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

                             FOR THE TENTH CIRCUIT                             July 21, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 16-6148
v.                                                 (D.C. No. 5:12-CR-00297-R-13
                                                       and 5:16-CV-00072-R)
BANI MORENO,                                             (W.D. Oklahoma)

      Defendant - Appellant.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
                  _________________________________


      Bani Moreno, a federal prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) granting him permission to appeal from the denial of his motion

under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Exercising

jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA.




      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
        Because Mr. Moreno appears in these proceedings without counsel, we
construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). But we stop short of acting as his advocate. See United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009).
                                 I.   BACKGROUND

      Mr. Moreno was convicted after a jury trial of one count of conspiracy to

possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846

and 21 U.S.C. § 841(a)(1); two counts of using a communication device to facilitate a

drug transaction in violation of 21 U.S.C. § 843(b); one count of distribution of

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

of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced him to 144 months of imprisonment, followed by five

months of supervised release. This court affirmed his conviction on direct appeal. See

United States v. Moreno, 607 F. App’x 775 (10th Cir. Apr. 15, 2015) (unpublished).

      Mr. Moreno then filed an application for a writ of habeas corpus under 28

U.S.C. § 2255, alleging several claims of ineffective assistance of counsel. The

district court denied the motion and on March 11, 2016, it entered judgment against

Mr. Moreno. On March 21, 2016, Mr. Moreno filed a post-judgment motion seeking

reconsideration, which he styled as a Rule 59(e) motion. See Fed. R. Civ. P. 59(e)

(Motion to Alter or Amend Judgment). The district court treated the motion as an

unauthorized second or successive § 2255 petition and dismissed for lack of

jurisdiction. The district court also denied Mr. Moreno’s request for a COA to appeal

the denial of his original § 2255 petition. Mr. Moreno filed this appeal.




                                              2
                                    II.   DISCUSSION

       To begin, we address the scope of this appeal. Because Mr. Moreno filed his Rule

59(e) motion within 28 days of judgment, the time to file his Notice of Appeal from the

order denying his § 2255 petition was tolled. See Fed. R. Civ. P. 59(e) (“A motion to alter

or amend a judgment must be filed no later than 28 days after the entry of the

judgment.”); Fed. R. App. P. 4(a)(4)(A)(iv) (providing that the time for filing an appeal

runs from the order disposing of a timely motion to alter or amend judgment). Thus, Mr.

Moreno’s Notice of Appeal was timely and could properly notice his challenge to the

order denying his § 2255 petition and the subsequent order dismissing his Rule 59(e)

motion for lack of jurisdiction.

       In his Notice of Appeal, however, Mr. Moreno identifies the decision appealed

from as Document 960, which is the district court’s order dismissing his Rule 59(e)

motion for lack of jurisdiction. See Fed. R. App. P. 3(c)(1)(B) (requiring that notice of

appeal “designate the judgment, order, or part thereof being appealed”). Generally, we

construe a notice of appeal strictly where the appellant designates only part of the trial

court’s decision as the subject of the appeal. See Cunico v. Pueblo Sch. Dist. No. 60, 917

F.2d 431, 444 (10th Cir. 1990). But “[a] mistake in designating the judgment appealed

from is not always fatal, so long as the intent to appeal from a specific ruling can fairly be

inferred by probing the notice and the other party was not misled or prejudiced.”

Sanabria v. United States, 437 U.S. 54, 67 n.21 (1978); see also Nolan v. U.S. Dep’t of

Justice, 973 F.2d 843, 846 (10th Cir. 1992) (“The requirements of Rule 3 should be

liberally construed.”).

                                                 3
       Mr. Moreno’s Notice of Appeal states, with our emphasis:

       COMES NOW, Bani Moreno, (“Moreno”), Pro Se, to the Honorable Court
       filing this instant Notice of Appeal of the Court’s “Order” (Document 960)
       that denied Moreno’s 2255, and Certificate of Appealability (“COA”).
       Herein, and herewith, Moreno, notices the Honorable Court of his filing of
       an application for COA with The United States Court of Appeals, in accord
       with 28 U.S.C. Section 2253, and F.R.A.P., Rule 22(b).

