                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 27, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 11-3378
 v.                                        (D.C. Nos. 5:10-CR-40009-SAC-1 and
                                                  5:11-CV-04041-SAC-1)
 ANDREW RUTHERFORD,                                     (D. Kansas)

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.



      Andrew Rutherford filed a federal habeas petition pursuant to 28 U.S.C.

§ 2255, seeking relief from his conviction for conspiring to traffic marijuana in

violation of 21 U.S.C. §§ 841 and 846. The district court denied his petition, and

he now asks us to issue a certificate of appealability (COA) to allow him to

contest that decision.

      We may grant a COA only if Mr. Rutherford makes a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this


      *
         This order is not binding precedent except under the doctrines of law of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.
standard, an applicant must show “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation omitted). Because Mr. Rutherford proceeds in this court pro

se, we review his pleadings with special solicitude.

         Even by this forgiving standard we cannot grant a COA, because binding

precedent forecloses all of Mr. Rutherford’s claims. The bulk of the petition is

devoted to arguing that 21 U.S.C. §§ 841 and 846 exceed the federal

government’s constitutional authority. But we have already held that these

statutes fall within Congress’s power to regulate interstate commerce. See, e.g.,

United States v. Price, 265 F.3d 1097, 1106-07 (10th Cir. 2001). Mr. Rutherford

argues that these laws violate the Tenth Amendment, which he says “reserved” for

the states the power to punish drug cultivation. But ours is a system of dual

sovereignty, and the existence of state regulatory authority doesn’t preclude

Congress from legislating in the same area so long as it stays within its

enumerated powers. See Abbate v. United States, 359 U.S. 187, 192-194 (1959).

Because §§ 841 and 846 are valid exercises of the commerce power and regulate

private parties as opposed to the states themselves, they do not contravene the

Tenth Amendment. See United States v. Hampshire, 95 F.3d 999, 1004 (10th Cir.

1996).

                                        -2-
      Mr. Rutherford’s as-applied challenge fares no better. In his guilty plea

colloquy he admitted to conspiring to ship drugs across state lines, conduct that

plainly would fall within the federal government’s authority to punish. See

Gonzales v. Raich, 545 U.S. 1, 17-19 (2005).

      Mr. Rutherford’s other claims fall along with his challenges to §§ 841 and

846. His lawyers couldn’t have been constitutionally ineffective for failing to

object to statutes that are plainly valid. And his claim that the District of Kansas

lacked jurisdiction to try his case likewise hinges on his assertion that the federal

government had no business outlawing his drug operation. Finally, his argument

that “the State of Kansas is not a ‘state’ under the Controlled Substances Act”

lacks any basis in law or logic.

      The request for a COA is denied, as is Mr. Rutherford’s motion for leave to

proceed in forma pauperis. The appeal is dismissed.


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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