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

                                    TENTH CIRCUIT                           March 25, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                          No. 13-3271
                                                  (D.C. Nos. 6:13-CV-01228-MLB &
 SULE BRAIMAH,                                           6:12-CR-10008-001)
                                                               (D. Kan.)
           Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Sule Braimah, a federal prisoner proceeding pro se, requests a certificate of

appealability (“COA”) regarding the denials of several motions seeking reconsideration

and amendment of his 28 U.S.C. § 2255 petition. We deny a COA and dismiss the

appeal.

                                             I

       Braimah was charged with five counts of tax evasion (for tax years 2005-2009) in


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
the U.S. District Court for the District of Kansas. Pursuant to a written plea agreement,

he pled guilty to Count III of the indictment and agreed to pay $188,097.00 in restitution.

On January 28, 2013, the district court sentenced Braimah to eighteen months’

imprisonment and three years of supervised release, and ordered him to pay the

restitution and a fine. He did not file a direct appeal.

       On June 10, 2013, Braimah filed a pro se § 2255 motion asserting that his defense

counsel was ineffective for failing to: (1) object to the inclusion of 2004 tax liability as

relevant conduct in the Presentence Investigation Report’s calculations; (2) argue that his

“voluntary” payment of restitution merited a downward departure or variance; and

(3) present character evidence at the sentencing hearing. After it received the

government’s response but no reply brief from Braimah, the district court denied the

§ 2255 motion because Braimah’s counsel had made all the arguments Braimah claimed

were omitted. Braimah notified the court that he had failed to submit a reply because he

had not received the government’s response, and the court entered an order allowing him

to file a reply out of time.

       Rather than filing a reply, Braimah submitted a motion for reconsideration and a

motion to amend his original § 2255 petition, along with a proposed amended petition, on

September 23, 2013. He admitted that his original petition was frivolous and sought to

add a claim that his counsel was ineffective for failing to present to the Secretary of the

Treasury an offer in compromise under 26 U.S.C. § 7122 as an alternative to


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incarceration. Braimah argued that he would have amended his petition before judgment

was entered if he had received the government’s response. He therefore requested that

the court vacate its judgment and consider his additional claim. The district court

construed Braimah’s request as a second or successive § 2255 petition because judgment

had already been entered on his original petition, and concluded that it lacked jurisdiction

to consider his motions.

       In response, Braimah filed a motion for “further action after nonjury trial”

pursuant to Fed. R. Civ. P. 59(a)(2), requesting that the court reopen its judgment and

allow him to litigate his amended § 2255 petition. The district court again concluded it

was without jurisdiction. Braimah proceeded to file an application for a COA from the

district court, which was denied. The district court reiterated its conclusion that Braimah

was attempting to pursue a second or successive § 2255 motion and thus required

authorization from the Tenth Circuit. Braimah now seeks a COA from this court.

                                             II

       Braimah must obtain a COA to pursue an appeal. United States v. Baker, 718

F.3d 1204, 1206 (10th Cir. 2013).1 To satisfy this standard, the applicant must show


       1
         We suspect, but need not decide, that Braimah’s filings subsequent to his original
§ 2255 petition were not second or successive petitions. See United States v. Cleaver,
319 F. App’x 728, 729 (10th Cir. 2009) (unpublished) (Fed. R. Civ. P. 60(b) motion
based on government’s failure to serve response on petitioner and subsequent denial of
opportunity to file reply is a “true” Rule 60(b) motion). Regardless, Braimah would
require a COA to proceed. 28 U.S.C. § 2253(c)(1)(B).


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“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 omitted). When the district court denies a habeas petition on

procedural grounds, the petitioner must demonstrate both “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and . . . whether the district court was correct in its procedural ruling.” Id. Because

Braimah is proceeding pro se, we construe his filings liberally. Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam).

       Braimah has failed to demonstrate that a COA is warranted. A defendant is not

entitled to relief from the denial of a § 2255 petition based on the government’s failure to

serve him with its response unless he can demonstrate that he was prejudiced by that

failure. See United States v. Luke-Sanchez, 327 F. App’x 774, 776 (10th Cir. 2009)

(unpublished). Braimah argues that if he had been served with the response, he could

have moved for leave to amend his original § 2255 petition before judgment was entered.

But he fails to show that denial of the opportunity to amend his petition prejudiced the

outcome of his case.

       Braimah would amend by adding a claim that his attorney was ineffective for

failing to pursue a compromise with the Secretary of the Treasury pursuant to 26 U.S.C.

§ 7122. He argues that such a compromise would have allowed him to settle his tax debt


                                             -4-
and possibly avoid incarceration. The statute Braimah references provides, in relevant

part:

        The Secretary [of the Treasury] may compromise any civil or criminal case
        arising under the internal revenue laws prior to reference to the Department
        of Justice for prosecution or defense; and the Attorney General or his
        delegate may compromise any such case after reference to the Department
        of Justice for prosecution or defense.

§ 7122(a). Braimah asserts that his attorney should have pursued a compromise with the

Secretary of the Treasury either before or after charges were filed against him by the

Department of Justice. But Braimah was not entitled to an attorney before he was

indicted. See, e.g., Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994) (“The Sixth

Amendment right to counsel does not attach until the initiation of formal adversary

criminal proceedings whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” (quotation omitted)). Thus, he cannot assert an ineffective

assistance claim based on actions he believes his attorney should have taken before his

indictment. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (to demonstrate

ineffective assistance of counsel, defendant must show “that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”).

        Moreover, according to the text of § 7122(a), the Secretary of the Treasury only

has authority to negotiate a compromise until a case is referred for criminal prosecution.

See In re Grand Jury, 619 F.2d 1022, 1027 (3d Cir. 1980) (“After a reference from the

Treasury Department, the discretionary power to compromise is vested in the Attorney


                                            -5-
General . . . .” (citing § 7122(a))). Even liberally construing Braimah’s claim to assert

that his attorney should have negotiated with the Attorney General post-indictment, as

permitted by § 7122(a), we see no basis to conclude that such discretionary negotiations

would have secured a more favorable arrangement for Braimah than the plea agreement

he obtained through his counsel’s negotiations with a representative of the Attorney

General. See United States v. Hilario, 218 F.3d 19, 22 (1st Cir. 2000) (Assistant United

States Attorneys “are appointed directly by the Attorney General” and “their ability to act

. . . derives from the Attorney General’s plenary power over litigation to which the

United States is a party”).

                                            III

       We DENY Braimah’s request for a COA and DISMISS the appeal. Braimah’s

motions to proceed in forma pauperis on appeal are GRANTED.



                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge




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