                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS                  July 20, 2012
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-3096
                                               (D.C. No. 6:11-CV-01300-MLB)
 v.                                                       D. Kansas
 ROBERT F. ROBERTS,

              Defendant - Appellant.


 ORDER DENYING CERTIFICATE OF APPEALABILITY IN PART AND
    GRANTING A CERTIFICATE OF APPEALABILITY IN PART


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.


      Petitioner, Robert F. Roberts, seeks a certificate of appealability (“COA”)

so he can appeal the district court’s denial of the motion to vacate, set aside, or

correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255

motion unless he first obtains a COA). In 2009, Roberts was convicted of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

judgment of conviction was affirmed by this court on March 29, 2011. United

States v. Roberts, 417 F. App’x 812 (10th Cir. 2011). Roberts filed the instant

§ 2255 motion on September 30, 2011, raising four claims of ineffective

assistance of trial counsel. The district court denied relief on all four claims.
      Roberts cannot appeal the denial of his motion until he first obtains a COA

from this court. 1 See 28 U.S.C. § 2253(c)(1)(B). To be entitled to a COA,

Roberts must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate

“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.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether

Roberts has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although Roberts need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id. (quotations omitted). In his

COA application and appellate brief, Roberts challenges the district court’s

disposition of his four claims and also argues the court abused its discretion by

refusing to permit him to amend his § 2255 motion.

      The first two claims addressed by the district court relate to Roberts’s

allegations his trial counsel failed to investigate whether he was legally permitted

to carry a firearm in Kansas despite a 1999 Kansas felony conviction. See 18


      1
          Roberts’s request to proceed in forma pauperis on appeal is granted.


                                          -2-
U.S.C. § 921(a)(20) (providing a prior conviction does not trigger the federal

prohibition on possession of a firearm if the defendant “has had [his] civil rights

restored.”); see also See United States v. Baker, 508 F.3d 1321, 1328 (10th Cir.

2007) (looking to the “whole of state law” to determine whether a defendant’s

firearms privileges are restricted (quotation omitted)). It is clear these two claims

were properly dismissed by the district court. In 1999, Roberts was convicted of

robbery, possession of cocaine with intent to sell, and criminal possession of a

firearm. He was sentenced to forty-four months’ incarceration. His probation

was revoked in 2000 and he was paroled in 2006. His sentence expired on June

26, 2008. The instant felon-in-possession offense occurred on April 6, 2008.

Kansas criminalizes the possession of a firearm “by a person who, within the

preceding ten years . . . has been released from imprisonment for” specifically

enumerated felonies, including robbery. Kan. Stat. Ann. § 21-4204(a)(4) (2007). 2

Because Roberts has wholly failed to show that his right to possess a firearm was

restored under Kansas law, he cannot show he was prejudiced by his attorney’s

performance. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998)

(holding a court may address Strickland’s performance and prejudice prongs “in

any order, but need not address both if [movant] fails to make a sufficient

showing of one”). Although Roberts repeatedly argues it was the Government’s

      2
      After Roberts committed the offense of conviction, the Kansas legislature
moved the relevant statute from Kan. Stat. Ann. § 21-4204(a)(4) to Kan. Stat.
Ann. 21-6304(a)(3)(A).

                                         -3-
burden to prove the elements of the offense at trial, we note it is now Roberts’s

burden to prove his counsel was constitutionally ineffective. He cannot meet that

burden with his unsupported and conclusory assertions.

      Roberts has also failed to meet his burden of showing his counsel was

ineffective for failing to object or move for a mistrial when the trial court denied

the jury’s request for a read-back of testimony. He has again failed to show any

prejudice flowing from counsel’s allegedly deficient performance. Finally,

Roberts argues his counsel failed to properly familiarize himself with a

photograph before inviting testimony about it. This court has already concluded

the admission of the photograph was not error. Roberts, 417 F. App’x at 821-22.

