                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 9 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-3268
 v.
                                               (D.C. No. 97-10114-01-MLB)
                                                         (D. Kan.)
 TERRENCE M. BROWN,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK and EBEL, Circuit Judges.


      Defendant-Appellant Terrence M. Brown (“Brown”) filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. §2255 (“Petition”), challenging the

validity of his conviction on one count of inducing or enticing a minor to engage

in sexually explicit conduct in violation of 18 U.S.C. §2251. Although he pled



      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
guilty to this charge (in exchange for the government dismissing the only other

count in the indictment), Brown argued in his Petition that his conviction violated

the First Amendment, that the federal trial court lacked jurisdiction to hear the

case, that he received ineffective assistance of counsel in regard to his decision to

plead guilty, and that the United States Sentencing Guidelines (“USSG”) were

inappropriately applied in his case. 1 (See Doc. 63.)

      The district court denied the Petition without holding an evidentiary

hearing. (See Doc. 68.) The district court first rejected Brown’s jurisdictional

claim, which was apparently based upon the idea that his actions did not comport

with the elements of the offense to which he pled guilty, an assertion that was in

direct contradiction to a prior sworn statement made by Brown. In so doing, the

district court stated that “[t]here is no question that this court had jurisdiction to

take defendant’s plea and to impose sentence.” (See Doc. 68 at 2.) The court

rejected Brown’s First Amendment claim, as well, noting that there is no First

Amendment protection afforded to solicitations to commit crime. 2 (See id. at 3.)

      1
         Brown also filed a direct appeal to this court, arguing that he was entitled
to two three-level reductions in his base offense level under the USSG because
his offense was never completed, but was instead merely an attempt to solicit.
See United States v. Brown, No. 98-3164, 1999 WL 3369 (10th Cir. Jan. 6, 1999)
(unpublished opinion). We affirmed Brown’s conviction.
      2
        The district court noted that the jurisdictional and First Amendment
issues were not raised on direct appeal. Because 28 U.S.C. §2255 relief is
generally not available on issues which should have been raised on direct appeal
                                                                      (continued...)

                                          -2-
In regard to Brown’s argument regarding sentencing, the district court found that

Brown’s arguments were foreclosed by this court’s prior ruling on that very issue

on direct appeal. (See id. at 6.) Finally, the district court rejected Brown’s

argument that his counsel was constitutionally ineffective. The court

acknowledged Brown’s argument that his counsel led him to believe he would be

subject to a 30-year maximum sentence if he went to trial, but would be subject to

only a 10-year maximum sentence if he pled guilty, due to an increase in the

statutory sentencing range that had gone into effect on September 30, 1996. Such

a statement, had it occurred, would have been an erroneous statement of the law.

However, the district court then quoted at length from Brown’s petition to enter a

plea of guilty, which Brown signed under oath, that stated:

            My lawyer informed me that the plea of “GUILTY” could
      subject me to a mandatory minimum term of NO MANDATORY
      MINIMUM years imprisonment (if applicable) and to a maximum
      punishment which, as provided by law, is TEN (10) years, . . .

(See Doc. 68 at 4.) Brown’s signed statement then included a footnote which

stated:

            In this regard, my attorney has specifically informed me that
      pursuant to 18 U.S.C. §2251(d), as it existed prior to the September
      30, 1996 amendment, I am subject to a maximum term of
      imprisonment of not more than 10 years. My attorney has informed


      2
       (...continued)
but were not, the court also found that these issues had been procedurally
defaulted. (See Doc. 68 at 3.)

                                         -3-
      me that because the present offense occurred prior to the September
      30, 1996, amendment to 28 U.S.C. §2251(d), I am not subject to the
      enhanced sentences which now exist under the code section.

(See id. at 4.) In addition, the petition to enter a plea signed by Brown stated, “I

swear that I have read, understood, and discussed with my attorneys, each and

every part of this Petition to Plead Guilty, and that the answers which appear in

every part of this petition are true and correct, to the best of [my] knowledge and

belief.” (Id. at 5.) Finally, the district court noted that, during the plea hearing,

Brown stated that he had no outstanding questions about entering into the plea

bargain and that he understood that all representations made by him in his petition

to enter the plea were made under oath. (See id.) Given all this evidence that

Brown was fully aware of the sentencing range to which he would be subject,

either by pleading guilty or by being convicted at trial, the district court

concluded that Brown’s guilty plea was knowing and voluntary, and that his

attorney’s performance regarding the plea bargain was not deficient. (See id. at

6.)

      Brown filed a request for a certificate of appealability (“COA”) on August

21, 2000 (see Doc. 70), which the district court denied on September 14, 2000

(see Doc. 73). In denying COA, the district court noted that three of Brown’s

claims “relate, directly or indirectly, to a claim of ineffectiveness by defendant’s

trial and appellate counsel.” (See id. at 1.) The district court then noted that,


                                          -4-
despite Brown’s current allegations of his counsel’s ineffectiveness, Brown had

assured the trial court on three different occasions, two under oath, that he was

fully satisfied with his counsel’s performance. (See id. at 1-2.) The court

therefore concluded that Brown “has failed to make a substantial showing of the

denial of a constitutional right in connection with any of his arguments and that

no reasonable jurist would find said failure to be debatable.” (Id. at 3.)

