                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 November 29, 2013
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 CARLLOWS BATTLE,

                 Petitioner-Appellant,                     No. 13-2168
          v.                                (D.C. No. 1:12-CV-00972-MCA-SMV)
 STATE OF NEW MEXICO,                                      (D. of N.M.)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges. **



      Carllows Battle seeks a certificate of appealability (COA) to appeal the

district court’s denial of his motion to vacate, set aside, or correct his sentence.

Exercising jurisdiction under 28 U.S.C. § 1291, we DENY the application for a

COA and DISMISS the appeal.




      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Represented by retained counsel, Battle pleaded no contest in New Mexico

state court to a 2006 charge of conspiracy to possess marijuana with intent to

distribute. He received a suspended sentence of eighteen months, which he has

since served. He did not file a direct appeal. In 2008, Battle pleaded guilty in the

Central District of Illinois to two drug charges and a firearms charge. The federal

court sentenced him to 160 months imprisonment, six years supervised release,

and a $300 penalty.

      Alleging that the New Mexico conviction resulted in a significantly

increased sentence for his federal offenses, Battle attempted to collaterally attack

that conviction in state court, but the court denied his petition for relief in 2011.

He then filed this habeas petition, asking the federal court to overturn the New

Mexico conviction.

                                  II. Analysis

      The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a

petitioner to obtain a COA before he can appeal denial of a § 2254 motion. 28

U.S.C. § 2253(c)(1)(A). A COA requires the applicant to make a “substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

      Here, Battle argues his constitutional rights were denied because (1) he is

actually innocent, (2) he received ineffective assistance of counsel and was

constructively denied counsel, and (3) his plea was coerced. Before we can

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address the merits of those claims, however, we must determine whether the New

Mexico conviction, which Battle chose not to directly appeal, is still open to

collateral attack.

      In Lackawanna Cnty. Dist. Attorney v. Coss, the U.S. Supreme Court held,

“if a prior conviction used to enhance a federal sentence is no longer open to

direct or collateral attack in its own right because the defendant failed to pursue

those remedies while they were available (or because the defendant did so

unsuccessfully), then that defendant may not collaterally attack his prior

conviction” through a motion under § 2254. 532 U.S. 394, 402 (2001) (internal

quotation marks omitted).

       Battle apparently concedes that, if he does not qualify for an exception,

Lackawanna applies to his case. The only exceptions to Lackawanna’s general

rule “exist when: 1) counsel is not appointed in violation of the Sixth

Amendment; or 2) no channel of review is available through no fault of the

petitioner.” Davis v. Roberts, 425 F.3d 830, 835 (10th Cir. 2005).

      We construe Battle’s filing liberally because he is a pro se defendant, Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and, in that context, we

interpret Battle’s argument on appeal to urge this court to create one of two new

exceptions to the Lackawanna rule.

      First, Battle contends that, since actual innocence claims can overcome

other procedural bars to habeas review, see, e.g., McQuiggin v. Perkins, 133 S.

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Ct. 1924, 1932 (2013) (establishing that, if a certain burden is met, actual

innocence claims may overcome procedural default and AEDPA’s statute of

limitations), actual innocence claims should overcome the Lackawanna bar.

      But, even if this court were to extend the Court’s holding in McQuiggin in

this way, Battle cannot satisfy the McQuiggin exception’s very high burden. “A

petitioner does not meet the threshold requirement unless he persuades the district

court that, in light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Id. at 1928 (internal

quotation marks omitted) (emphasis added). Here, Battle concedes that he does

not have new evidence to present to the court.

      Still, Battle argues that the McQuiggin rule should apply equally to cases in

which the alleged evidence of actual innocence was presented at trial. Battle has

failed to identify existing law supporting his proposition, and, further, even if this

court were willing to create the exception to the Lackawanna rule that Battle

suggests, Battle would not qualify for it. Because he entered into a plea, he did

not present any evidence of his innocence at trial. Instead, he made a strategic

decision not to go to trial and is bound by it.

      Second, Battle contends that, because his attorney allegedly failed to advise

him that pleading guilty to the New Mexico offense could affect sentencing for

later offenses, he was constructively denied counsel. He argues that this




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constructive denial of counsel claim should allow him to bypass Lackawanna’s

barrier.

      Although he recognizes that an ineffective assistance claim does not create

an exception to Lackawanna, Davis, 425 F.3d at 835, Battle argues that a

constructive denial of counsel claim should be treated differently. Before the

district court, he argued constructive denial of counsel was analogous to

situations in which courts fail to appoint counsel to represent an indigent

defendant in violation of the Sixth Amendment. On appeal, however, he contends

that constructive denial of counsel claims are enough like the other exception to

Lackawanna―when no channel of review was available through no fault of the

petitioner―that we should extend that exception to permit Battle to go forward.

      We cannot conclude, however, that a standard plea process, in which the

only arguable misstep was counsel’s failure to advise Battle about his plea’s

impact on future sentences, came anywhere near denying Battle of any channel of

review. Battle understood that, by entering a plea, he waived his right to a trial,

where a trial otherwise would have been available to him.

      Furthermore, even if Battle’s counsel did make this misstep, it does not

constitute a constructive denial of counsel. See United States v. Collins, 430 F.3d

1260, 1265 (10th Cir. 2005) (holding that constructive denial of counsel exists

only when counsel “entirely fails to subject the prosecution’s case to meaningful

adversarial testing” such that “the evidence overwhelmingly established that the

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attorney abandoned the required duty of loyalty to his client, and where counsel

acted with reckless disregard for his client’s best interests and, at times,

apparently with the intention to weaken his client’s case”) (internal quotation

marks omitted).

                                  III. Conclusion

      Because Battle’s case is not subject to the exceptions recognized in

Lackawanna and neither of Battle’s proposed exceptions is otherwise grounded in

the law, we conclude that Battle’s § 2254 petition is barred. Thus, we DENY his

request for a COA and DISMISS the appeal.


                                        ENTERED FOR THE COURT

                                        Timothy M. Tymkovich
                                        Circuit Judge




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