Although the Notice of Appeal references Document 960—the order denying his Rule

59(e) motion—the text of the notice provides fair notice that he intends to appeal from

the district court’s previous order denying his § 2255 application. Accordingly, Mr.

Moreno has effectively appealed both orders.2

       But before we can exercise jurisdiction over Mr. Moreno’s appeal of the denial of

his application for relief under § 2255, he must first obtain a COA. See 28 U.S.C.

§ 2253(c)(1)(B) (“Unless a circuit justice or judge issues a certificate of appealability, an

appeal may not be taken to the court of appeals from . . . the final order in a proceeding

under section 2255.”). We will issue a COA only if Mr. Moreno “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make that

showing, Mr. Moreno must demonstrate “that reasonable jurists could debate whether (or,


       2
          Furthermore, Mr. Moreno filed his brief seeking a COA from this court before
the time to appeal from the denial of his timely Rule 59(e) motion expired. Even if we
had concluded that he had not adequately identified the order denying his § 2255
application in the Notice of Appeal, we could treat Mr. Moreno’s brief as an amended
notice of appeal. This is because it was timely under Rule 4 and fairly raises arguments
applicable to the order denying his original § 2255 petition, as well as the order treating
his Rule 59(e) motion as a successive § 2255 petition and dismissing it for lack of
jurisdiction. See Fed. R. App. P. 4(a)(1)(A); see also Smith v. Barry, 502 U.S. 244, 249
(1992) (stating that the Federal Rules “do not preclude an appellate court from treating a
filing styled as a brief as a notice of appeal . . . if the filing is timely under Rule 4 and
conveys the information required by Rule 3(c)”).
                                                  4
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) (internal quotation marks omitted). Mr.

Moreno has not made that showing here.

       In seeking a COA to challenge the district court’s order denying his § 2255

application, Mr. Moreno argues three instances of ineffective assistance of counsel

deprived him of a constitutional right. To establish constitutionally ineffective assistance

of counsel, Mr. Moreno must establish both that 1) his counsel’s performance fell below

an objective standard of reasonableness; and 2) that the deficient performance resulted in

prejudice to Mr. Moreno. See Strickland v. Washington, 466 U.S. 668, 690–92 (1984).

The failure to establish either prong of this test is fatal to a claim of ineffective assistance

of counsel. See United States v. Hollis, 552 F.3d 1191, 1194 (10th Cir. 2009).

       In his § 2255 application, Mr. Moreno first asserts trial counsel performed

ineffectively by failing to require proof that the members of the petit and grand juries

were United States citizens and were not disqualified due to pledging allegiance to sworn

enemies of the United States. Second, he argues trial counsel performed deficiently by

failing to object when the trial court struck a juror for cause. Mr. Moreno’s third claim is

that trial counsel performed deficiently by failing to object to the government’s reference

to Mr. Moreno’s post-arrest invocation of his right to remain silent. The district court

considered and rejected each of these claims.

       With respect to Mr. Moreno’s claim that trial counsel performed ineffectively by

failing to inquire as to the citizenship of the grand and petit jurors, the district court found

                                                   5
Mr. Moreno had, “failed to show that some of the jurors were not citizens of the United

States and that he was prejudiced by that fact.” The district court thus held that even if the

conduct complained of had been deficient, Mr. Moreno had failed to establish that it was

prejudicial. In his brief to this court, Mr. Moreno continues to pose the hypothetical

possibility that one or more jurors may not have been citizens of the United States. But

the burden is on Mr. Moreno to establish prejudice in support of his ineffective assistance

claim, not on the government to disprove it. See Strickland, 466 U.S. at 693 (“[A]ctual

ineffectiveness claims alleging a deficiency in attorney performance are subject to a

general requirement that the defendant affirmatively prove prejudice.”). Because

reasonable jurists would not find debatable or wrong the district court’s assessment that

Mr. Moreno failed to prove prejudice, he is not entitled to a COA on this issue.

