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

                             FOR THE TENTH CIRCUIT                                August 7, 2020
                         _________________________________
                                                                              Christopher M. Wolpert
                                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 20-8026
                                                     (D.C. Nos. 1:19-CV-00047-SWS &
 CHRISTOPHER JOSEPH EADS,                                 1:17-CR-00172-SWS-1)
                                                                 (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.
                  _________________________________


       Petitioner-Appellant Christopher Joseph Eads, an inmate appearing pro se, seeks a

Certificate of Appealability (COA) from the district court’s dismissal of his motion under

28 U.S.C. § 2255. I R. 37. To obtain a COA he must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has

rejected the constitutional claims on the merits . . . [t]he petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has

been denied on procedural grounds, the movant must additionally demonstrate “that


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. Mr. Eads has failed to make either showing and therefore we

deny his request for a COA.

       In 2017, Mr. Eads pled guilty to: (1) conspiracy to distribute heroin and

methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B) and (b)(1)(C) (Count One); (2)

use and carry of a firearm during and in relation to drug trafficking activity, 18 U.S.C.

§ 924(c)(1)(A)(i) (Count Two); (3) use, carry, and discharge of a firearm during and in

relation to a federal drug trafficking crime, 18 U.S.C. §§ 924(c)(1)(A)(iii) and (c)(2)

(Count Four); (4) two counts of carjacking, 18 U.S.C. § 2119 (Counts Five and Six); and

(5) assault on a federal officer by means of a deadly weapon, 18 U.S.C. §§ 111(a)(1) and

(b) (Count Seven). He was sentenced to 480 months’ imprisonment and four years’

supervised release. He did not appeal his sentence.

       In March 2019, Mr. Eads sought postconviction relief, filing a § 2255 motion

asserting: (1) ineffective assistance of counsel because counsel permitted him to plead

guilty to two 18 U.S.C. § 924(c) counts; (2) double jeopardy because he was charged

twice under § 924(c) for the same drug trafficking offense; and (3) a First Step Act

violation. The district court denied the motion determining that: (1) Mr. Eads failed to

establish deficient performance of counsel, and that, even if he had, he had not

established prejudice, i.e. but-for counsel’s claimed deficient performance, he would have

been unlikely to accept the government’s plea agreement; (2) the double jeopardy claim

was without merit, but procedurally barred; and (3) the First Step Act did not apply to

Mr. Eads and was not a basis for relief.

                                              2
       On appeal, Mr. Eads argues that conspiracy to distribute a controlled substance

(Count 1) is not a drug trafficking offense and cannot be a predicate offense for a

§ 924(c) (Count 2); and that counsel was ineffective for not raising this. The first

proposition is plainly incorrect, see 21 U.S.C. § 846; United States v. Jenkins, 313 F.3d

549, 55758 (10th Cir. 2002). We have reviewed Mr. Eads’s claims and do not find

them reasonably debatable for substantially the same reasons as the district court.

       We DENY a COA, DENY the motion to proceed IFP, and DISMISS the appeal.



                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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