Further, counsel relied on the photograph to support the position Roberts did not

possess a gun the night of his arrest. Id. at 822 (quoting from counsel’s closing

argument). Not only were counsel’s actions objectively reasonable, Roberts has

failed to show the jury’s verdict would be different if the photograph had not been

admitted. See United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000)

(“In order to obtain habeas relief for ineffective assistance of counsel, a petition

must establish both that his attorney’s representation was deficient and that he

was prejudiced by that deficiency.” (quotation omitted)).

      We next address Roberts’s assertion the district court abused its discretion

by refusing to permit him to supplement or amend his § 2255 motion. After filing

his initial § 2255 motion, Roberts sought to add several additional claims: four

                                          -4-
claims alleging his appellate counsel was ineffective for failing to develop record

support for the four arguments raised in his original § 2255 motion; a claim his

appellate counsel was ineffective for failing to object to the district court’s

suggestion that counsel for the government meet with his appellate and trial

counsel before the evidentiary hearing on his motion for a new trial to discuss

trial counsel’s prior representation; claims that trial and appellate counsel were

ineffective for failing to challenge the calculation of his criminal history score;

claims that trial and appellate counsel were ineffective for failing to challenge the

jury selection process; a claim alleging trial counsel was ineffective for advising

him to stipulate to a prior state firearm crime that he asserts was not a felony and

a related claim that appellate counsel was ineffective for failing to raise the issue

on direct appeal; and claims that trial and appellate counsel were ineffective for

failing to challenge the indictment as defective because it did not set out the

predicate prior felony supporting the federal felon-in-possession charge. 3

      “Under Fed. R. Civ. P. 15(a), a party may amend its pleading once as a

matter of course prior to response by the opposing party.” United States v.

Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007). The district court refused to

permit Roberts to amend his § 2255 motion because the proposed amendments

were not signed under penalty of perjury and because he sought to raise new


      3
       Roberts failed to specifically set out these additional claims in his
application for COA, thus hindering this court’s review.

                                          -5-
claims. See id. at 1315. This court, however, has previously held that a district

court must give a § 2255 movant the opportunity to amend his motion to conform

to procedural requirements even if he seeks to add a new claim. See id. at 1316-

17 & 1317 n.3 (holding a § 2255 movant seeking to add a timely claim should be

given “an opportunity to conform his motion to . . . procedural requirements”

because “of the strenuous requirements for filing a second or successive § 2255

motion”). We conclude, therefore, the district court abused its discretion by

refusing to permit Roberts to amend his § 2255 motion.

      As to Roberts’s claims that trial and appellate counsel were ineffective for

failing to challenge the calculation of his criminal history score, this court has

reviewed the record, including the Presentence Investigation Report (“PSR”), and

concludes Roberts is entitled to a COA because he has made a substantial

showing of a denial of a constitutional right. 4 The PSR assessed nine criminal

history points against Roberts; three of which were for the sentence he received in

Case No. 99CR3189 which he does not challenge. Three additional points were

assessed for the sentence he received in Case No. 99CR1926. This sentence

      4
        “To demonstrate ineffectiveness of counsel, the defendant must generally
show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.”
United States v. Lopez, 100 F.3d 113, 117-18 (10th Cir. 1996) (citing Strickland
v. Washington, 466 U.S. 668, 687, 690 (1984)). Under the prejudice prong of the
Strickland test, “a defendant must establish that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” United States v. Harfst, 168 F.3d 398, 402 (10th Cir. 1999)
(quoting Strickland, 466 U.S. at 694).