       Next, we consider Mr. Moreno’s ineffective assistance claim based on trial

counsel’s failure to object when the trial court struck a juror who had some family

members facing drug charges and others working at the County Jail. The district court

found neither prong of the Strickland test had been met with respect to this claim.

Specifically, it held Mr. Moreno had failed to establish that counsel’s conduct fell outside

the wide range of acceptable professional conduct, or that there is a reasonable possibility

the result of Mr. Moreno’s trial would have been more favorable but for the alleged

deficient performance. Given the broad discretion trial courts enjoy in assessing juror

bias, we conclude that reasonable jurists would not find the district court’s decision

wrong or debatable. Consequently, Mr. Moreno is not entitled to a COA on this issue. See

United States v. Scull, 321 F.3d 1270, 1278 (10th Cir. 2003) (“The district court has

                                                 6
broad discretion in determining how to handle allegations of juror bias.” (internal

quotations marks omitted)).

       Mr. Moreno also claims his trial counsel performed ineffectively by not moving

for a mistrial or obtaining a curative instruction after the prosecutor elicited testimony

about Mr. Moreno’s post-arrest exercise of his right to remain silent. The district court

rejected this argument based on the trial court’s remedial action in immediately

admonishing the prosecution to refrain from future references to Mr. Moreno’s silence

and on the substantial evidence of Mr. Moreno’s guilt. It also concluded that trial

counsel’s failure to seek a curative instruction was not deficient because the instruction

“would merely have highlighted [Mr. Moreno’s] post-arrest invocation of his right to

counsel.” And the district court held Mr. Moreno had failed to establish a reasonable

probability the result of trial would have been different but for the alleged deficient

performance. Based on our independent review of the record, we easily conclude that

reasonable jurists would not find the district court’s assessment wrong or debatable. Mr.

Moreno has therefore failed to establish his entitlement to a COA on this issue.

       Finally, Mr. Moreno challenges the district court’s dismissal of his Rule 59(e)

motion. The district court treated the motion as a second or successive petition under

§ 2255 and dismissed it for lack of jurisdiction. See United States v. Torres, 282 F.3d

1241, 1242, 1246 (10th Cir. 2002) (holding that the district court properly characterized

federal prisoner’s “petition for writ of error coram nobis and/or petition for writ of audita

querela” as a successive § 2255 petition and stating, “to allow a petitioner to avoid the

bar against successive § 2255 petitions by simply styling a petition under a different

                                                  7
name would severely erode the procedural restraints imposed under 28 U.S.C.

§§ 2244(b)(3) and 2255”). That characterization is correct.

       The post-judgment motion did not assert a procedural defect affecting the district

court’s resolution of Mr. Moreno’s initial § 2255 petition. Instead, it reargues and

expands upon the substantive challenges to Mr. Moreno’s underlying conviction raised in

that initial petition. As such, it is not a “true” motion to alter or amend judgment under

Rule 59(e). See Spitznas v. Boone, 464 F.3d 1213, 1215–16 (10th Cir. 2006) (holding that

“a 60(b) motion is a second or successive petition if it in substance or effect asserts or

reasserts a federal basis for relief from the petitioner’s underlying conviction,” as

opposed to a “true” Rule 60(b) motion, which “(1) challenges only a procedural ruling of

the habeas court . . . or (2) challenges a defect in the integrity of the federal habeas

proceeding”) (citing Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005)); see also

United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (holding that Rule 59(e)

motions are subject to the same treatment as Rule 60(b) motions under Spitznas)). Thus,

the district court’s conclusion that Mr. Moreno’s post-judgment motion was not a true

motion to alter or amend judgment, but was instead a successive petition under § 2255

over which it lacked jurisdiction, is not subject to debate.




                                                  8
                               III.   CONCLUSION

   For the reasons set out above, this court denies Mr. Moreno’s request for a COA and

dismisses this appeal.

                                               ENTERED FOR THE COURT


                                               Carolyn B. McHugh
                                               Circuit Judge




                                              9
