                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 2 2001
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                           Nos. 00-3202 & 00-3362
                                               (D.C. No. 00-CV-3053-MLB)
    STEVEN BLAIR SPEAL,                                  (D. Kan.)

              Defendant-Appellant.

    _______________________

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                      No. 00-3277
                                                  (D.C. No. 00-CV-3101)
    v.                                                   (D. Kan.)

    LATONIA EDNA BENSON,

              Defendant-Appellant.


                          ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.


                                  Appeal No. 00-3202

       In appeal No. 00-3202, Steven Blair Speal, a federal inmate appearing pro

se, seeks a certificate of appealability (COA) in order to appeal the district court’s

order dismissing his 28 U.S.C. § 2255 motion.        See 28 U.S.C. § 2253(c)(1)(B).

Because Speal has not “made a substantial showing of the denial of a

constitutional right,” we deny his request for a COA and dismiss this appeal.       Id.

§ 2253(c)(2).

       Speal was convicted of conspiracy to distribute a controlled substance in

violation of 21 U.S.C. § 846; possession with intent to distribute

methamphetamine and marijuana in violation of 21 U.S.C. § 841(a)(1); possession

of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1);

and two counts of possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

He was sentenced to life imprisonment without possibility of parole. The facts

surrounding Speal’s arrest and conviction are set forth in     United States v. Speal ,



                                            -2-
No. 97-3344, 1998 WL 886757 (10th Cir. Dec. 21, 1998) (unpublished), in which

this court affirmed his conviction and sentence on direct appeal.

      In his § 2255 motion, Speal claims ineffective assistance of counsel based

on counsel’s failure (1) to move for dismissal of firearms counts VI and VII on

the ground that they were multiplicitous of firearm Count V; (2) to move for

severance after the admission of statements made by his non-testifying co-

defendant, which he claims were hearsay in violation of     Lilly v. Virginia , 527

U.S. 116 (1999), and incriminated him in violation of     Bruton v. United States ,

391 U.S. 123 (1968); (3) to object to an allegedly factual mistake in the

prosecutor’s closing argument; (4) to raise on appeal a claim that there was

insufficient evidence to convict him; and (5) to claim that the prosecution failed

to meet its burden of proof because the jury was not required to make a finding

that his conduct affected interstate commerce.

      In a thorough order, the district court examined each of Speal’s claims and

concluded that he was not entitled to relief. This court has considered the

parties’ briefs, the district court’s order, and the entire appellate record. Our

review demonstrates that the issues Speal seeks to raise on appeal are not

debatable among jurists, deserving of further proceedings, or subject to a different

resolution on appeal.   See Slack v. McDaniel , 529 U.S. 473, 484 (2000). Only one

issue is even deserving of further comment: No doubt because Speal’s interstate


                                           -3-
commerce argument was vague and untethered to any facts, the district court did

not squarely address his assertion that an interstate commerce nexus is an

essential element of his § 841(a) convictions. Nevertheless, this contention is

without merit. This court has held that § 841(a)(1) is within Congress’s power to

regulate interstate commerce.      See United States v. Wacker , 72 F.3d 1453, 1475

(10th Cir. 1995). Accordingly, a conviction under § 841(a) does not require

individualized proof that the crime substantially affected interstate commerce.

See United States v. Lane , 883 F.2d 1484, 1492 (10th Cir. 1989) (“When

Congress enacts a statute under its commerce power, it is not constitutionally

obligated to require proof beyond a reasonable doubt that each individual act in

the class of activities regulated had an effect on interstate commerce”);     cf. United

States v. Janus Ind. , 48 F.3d 1548, 1556 (10th Cir. 1995) (noting that drug

trafficking laws under 21 U.S.C. §§ 801      et seq . require no finding of

individualized interstate commerce because these laws regulate a class of

intrastate activities that   per se affect interstate commerce).

       Additionally, Speal has raised for the first time on appeal claims arising

under Apprendi v. New Jersey , 530 U.S. 466 (2000), claiming that the drug

quantity in his § 841 charges were not sufficiently specified in the indictment nor

made an essential element of the charges in the jury instructions. This court has

not yet determined whether      Apprendi is retroactively available in an initial habeas


                                             -4-
motion. See Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001).

Similarly, we have not considered whether a failure to raise     Apprendi on direct

appeal bars habeas review under the rules governing procedural defaults.

