                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 9, 2009
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 08-5118
    v.                                       (D.C. Nos. 4:08-CV-00261-CVE-FHM
                                                   & 4:05-CR-00111-CVE-1)
    ALEX SONNI GLOVER, JR.,                               (N.D. Okla.)

                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.



         Alex Sonni Glover, a federal prisoner appearing pro se, requests a

certificate of appealability (“COA”) so he can appeal the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He also

requests leave to proceed on appeal in forma pauperis (“ifp”). Exercising

jurisdiction under 28 U.S.C. § 2253, we deny his request for a COA and his

request to proceed ifp, 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      This order is not binding precedent, except under the doctrines of law of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.
I. Procedural background

      In 2005, Glover entered a guilty plea to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the

Armed Career Criminal Act (“ACCA”) to a mandatory prison term of fifteen

years, based on three previous convictions for violent felonies. See 18 U.S.C.

§ 924(e)(1). The ACCA applies to a person who has “three previous

convictions . . . for a violent felony.” Id.

      Although Glover had five previous convictions for violent felonies, the

district court expressly relied on two convictions for driving under the influence

of alcohol (“DUI”) and one conviction for larceny from a person. On direct

appeal, Glover “challenge[d] the district court’s determination that his prior

felonies for drunk driving and larceny constitute[d] violent felonies under the

[ACCA].” United States v. Glover, 211 F. App’x 811, 812 (10th Cir. 2007). This

court affirmed Glover’s conviction and sentence. Id. at 814-15.

      Later, the Supreme Court announced in Begay v. United States, 128 S. Ct.

1581, 1588 (2008), that a DUI “falls outside the scope of the [ACCA’s] ‘violent

felony’ definition.” Consequently, Glover filed his § 2255 motion alleging that

he should be resentenced because his two DUI convictions had been improperly

used to enhance his sentence. He also argued that his conviction for larceny from

a person was improperly used because it was not a violent felony. The district

court held that even without the two DUI convictions, Glover had three prior

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violent felonies so the application of Begay had no effect on his sentence. The

court also held that because Glover had unsuccessfully argued in his direct appeal

that his prior conviction for larceny from a person was not a violent felony, he

was procedurally barred from raising this claim in his § 2255 motion.

Accordingly, the district court denied the § 2255 motion. This application for a

COA followed.

II. Legal Standards

      “A COA is a jurisdictional prerequisite to our review.” Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006) (citing 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 right.’” United States v. Silva, 430 F.3d

1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)). “To make this

showing, [Glover] must establish that ‘reasonable jurists could debate whether . . .

the petition should have been resolved by the district court in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.’” Clark, 468 F.3d at 713 (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000) (alteration omitted)). Moreover, “because [Glover] seeks to proceed ifp in

this appeal, he must demonstrate that he is financially unable to pay the requisite

fees, and that there exists a reasoned, nonfrivolous argument on the law and facts

in support of the issue[] raised on appeal.” Silva, 430 F.3d at 1100 (quotation

omitted).

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III. Discussion

      Because Glover’s § 2255 motion and application for a COA are pro se, we

construe them liberally. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002)

(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). In his application for a

COA, Glover makes only one argument: His prior conviction for larceny from a

person should not have been used to enhance his sentence under the ACCA

because the district court relied on information not contained in the charging

documents to find that this conviction was a violent felony, contrary to Shepard v.

United States, 544 U.S. 13 (2005), and United States v. Taylor, 413 F.3d 1146

(10th Cir. 2005).

      As noted above, Glover raised on direct appeal his claim that his larceny

conviction was not a violent felony. Consequently, he may not raise this issue

under § 2255. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). He

now frames a slightly different argument to challenge the use of his larceny

conviction under the ACCA–the district court improperly considered information

outside the charging documents. But this argument should have been raised on

direct appeal; it cannot now be raised under § 2255. See id. Therefore, the

district court’s resolution of Glover’s § 2255 motion is not reasonably subject to

debate and the issue he seeks to raise on appeal is not adequate to deserve further

proceedings.




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IV. Conclusion

      For the foregoing reasons, Glover’s request to proceed on appeal ifp and his

request for a certificate of appealability are DENIED. The appeal is

DISMISSED.



                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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