                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                            May 11, 2017
                       UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                       TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                            No. 17-4009
                                                    (D.C. Nos. 2-16-CV-00725-TS and
 REBECCA LOUISE PEREZ,                                    2:14-CR-00435-TS-1)
                                                                (D. Utah)
               Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


       Appellant Rebecca Louise Perez seeks a certificate of appealability to appeal the

district court’s denial of her 28 U.S.C. § 2255 habeas petition.

       Appellant pled guilty to possession of methamphetamine with intent to distribute.

She was sentenced to 120 months of imprisonment, the mandatory minimum sentence for

her crime as a result of her prior California state-court conviction for a felony drug

offense. See 21 U.S.C. § 841(a)(1), (b)(1)(B). After sundry proceedings she filed a

petition for habeas corpus claiming ineffective assistance of counsel. The trial court



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
denied the petition and denied a certificate of appealability. Appellant has petitioned this

court for a COA to challenge the trial court’s order.

       Although Appellant raised other claims of ineffective assistance of counsel in her

habeas petition, she seeks to appeal only her claim that counsel was ineffective for failing

to challenge the sentencing enhancement. Construing her pro se pleadings liberally, see

Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991), she presents two theories to

support this claim. First, that her prior conviction was not a felony. Second, that a

subsequent statute reduced that conviction to a misdemeanor.

       We find that no reasonable jurist would debate the soundness to the trial court’s

decision. Appellant failed to raise her first argument in her habeas petition, and, even if

we were to consider this untimely argument, the documents she submitted to the trial

court show that she was convicted in the state court of a felony. The state court’s

decision to reclassify her state felony as a misdemeanor—more than a year after she had

entered her plea of guilty and been sentenced in the federal case—does not change that

historical fact. See United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013) (holding

that even an expunged state court conviction still counts as a conviction under § 841(b)

because “expunction under state law, after all, does not alter the historical fact of the

conviction” (internal quotation marks omitted)); see also United States v. Diaz, 838 F.3d

968, 971 (9th Cir. 2016) (rejecting the specific argument that the reclassification of a

California drug offense from a felony to a misdemeanor invalidates a federal

enhancement under § 841).

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      We therefore DENY the petition for COA and DISMISS the appeal. Appellant’s

motion to proceed in forma pauperis is GRANTED.


                                             ENTERED FOR THE COURT



                                             Monroe G. McKay
                                             Circuit Judge




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