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

                             FOR THE TENTH CIRCUIT                        November 7, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                    Nos. 17-8019 & 17-8052
                                                 (D.C. Nos. 2:16-CV-00171-NDF &
CHRISTOPHER JAMES WITHROW,                            2:14-CR-00207-NDF-1)
                                                             (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      In Appeal No. 17-8019, Christopher James Withrow, a federal prisoner

proceeding pro se, seeks a certificate of appealability (COA) to appeal the district

court’s denial of his motion under 28 U.S.C. § 2255, as well as the court’s denial of

his motion to amend as untimely. In Appeal No. 17-8052, Mr. Withrow appeals the

court’s order denying his motion under Fed. R. Civ. P. 60(b) to reconsider the denial

of his motion to amend. We deny a COA in No. 17-8019, and dismiss the matter.

We likewise deny a COA in No. 17-8052, and dismiss the matter.

      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except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.
                                     No. 17-8019

Background

      In 2014, Mr. Withrow was charged with conspiring to traffic in more than 50

grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and

846. He pled guilty pursuant to a plea agreement. Although Mr. Withrow’s first

attorney lodged several objections to the presentence report, Mr. Withrow’s new

attorney, who first appeared shortly before sentencing, withdrew the objections at the

sentencing hearing. As part of its sentencing calculation, the district court

determined that a two-level enhancement under U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (U.S. Sentencing Comm’n) was appropriate based on Mr. Withrow’s

possession of a firearm during the crime. Mr. Withrow’s counsel did not challenge

the firearm enhancement. At the conclusion of the hearing, the court sentenced

Mr. Withrow to 70 months’ imprisonment—the low end of the sentencing range.

Judgment on the conviction and sentence entered on December 18, 2014.

      Mr. Withrow did not appeal. However, on December 15, 2015, just days

before the expiration of the one-year filing period under 28 U.S.C. § 2255(f)(1), he

filed a motion for an extension of time to file a § 2255 motion, which the district

court granted. Mr. Withrow filed a second motion for extension of time, which the

court also granted. On June 23, 2016, Mr. Withrow filed his § 2255 motion, which

was within the filing period extended by the court.

      In his original motion, Mr. Withrow raised one claim: “The Enhancement

Movant received, for purposes of sentencing, was Constitutionally vague, arbitrary

                                           2
and capricious, and did not give notice to Movant of the type of conduct that may be

used in a prosecution or for enhancement purposes at a later date.” R., Vol. I at 9.

More specifically, Mr. Withrow argued that firearm enhancement under

§ 2D1.1(b)(1) was unconstitutionally vague under the Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 2551 (2015), and his attorney was ineffective

when he failed to raise a Johnson argument at sentencing.1 In a memorandum of law

filed simultaneously with his motion, he raised additional ineffective assistance of

counsel claims all related to the enhancement including: (1) counsel was ineffective

by failing to challenge the constitutionality of § 2D1.1(b)(1); (2) counsel failed to

inform him that he could be subject to the enhancement; and (3) counsel failed to

investigate the facts surrounding the enhancement.

      In September 2016, more than two months after he filed his § 2255 motion,

Mr. Withrow filed a motion to amend. In his proposed amended § 2255 motion,

Mr. Withrow sought to add new ineffective assistance claims, including: (1) counsel

failed to adequately investigate the charges, including the failure to interview

witnesses; (2) counsel’s failed to understand that Mr. Withrow had withdrawn from

the conspiracy; (3) counsel failed to familiarize himself with the facts to adequately

inform Mr. Withrow of his options (to go to trial or plead guilty); (4) counsel failed

to argue that the court lacked jurisdiction; (5) counsel failed to object to the use of

the co-defendant’s proffer to support the firearm enhancement; and (6) counsel failed


      1
       We note that Mr. Withrow was sentenced in December 2014—approximately
six months before Johnson was decided.
                                            3
to object to the 70-month sentence as unreasonable because of its disparity with the

sentence received by Mr. Withrow’s co-defendant.