However, because Speal did not raise any sort of challenge regarding drug

quantity in his habeas motion below, we decline to address it here.    See Smith v.

Sec’y of N.M. Dep’t of Corr. , 50 F.3d 801, 814 n. 22 (10th Cir. 1995) (noting that

in the absence of extraordinary circumstances this court will not consider issues

raised for the first time on appeal).

       Because Speal has not made a substantial showing of the denial of a

constitutional right, he is not entitled to a COA. Accordingly, this court DENIES

Speal’s request to proceed   in forma pauperis , DENIES his request for a COA, and

DISMISSES this appeal.


                                  Appeal No. 00-3362

       In his companion appeal No. 00-3362, Speal appeals the district court’s

denial of his motion to proceed    in forma pauperis in the appeal of his § 2255

motion. The district court concluded that Speal had failed to comply with the

requirements of 28 U.S.C. § 1915(a)(1) and (2) and it certified in writing that the

appeal was not taken in good faith.     See 28 U.S.C. § 1915(a)(3) and

Fed. R. App. 24(a)(3). Contrary to Speal’s contention, the district court did not

deny his in forma pauperis request under the Prison Litigation and Reform Act of

                                            -5-
1995. Because the district court applied the correct legal standards and we find

no error with its finding that Speal’s § 2255 appeal was not taken in good faith,

we affirm.


                                Appeal No. 00-3277

      In this related appeal, Speal’s co-defendant, Latonia E. Benson, a federal

inmate appearing pro se, also seeks a COA in order to appeal the district court’s

order dismissing her § 2255 motion. Benson was convicted of conspiracy to

distribute a controlled substance in violation of 21 U.S.C. § 846; and possession

with intent to distribute methamphetamine and marijuana in violation of 21

U.S.C. § 841(a)(1). Her conviction and sentence were affirmed in     United States

v. Benson , No. 97-3354, 1998 WL 886763 (10th Cir. Dec. 21, 1998)

(unpublished).

      In her § 2255 motion, she claims (1) that her trial counsel was ineffective

because he failed (a) to move for suppression of her post-arrest statements on the

grounds that she had requested an attorney; and (b) to object when the district

courts considered her failure to testify at sentencing when it denied her request

for a “minor participant” sentence reduction under U.S. Sentencing Guidelines

Manual § 3B1.2; (2) that her appellate counsel was ineffective for failing to raise

these ineffective assistance claims on direct appeal; and (3) that the prosecution

failed to sustain its burden of proof because the jury instructions did not require

                                          -6-
the jury to find an interstate commerce nexus as an essential element of the

§ 841(a) charges against her.

       Again, the district court addressed and rejected each of Benson’s arguments

in a thorough order. While it did not squarely address Benson’s interstate

commerce claim, we have already explained above why this issue is without

merit. It is also worth noting that, with respect to Benson’s claim regarding to

her refusal to testify at sentencing in support of her requested sentence reduction,

the district court correctly anticipated this court’s recent holding in    United States

v. Constantine , No. 00-2115, 2001 WL 909010 (10th Cir. Aug. 13, 2001). In that

case, this court held that the sentencing court’s denial of a requested downward

departure based on the defendant’s failure to carry his burden of proof as a

consequence of his silence at sentencing is not a violation of the defendant’s Fifth

Amendment right to remain silent under        Mitchell v. United States , 526 U.S. 314

(1999). Id. at *5.

       As did her co-defendant, Benson also raises        Apprendi claims for the first

time on appeal, asserting that the drug quantities in the § 841 charges against her

were not sufficiently specified in the indictment or jury instructions. For the

same reasons set forth in our resolution of Speal’s appeal No. 00-3202, we

decline to address these claims because Benson did not raise any sort of challenge

regarding drug quantity in her habeas motion.        See Smith , 50 F.3d at 814 n. 22.


                                              -7-
       Upon review of the record and the parties’ briefs, this court finds that the

issues Benson seeks to raise on appeal are not debatable among jurists, deserving

of further proceedings, or subject to a different resolution on appeal.    See Slack ,

529 U.S. at 484. Accordingly, this court DENIES Benson’s request to proceed          in

forma pauperis , DENIES her request for a COA, and DISMISSES this appeal.



                                                         Entered for the Court



                                                         Wade Brorby
                                                         Senior Circuit Judge




                                             -8-