      Brown then filed an application for COA with this court on October 10,

2000, in which he requested that this court consider on the merits three of the

grounds for habeas relief addressed by the district court below: the First

Amendment claim, the jurisdictional claim, and the claim of ineffective assistance

of counsel. On October 23, 2000, however, Brown filed a motion to stay or

dismiss his appeal, arguing that he should be allowed to return to the district court

because “he realizes now that he made mistakes in his presentation [in the initial

habeas proceeding] that need to be corrected in a Rule 60(b) motion.” (See

Motion to Stay or Dismiss Appeal at 1-2.) Specifically, Brown asserts in his

motion that he did not understand that he had the burden of proving allegations of

both ineffective assistance of counsel and the involuntariness of his plea, and that

he now has evidence to support those claims. (See id. at 1.)

      Because the Petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s provisions


                                         -5-
apply to this case. See, e.g., Rogers v. Gibson, 173 F.3d 1278 (10th Cir. 1999)

(citing Lindh v. Murphy, 521 U.S. 320 (1997)). This court has stated that, in

keeping with the requirements of AEDPA, a motion pursuant to Federal Rule of

Civil Procedure 60(b) which follows the dismissal of a 28 U.S.C. §2254 habeas

petition must be treated as a second habeas petition. See Lopez v. Douglas, 141

F.3d 974, 975 (10th Cir. 1998). This is so Rule 60(b) “cannot be used to

circumvent [AEDPA’s] restraints on successive habeas petitions.” Id. We see no

reason why this rule would differ in the case of a 28 U.S.C. §2255 habeas

petition, because the relevant substantive provisions of §2254 and §2255 are

indistinguishable. As the Fifth Circuit stated in United States v. Rich, 141 F.3d

550 (5th Cir. 1998),

      [Rule 60(b)] permits the court to grant relief from a final judgment
      for “any ... reason justifying relief from the operation of the
      judgment [other than the first five reasons listed in the rule].” Fed. R.
      Civ. P. 60(b)(6). There has been a recent trend, however, to treat
      motions by federal prisoners to set aside their convictions on
      constitutional grounds as § 2255 motions, regardless of the label
      affixed to the motion. According to this trend, even though [a
      defendant’s] Rule 60(b) motion is styled merely as an attack on the
      judgment denying [his] § 2255 motion, we should treat the Rule
      60(b) motion as a successive § 2255 motion because the motion
      actually attacks the validity of [a defendant’s] conviction.

Id. at 551. Under AEDPA, a district court lacks jurisdiction to hear a petitioner’s

successive habeas petition unless the petitioner has previously applied for, and

received, authorization from a circuit court of appeals to file the second petition.


                                         -6-
See 28 U.S.C. §2255 (referring to certification procedures contained in 28 U.S.C.

§2244); 28 U.S.C. §2244(b)(3)(A); see also Lopez, 141 F.3d at 976. We thus

construe Brown’s request that we stay or dismiss his appeal so that he may file a

Rule 60(b) motion with the district court “as an implied application under 28

U.S.C. §2244(b)(3)(A) for leave to file a second habeas petition in the district

court.” See Lopez, 141 F.3d at 976.

      We reject Brown’s implied application. We find that he has failed to make

a prima facie showing either that his claim relies on a “new rule of constitutional

law made retroactive to cases on collateral review by the Supreme Court,” id., as

required by 28 U.S.C. §2244(b)(2)(A), or that “the factual predicate for the claim

could not have been discovered previously,” as required by 28 U.S.C. §2244(B).

Because Brown has not made a prima facie showing that his claim meets the

criteria set forth in 28 U.S.C. §2244(b)(2)(A)-(B) for second or successive habeas

petitions, we cannot grant leave for Brown to file a second habeas petition. See

28 U.S.C. §2244(b)(3)(c). For this reason, we must also reject Brown’s motion to

stay or dismiss his appeal and turn now to the resolution of his habeas claims.

      Under the provisions of AEDPA, a state prisoner appealing a district

court’s denial of habeas relief under §2254 must obtain a COA before we may

consider the merits of his claim. See 28 U.S.C. §2253(c)(1)(A), (B). A court may

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


                                         -7-
constitutional right.” See 28 U.S.C. §2253(c)(3). Because the district court

denied a COA, we must first decide whether to issue Brown’s requested COA

before we may address his claims on the merits. See United States v. Simmonds,

111 F.3d 737, 740-41 (10th Cir. 1997).

      For substantially the same reasons as those relied upon by district court

both to reject the initial petition on its merits and to deny COA, we find that COA

should not be granted in this case. This appeal is therefore DISMISSED.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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