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

                                      TENTH CIRCUIT                               July 23, 2012

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,
                                                              No. 12-3104
v.                                                  (D.C. No. 6:03-CR-10157-JTM-1,
                                                         6:11-CV-01336-JTM )
ANDRE DAVIS,                                                    (D. Kan.)

              Defendant - Appellant.




             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Andre Davis, a federal prisoner proceeding pro se,1 wants to appeal from the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. His motion is based upon alleged ineffectiveness of trial counsel.2 The district

court concluded he did not make “a substantial showing of the denial of a constitutional

right” and denied a Certificate of Appealability (COA). 28 U.S.C. § 2253(c)(2). Because

that decision is not even debatably incorrect, we deny his request for a COA.


       1
         We liberally construe Davis’s pro se 28 U.S.C. § 2255 filings. See Ledbetter v.
City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       2
         Davis retained counsel on appeal from the denial of his COA motion. Counsel
raised the due process argument for the first time on appeal.
       The facts of Davis’s case are set forth in detail in United States v. Davis, 636 F.3d

1281 (10th Cir. 2011). Summarizing here, Davis was a passenger in a rental car that was

stopped for speeding. Davis, the only identified driver on the rental agreement,

consented to a search of the car. Officers discovered a bag containing cocaine. On

appeal, Davis challenged only the length of the stop prior to the search, he did not

challenge the initial stop. Id. at 1287.

       The day before Davis was scheduled for trial, the government filed an information

notifying him that, if he were convicted, it would seek an enhanced sentence based on

two prior felony convictions. See 21 U.S.C. § 851. The information was not accurate.

One listed conviction was ineligible as a “prior” felony because it occurred after Davis’s

arrest in this case. The government conceded this point and did not use that conviction at

sentencing. The other conviction was identified by an incorrect case number.3 [78]

Davis objected to the adequacy of the information, but not on these bases. Even so, on

direct appeal, we noted these facts and held Davis was not prejudiced by the errors

because he received notice of the government’s intent to seek enhancement of the

sentence, the correct case number was in the presentence report and, at the time of

sentencing, “he was aware of facts that would have allowed him to reasonably infer that

the conviction of which he had knowledge was the same conviction listed in the




       3
        The case number identified the conviction of a different Andre Davis. However,
Davis’s counsel acknowledged at sentencing that Davis did have an eligible prior
conviction from the same court that was identified in the presentence report. (Vol. I at
140.)

                                            -2-
[information], notwithstanding its flawed description there.” Id. at 1296 (quotation marks

omitted).

       In his § 2255 motion, Davis’s ineffective assistance claim stated in full:

       Counsel failed to challenge the “stopping of vehicle” in 4th amendment
       claim. Counsel failed to meet with Judge when Judge or Prosecutor
       requested. Counsel failed to file motion to challenging government 851
       motion . . . . Counsel failed to review evidence. Counsel gave false
       information.

(Vol. I at 168.) Relevant here, the district court denied his motion because the record

demonstrated counsel had challenged the stop and the trial court ruled the initial stop was

valid due to the speeding violation. The court also concluded the record demonstrated

counsel had objected to the validity of the § 851 information. In the alternative, even if

Davis’s claim was construed as arguing ineffective assistance for failing to challenge the

specificity of the convictions, no prejudice was caused by the error.

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. See 28 U.S.C. § 2253(c)(1)(B); Gonzalez v. Thaler, 132 S.Ct. 641, 649

(2012). We will issue a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing,

an applicant 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether an

applicant has satisfied this burden, we undertake “a preliminary, though not definitive,




                                            -3-
consideration of the [legal] framework” applicable to each of his claims. Miller-El, 537

U.S. at 338.

       Strickland states the law applicable to Davis’s arguments. To demonstrate

ineffective assistance of counsel:

       [T]he defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Davis, now represented by counsel, claims the failure to object to the absence of

valid cases in the information was ineffective assistance.4 He argues: “The harm is that

the government was not required to comply with the statute and, had they been so

required, the government would not have filed the notice timely (before the jury

selection) which eliminates the minimum mandatory sentence of 20 years.” (Appellant’s

Br. at 9.)

       We disagree. Even if the notice was insufficient and counsel objected, the

government would have been able to amend the information prior to Davis’s sentencing.


       4
         Davis argues “he is, at a minimum, entitled to a hearing” to determine why
counsel did not object to the sufficiency of the information. (Appellant’s Br. at 14.) He
also attempts to bootstrap a due process claim by arguing the mistake in the information
may have been more than a clerical error and, in any event, § 851 arguably requires a
written amendment which was not provided here. None of these issues were raised
before the district court. We see no reason to depart from our general rule against
considering issues for the first time on appeal. See United States v. Viera, 674 F.3d 1214,
1219 (10th Cir. 2012).

                                           -4-
See 21 U.S.C. § 851(a)(1) (“Clerical mistakes in the information may be amended at any

time prior to the pronouncement of the sentence.”). Davis cannot demonstrate that

counsel’s error in failing to object was prejudicial. He does not deny being subject to the

recidivist enhancement or that he lacked knowledge of the prior conviction, which

formed the basis of the enhancement at the time of his sentencing. This claim must fail.

       Davis also argues that counsel was ineffective for failing to challenge the validity

of the initial stop of the rental car. He claims “it was ineffective . . . because there is

absolutely no evidence that [the stop] was made after the officer had sufficient cause to

believe a traffic violation occurred.” (Appellant’s Br. at 20.) He is again wrong. The

officer testified he “checked the speed of the vehicle running 76 in a posted 70 speed

zone.” (Vol. I at 66.) Because no reasonable jurist would debate the correctness of the

district court’s decision, see Slack, 529 U.S. at 484, we DENY the request for a COA and

DISMISS this matter.

                                            Entered by the Court:

                                            Terrence L. O’Brien
                                            United States Circuit Judge




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