                                          -6-
relates to a 1999 aggravated escape conviction. According to the PSR, this

escape offense occurred while Roberts was “held in lawful custody on an

adjudication as a juvenile offender for an act which would be a felony if

committed by an adult, to-wit: 96JV[].” According to Roberts, the sentence for

this escape conviction should not be counted separately from the sentence

imposed in Case No. 99CR1925 because the two offenses were not separated by

an intervening arrest and the sentences in 99CR1925 and 99CR1926 were

imposed on the same day. See USSG § 4A1.2(a)(2) (“Prior sentences always are

counted separately if the sentences were imposed for offenses that were separated

by an intervening arrest (i.e., the defendant is arrested for the first offense prior to

committing the second offense).”). Thus, he argues, his total criminal history

points are six, not nine, reducing his Criminal History Category from IV to III

and decreasing his advisory guidelines range to 41-51 months. We conclude that

although Roberts has not demonstrate this appeal will succeed, he has proved

“something more than the absence of frivolity or the existence of mere good

faith,” Miller-El, 537 U.S. at 338 (quotations omitted), and thus has met his

burden of demonstrating “that reasonable jurists could debate whether” this issue

should proceed further. Id. at 336 (quotations omitted); see also Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000) (holding that when a district court

dismisses a habeas petition on procedural grounds, a petitioner is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether

                                           -7-
he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct).

      We further conclude, however, that Roberts is not entitled to a COA on the

remaining claims he sought to add to his § 2255 motion because he has not made

“a substantial showing of the denial of a constitutional right” with respect to these

claims. 28 U.S.C. § 2253(c)(2). As to the four claims of ineffective assistance of

appellate counsel that relate to the four claims raised in the original § 2255

motion, we have already concluded herein that the four claims of ineffective

assistance of trial counsel are meritless. 5 Roberts has also failed to identify any

privileged information disclosed by his appellate counsel during the pre-hearing

meeting and thus cannot show how the meeting resulted in a violation of his

constitutional rights. Roberts cannot prevail on his jury-selection claim unless he

demonstrates, inter alia, that the alleged underrepresentation of African

Americans in the jury pool “is due to systematic exclusion of the group in the

jury-selection process.” Trice v. Ward, 196 F.3d 1151, 1164 (10th Cir. 1999)

(quotation omitted). Because he has presented no evidence to support his

conclusory accusations, he is not entitled to a COA on this claim.




      5
       Additionally, in his application for COA and appellate brief, Roberts has
wholly failed to identify the information appellate counsel allegedly failed to
garner and how that information would entitle him to relief on his claims that trial
counsel was ineffective.

                                          -8-
      Roberts next asserts counsel was ineffective for advising him to stipulate to

a prior state firearm crime which he argues was not a felony and thus could not

support the federal felon-in-possession charge. Even assuming the state firearm

crime is not a felony, Roberts has been convicted of multiple felonies, any one of

which could have supported the federal firearm charge. Thus, he has not shown

entitlement to a COA on this claim. He is not entitled to a COA on his challenge

to the indictment because he stipulated to the prior felony conviction and the

record contains uncontroverted evidence that trial counsel reasonably advised

Roberts to stipulate to this element so the jury would not learn about the prior

convictions.

      Having undertaken a review of Roberts’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Roberts is not entitled to a COA on any claim except the one relating to

the district court’s refusal to permit him to amend his § 2255 motion to add

claims his trial and appellate counsel were ineffective for failing to challenge the

calculation of his criminal history. The district court’s resolution of the

remaining claims on which Roberts seeks a COA is not reasonably subject to

debate and the other issues he seeks to raise on appeal are not adequate to deserve

further proceedings. Accordingly, with the exception of the claims on which

COA has been granted, this court denies Roberts’s request for a COA.

                                          -9-
      With respect to the issues on which we grant COA, Appellee is directed to

file an appellate brief within thirty days of the date of this order. The brief

should address the issues on which COA has been granted, and any other issues

Appellee deems appropriate. Specifically, the brief should address whether the

matter should be remanded to the district court to permit Roberts to amend his

§ 2255 to add the claims on which COA has been granted and, if so, whether the

district court can resolve the claims without an evidentiary hearing. Roberts may

file a reply brief within fourteen days of service of Appellee’s brief if he so

desires. Roberts’s reply brief may only address the claims upon which COA has

been granted. All briefs shall be filed and served in compliance with Federal

Rules of Appellate Procedure. Requests for extension of these time limits will be

viewed with disfavor.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




                                         -10-
