                                                                                   FILED
                                                                       United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                     TENTH CIRCUIT                             May 12, 2017

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                             No. 17-4011
v.                                                (D.C. Nos. 2:15-CV-00659-TC and
                                                        2:11-CR-00579-TC-1)
PETER ANTONIO TUBENS,                                         (D. Utah)

             Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.


      On June 7, 2011, Peter Antonio Tubens was traveling on a Greyhound bus when it

stopped at a truck stop for a scheduled passenger break. During the stop, two Utah

Highway Patrol agents, with the help of their drug dogs, discovered several pounds of

methamphetamine in Tubens’ carry-on luggage.1 He was arrested, but released from

custody. The next month, Tubens and his then-attorney met with an FBI agent in

Philadelphia where Tubens lived. He admitted to having traveled to Las Vegas, Nevada,

and receiving methamphetamine from his father-in-law’s former drug source. He was



      1
        For a full account of the search, see United States v. Tubens, 765 F.3d 1251 (10th
Cir. 2014).
returning to Philadelphia via bus when caught.

       He was indicted with possession with intent to distribute 50 grams or more of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Upon conviction he was

sentenced to 20 years imprisonment, the mandatory minimum.2 We affirmed on direct

appeal. See United States v. Tubens, 765 F.3d 1251 (10th Cir. 2014).

       He filed a pro se 28 U.S.C. § 2255 motion,3 claiming his trial counsel was

ineffective for three reasons: (1) counsel failed to sufficiently advise him concerning the

benefits of pleading guilty and the consequences of his prior convictions; (2) counsel

should have negotiated a lower sentence in light of a memorandum issued by then-

Attorney General Eric Holder (the Holder memorandum) which directed prosecutors not

to charge the quantity of drugs needed to trigger mandatory minimum sentences if the


       2
         The mandatory minimum sentence for Tubens’ offense is 10 years. See 21
U.S.C. § 841(b)(1)(A). However, the mandatory minimum is increased to 20 years if the
defendant has a prior conviction for a felony drug offense and to life imprisonment if he
has two or more such convictions. Id. Prior to trial, the government claimed Tubens had
two prior felony drug offenses—one from the State of New Jersey and the other from the
Southern District of Texas—exposing him to a life sentence. The presentence report
agreed. Tubens objected, arguing his two prior felony drug convictions involved the
same conduct, which was prosecuted by both the State of New Jersey and the federal
government. See United States v. Beckstrom, 647 F.3d 1012, 1017-18 (10th Cir. 2011)
(stating two prior felony drug offense convictions must arise from separate “criminal
episodes” in order to be used to increase the mandatory minimum under § 841(b)(1)(A);
prior convictions arise from separate criminal episodes if, among other things, the second
conviction arises “from a criminal act distinct from the acts supporting the first
conviction”). As a result, he argued he had only one prior felony drug offense
conviction, subjecting him to a mandatory minimum sentence of 20 years. The
government agreed because it could not confirm that the convictions involved different
conduct.
       3
        We have liberally construed his pro se pleadings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

                                            -2-
defendant satisfied certain criteria; and (3) counsel was deficient for not interviewing and

investigating other bus passengers and failing to challenge the methamphetamine’s purity

or the government’s failure to provide a chemist as a witness on purity so he could cross-

examine him.4 The judge denied the motion.

       She decided the first claim was belied by the record. Counsel informed her prior

to trial that Tubens had rejected a potential plea offer of 20 years.5 Moreover, both

Tubens’ lead counsel and his local counsel submitted affidavits saying they were

concerned about a potential life sentence due to his prior convictions and informed him

multiple times of the benefits of entering a negotiated plea. He insisted on going to trial.

In the alternative, the judge concluded he could not show prejudice because the potential

plea offer was 20 years, the sentence he received. See Lafler v. Cooper, 566 U.S. 156,

164 (2012) (when a defendant rejects a plea offer based on counsel’s faulty advice, he

must show, inter alia, that the “sentence . . . under the offer’s terms would have been less

severe than under the . . . sentence that in fact [was] imposed” to establish he was

prejudiced by the faulty advice) (emphasis added).

       With regard to counsel’s failure to use the Holder memorandum, the judge decided

counsel’s representation did not “f[a]ll below an objective standard of reasonableness”

       4
        Tubens amended his § 2255 motion to raise two additional ineffective assistance
of counsel claims—counsel should have (1) contested the searching officer’s failure to
advise him of his Miranda rights and (2) challenged the use of one of his prior felony
drug offense convictions as too old. The judge denied both claims. We need not address
them because he does not raise them in his application for a certificate of appealability.
       5
        The prosecutor informed Tubens and his counsel that she was considering a 20-
year plea offer but had not yet received official approval to make the offer. She never
pursued approval, however, because Tubens rejected the offer.

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because the memorandum was not issued until four days after Tubens’ sentencing. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (“When a convicted defendant

complains of the ineffectiveness of counsel’s assistance, the defendant must show that

counsel’s representation fell below an objective standard of reasonableness.”).

       Finally, on the last claim, the judge decided Tubens could not show prejudice. He

provided no evidence suggesting the result of the proceeding would have been different

had counsel performed these tasks, especially in light of his admission of guilt to the FBI

agent in Philadelphia. Id. at 695 (to establish prejudice, a “defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different”).