      The district court denied the original § 2255 motion. In particular, it found

that the residual clause that was determined to be unconstitutionally vague in

Johnson—that part of 18 U.S.C. § 924(e)(2)(B)(ii) that defines a “violent felony” as a

crime that “otherwise involves conduct that presents a serious potential risk of

physical injury to another”—bears no relation to § 2D1.1(b)(1):

      [T]he language of § 2D1.1(b)(1) is not at all similar in nature to the clause
      at issue in Johnson. In fact, § 2D1.1(b)(1) has no language even remotely
      evocative of a residual clause. Despite Withrow’s claim in his reply that
      Johnson opened a can of worms with far reaching implications, this
      argument is misplaced. Nothing in Johnson indicates that every single
      statute dealing with the possession of a firearm is open to a constitutional
      challenge. Additionally the district courts that have considered this
      argument have routinely and universally rejected it. . . . In fact, Withrow
      has failed to cite to any case, in any circuit finding that Johnson affected the
      constitutionality of § 2D1.1(b)(1).
R., Vol. 1 at 126.

      And because the district court found that § 2D1.1(b)(1) was not

unconstitutionally vague, it perforce concluded that counsel could not have been

ineffective for failing to raise such a challenge. The court also rejected

Mr. Withrow’s claims that counsel was ineffective because he failed to adequately

investigate the facts used to support the enhancement and/or failed to warn

Mr. Withrow about the possible enhancement before he pleaded guilty. In this

regard, the court found that Mr. Withrow failed to come forward with any evidence

that further investigation would have uncovered any useful information vis-a-vis the


                                             4
firearm enhancement, or that he was not warned about the possible enhancement

prior to pleading guilty. More to the point, the court concluded that Mr. Withrow

could not establish prejudice because he failed to allege a reasonable probability that,

but for counsel’s alleged errors, he would not have pleaded guilty and insisted on

going to trial.

       As to Mr. Withrow’s motion to amend, the district court denied it as untimely.

The court found that the motion was filed more than two months after the

court-extended limitation period expired, and the claims did not relate back to the

original filing date. Therefore, the claims were untimely under § 2255(f)(1) and to

proceed on the new claims, Mr. Withrow had to obtain authorization from the circuit

court under § 2255(h). The court denied a COA.

Analysis

       To appeal the district court’s denial of his § 2255 motion, Mr. Withrow needs

a COA. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge issues a

[COA], an appeal may not be taken to the court of appeals from . . . the final order in

a proceeding under section 2255.”); see also Harbison v. Bell, 556 U.S. 180, 183

(2009) (holding a COA is required to appeal a final order that disposes of the merits

of a habeas corpus proceeding).

       A COA can be granted only where a prisoner makes a “substantial showing of

the denial of a constitutional right.” § 2253(c)(2). He may do so by “showing that

reasonable jurists could debate whether . . . the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

                                           5
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, Mr. Withrow must show that the

district court’s resolution of the constitutional claim was either “debatable or wrong.”

Id. A “full consideration of the factual or legal bases adduced in support of the

claims” is not required—all that is required is that the decision to grant or deny a

COA rests on “an overview of the claims in the habeas petition and a general

assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In

assessing the claims, “we review the district court’s legal conclusions de novo and its

factual findings under the clearly erroneous standard.” English v. Cody, 241 F.3d

1279, 1282 (10th Cir. 2001) (alteration and internal quotation marks omitted).

      Mr. Withrow has abandoned any argument that § 2D1.1 is unconstitutionally

vague or that his counsel was ineffective for failing to raise the issue. He focuses

instead on whether his counsel conducted an adequate investigation and/or whether

he had notice of the possible firearm enhancement. We conclude that the district

court’s resolution of these claims was not debatable or wrong.

      To establish constitutionally ineffective assistance of counsel, Mr. Withrow

must show the “representation fell below an objective standard of reasonableness”

and that it prejudiced him such that there exists “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985) (internal quotation marks

omitted). The reasonable probability standard “requires a substantial, not just



                                            6
conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189

(2011) (internal quotation marks omitted).

         The district court found that Mr. Withrow’s claim that his sentence would have

been different if counsel had conducted a further investigation of the facts of the

firearm enhancement was speculation. See United States v. Fisher, 38 F.3d 1144,

1147 (10th Cir. 1994) (“[C]onclusory allegations [are] insufficient to support [an

ineffective assistance of counsel] claim.”). The court further found no prejudice from

counsel’s alleged failure to tell Mr. Withrow about the possible firearm enhancement,

because even assuming his lawyer did not discuss the issue with him before pleading

guilty, the government placed Mr. Withrow on notice of the possible enhancement at

the plea hearing. We do not decide whether notice from the government is sufficient,

because the court found that Mr. Withrow failed to argue “in any way that if he had

been aware of the potential for the firearm enhancement, he would have rejected the

plea and proceeded to trial.” R., Vol. I at 131. To the contrary, Mr. Withrow argues

that he might have received a lesser sentence—not that he would have proceeded to

trial.

