma state conviction for

delivery of marijuana fell within the scope of the ACCA and qualified him for its

application. Id. at 20. The district court concluded there were “no Apprendi issues . . .

because what occurred in this case to elevate the sentence was an examination of prior

convictions, which according to Apprendi is perfectly proper for the Court, it’s not an

issue reserved for the jury.” Id. at 20-21. Lastly, the district court concluded the Supreme

Court’s decision in Blakely was not retroactive and thus did not apply in the context of

Easterling’s § 2255 motion. Id. at 21.

       Easterling subsequently sought a COA from the district court. The district court

denied that request. Easterling has now applied for a COA from this court. To be entitled

to a COA, Easterling must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This requires Easterling to 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).

       We find no basis for granting a COA with respect to Easterling’s ineffective

assistance claims. Specifically, we have reviewed the record on appeal, with particular

emphasis on Easterling’s § 2255 motion and the transcript of the district court’s bench


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ruling, and find no basis for concluding that reasonable jurists could debate whether

Easterling’s individual claims of ineffective assistance should have been resolved in a

different manner or that any of those claims were adequate to deserve appellate review.

       The same holds true for Easterling’s remaining claims. With respect to the district

court’s application of the ACCA, the record on appeal establishes that the Oklahoma

statute under which Easterling was convicted carried a maximum term of imprisonment

of ten years, and thus a violation of that statute qualified as a “serious drug offense” for

purposes of the ACCA. See 18 U.S.C. §924(e)(2)(A)(ii) (defining term “serious drug

offense,” as used in the ACCA). Further, the determination of whether a prior felony

constitutes a “serious drug offense” under the ACCA is a question of law and not fact,

and thus there is no requirement that the existence of such prior convictions be charged in

the indictment or proven to a jury under a beyond a reasonable doubt standard. See

United States v. Serrano, 406 F.3d 1208, 1220 (10th Cir. 2005). As for Easterling’s

Blakely arguments, it is clear that neither Blakely nor United States v. Booker, 125 S.Ct.

738 (2005), which Easterling cites in his application for a COA, announced a new rule of

constitutional law made retroactive by the Supreme Court on collateral review. E.g.,

United States v. Bellamy, No. 04-5145, 2005 WL 1406176, at *3 (10th Cir. June 16,

2005) (concluding “Booker does not apply retroactively to initial habeas petitions”);

United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005), (holding that “Blakely does

not apply retroactively to convictions that were already final at the time the [Supreme]


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Court decided Blakely, June 24, 2004.”). Finally, although the district court did not

expressly address in its bench ruling Easterling’s argument that § 922(g)(1) is facially

unconstitutional because it amends the Second Amendment without the required

ratification, we find no basis for granting a COA with respect to that claim. See United

States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000) (rejecting Second Amendment

challenge to § 922(g)(1)).

       The request for a COA is DENIED and the appeal is DISMISSED. Appellant’s

motion to proceed in forma pauperis is denied.



                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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