       Tubens wants to appeal from the denial of his § 2255 motion,6 but he did not

request a certificate of appealability (COA) from the district judge. He seeks one from

this Court.

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

       6
         The judge entered judgment on November 28, 2016. Tubens had 60 days or until
January 27, 2017, to file his notice of appeal. See Fed. R. Civ. P. 4(a)(1)(B)(i) (stating a
notice of appeal in a civil case must be filed within 60 days of entry of judgment if the
United States is a party). He did not file his notice of appeal until January 30, 2017.
However, the envelope containing the notice of appeal is postmarked January 27, 2017,
and contains the appropriate postage. Under the recent amendments to the prison
mailbox rule, see Fed. R. App. P. 4(c)(1)(A)(ii), this is sufficient to confer jurisdiction
over this putative appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely
filing of a notice of appeal in a civil case is a jurisdictional requirement.”).



                                             -4-
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Tubens must 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.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quotation marks omitted). He has not met his burden.

       With one exception, he reiterates verbatim the arguments raised in his § 2255

motion. He makes no attempt to show how the judge erred in deciding his claims. He

simply says the government did not respond to and the judge did not decide all of his

claims. That is simply not true. Although they discussed some of his claims together, the

government addressed and the judge resolved all of them. And, for the reasons given by

the judge, no reasonable jurist could debate the propriety of the denial of these claims.

       The one exception is a new argument in his COA application. He says counsel

was ineffective for failing to insist upon the government proving his prior felony drug

conviction beyond a reasonable doubt. He relies on Alleyne v. United States, where the

Supreme Court held the Sixth Amendment requires any fact increasing a mandatory

minimum sentence to be submitted to a jury. --- U.S. ---, 133 S. Ct. 2151, 2155 (2013).

       We normally do not consider claims raised for the first time in a COA application.

See United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012); see also Singleton v.

Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal appellate court

does not consider an issue not passed upon below.”). However, the proper resolution of

his Alleyne claim is clear. Singleton, 428 U.S. at 121 (an issue may be resolved for the

first time on appeal “where the proper resolution is beyond any doubt”). In Almendarez-

                                             -5-
Torres v. United States, the Supreme Court held the fact of a prior conviction need not be

submitted to a jury and proved beyond a reasonable doubt to serve as the basis for

enhancing a defendant’s sentence. 523 U.S. 224, 226-27 (1998). In Alleyne, the

Supreme Court explicitly declined to revisit Almendarez-Torres. 133 S. Ct. at 2160 n.1;

see also United States v. Ridens, 792 F.3d 1270, 1274 (10th Cir.) (recognizing that

Almendarez–Torres survived Alleyne), cert. denied, 136 S. Ct. 494 (2015). The use of

Tubens’ prior conviction to increase the mandatory minimum sentence from 10 years to

20 years did not violate the Sixth Amendment.

       We DENY the request for a COA and DISMISS this matter.

       The district judge denied Tubens’ request to proceed on appeal without

prepayment of fees (in forma pauperis or ifp).7 He has renewed his ifp request with this



       7
         The payment of filing and docketing fees is required in nearly all appeals,
criminal as well as civil. See 18 U.S.C. §§ 1913, 1917. However, there is an important
exception; we excuse prepayment of fees so there is no forfeiture of potentially
meritorious appeals because of a person’s impecunious circumstances. Frivolous appeals
are not among those so excused because, by definition, they are not potentially
meritorious. Neitzke v. Williams, 490 U.S. 319, 324 (1989) (Congress enacted § 1915(a)
“to ensure that indigent litigants have meaningful access to the federal courts”; however,
at the same time it recognized “a litigant whose filing fees and court costs are assumed by
the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits”); see also DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991) (to proceed ifp on appeal, “an appellant must show a financial
inability to pay the required filing fees and the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.) (emphasis
added).
        We take notice when a district judge certifies that the appeal “is not taken in good
faith” (i.e., is frivolous). 28 U.S.C. § 1915(a)(3). In this case, the judge did not make the
good faith finding. Instead, she denied Tubens’ ifp motion on procedural grounds—he
had not requested a COA under 28 U.S.C. § 2253(c). A formal COA request should have
been filed with the district court, but Tubens did file a notice of appeal, which constitutes

                                            -6-
Court. Since we have fully addressed his COA application, his request to proceed ifp on

appeal is DENIED AS MOOT. The relevant statute, 28 U.S.C. § 1915(a), does not

permit litigants to avoid payment of fees; only prepayment of fees is excused.8 Because

we have reached the merits in this matter, prepayment of fees is no longer an issue. All

filing and docketing fees ($505.00) are due and payable to the Clerk of the District Court.




                                          Entered by the Court:


                                          Terrence L. O’Brien
                                          United States Circuit Judge




a request for a COA under our local rules. See 10th Cir. R. 22.1(A).
       8
          See 28 U.S.C. § 1915(a) (allowing courts to authorize the commencement of a
civil or criminal suit or appeal “without prepayment of fees or security thereof”)
(emphasis added). Even those with appointed counsel under the Criminal Justice Act
(CJA) are not excused from paying filing and docketing fees. See 28 U.S.C. §
3006A(d)(7) (allowing a criminal defendant who has CJA appointed counsel to appeal
“without prepayment of fees and costs or security therefor”) (emphasis added).



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