         We find that no reasonable jurists could debate the correctness of the district

court’s denial of Mr. Withrow’s § 2255 motion, and we decline to issue a COA.

         We also deny Mr. Withrow a COA to appeal the district court’s decision to

deny his motion to amend his § 2255 motion as untimely. Where, as here, a district

court has dismissed a filing on procedural grounds, for a COA the movant must show

both “that jurists of reason would find it debatable whether the petition states a valid

                                             7
claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack,

529 U.S. at 484.

       The district court extended the deadline for Mr. Withrow to file his § 2255 to

and including July 5, 2016. He timely filed his original motion on June 23, 2016.

On September 2, 2016, Mr. Withrow filed a motion to amend his § 2255 motion

under Fed. R. Civ. P. 15(a) to include the six new claims outlined above. According

to Mr. Withrow, he was entitled to amend his motion without the court’s permission

because the government had not filed a response to his § 2255 motion. Relying on

this court’s holding in United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir.

2000), the court explained that Mr. Withrow’s motion to amend was untimely

because it sought to add entirely new claims or theories of relief:

       Federal Rule of Civil Procedure 15(c) allows an amendment clarifying or
       amplifying claims already raised in an original § 2255 motion to relate back
       to the date of the original § 2255 motion. . . . However, after the one-year
       limitation period has expired, a prisoner who wishes to add entirely new
       claims or theories of relief may do so only by first seeking the prior
       approval of the court of appeals; they may not do so via merely
       amending—and adding to—their already filed habeas motion.
R., Vol. I at 133.

       Reasonable jurists could not debate the correctness of the district court’s

procedural determination that Mr. Withrow’s proposed amended § 2255 motion

contained new claims that did not relate back to his original motion and was therefore

untimely.



                                            8
      On appeal, Mr. Withrow outlines the obstacles he faced in raising the new

claims in his original § 2255 motion and argues that a liberal construction of his pro

se pleadings favors the amendment. We disagree and find the district court’s

determination that these “are entirely new claims and theories of ineffective

assistance of counsel,” id. at 134, neither debatable or wrong. Mr. Withrow’s

original claims (contained in his motion and memorandum of law) concerned the

alleged ineffective assistance of counsel as it related to § 2D1.1(b)(1). On the other

hand, the proposed new ineffective assistance of counsel claims went far beyond the

original enhancement-related claims. See Espinoza-Saenz, 235 F.3d at 505 (holding

“claims [that are] totally separate and distinct, in both time and type from those

raised in [the] original motion,” do not relate back to the date of the original motion

(internal quotation marks omitted).).

      We find that no reasonable jurists could debate the correctness of the district

court’s procedural ruling, and therefore decline to issue a COA.

                                        No. 17-8052

      Mr. Withrow filed a motion under Fed. R. Civ. P. 60(b) for the district court to

reconsider the denial of his motion to amend. The court treated this as a “true” Rule

60(b) motion, but denied it because Mr. Withrow failed to show error on any ground

listed in Rule 60(b)). Instead, the court determined that arguments should be raised

on appeal. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996)

(“Rule 60(b) is not intended to be a substitute for a direct appeal.”). Indeed,

Mr. Withrow has raised his allegations of error and we have addressed them in

                                            9
No. 17-8019. Because neither Mr. Withrow’s Rule 60(b) motion nor his brief in

No. 17-8052 raise any substantive arguments that were not considered as part of our

disposition of No. 17-8019, we deny a COA and dismiss this matter.

      In No. 17-8019, we accept for filing the exhibits to the opening brief submitted

by Mr. Withrow (Appendices 1 and 2) and grant his motion to correct the “record”—

that is to substitute Exhibits R to V of his opening brief. We deny Mr. Withrow’s

motion to direct the district court reporter to correct the sentencing transcript.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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