                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          DEC 27 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 04-2175
       v.                                             (D. New Mexico)
 DAVID WAYNE FUENTES,                          (D.C. Nos. CIV-03-987 JP/DJS
                                                     and CR-01-214 JP)
              Defendant-Appellant.




                                     ORDER


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      David Wayne Fuentes, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s decision denying

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Mr.

Fuentes also seeks to proceed in forma pauperis (IFP) in this appeal. For

substantially the same reasons set forth in the Proposed Findings and

Recommended Disposition issued by the magistrate judge and adopted by the

district court, we conclude that Mr. Fuentes is not entitled to a COA and is not

entitled to proceed IFP.
      Mr. Fuentes’ § 2255 motion arises out of his conviction on two counts of

possessing a firearm after former conviction of a felony, in violation of 18 U.S.C.

§ 922(g)(1). He now argues that, because his former New Mexico felony

conviction was more than ten years old, New Mexico law does not prohibit him

from possessing firearms. Mr. Fuentes invokes N.M. Stat. § 30-7-16C(2), which

provides that it is unlawful for a felon to possess a firearm but defines a felon as

“a person convicted of a felony offense by a court of the United States or of any

state or political subdivision thereof and . . . less than ten years have passed since

the person completed his sentence or period of probation for the felony

conviction, whichever is later.”

      According to Mr. Fuentes, because New Mexico law does not bar his

possession of a firearm, the federal firearms convictions violate his Ninth and

Tenth Amendment rights. He further argues that he received ineffective

assistance of counsel in violation of his Sixth Amendment rights because his

counsel did not challenge his convictions on these grounds.

      To appeal the district court’s denial of his § 2255 petition, Mr. Fuentes

must obtain a COA by making “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Fuentes may make this

showing by demonstrating that “‘reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.’” Miller-El v.


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Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)). “[A] claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id. Moreover, because he

seeks to proceed IFP in this appeal, Mr. Fuentes must also demonstrate a financial

inability to pay the required fees and “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” McIntosh v. United

States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation

marks omitted).

      For substantially the same reasons set forth by the magistrate judge, we

conclude that Mr. Fuentes is not entitled to a COA and is not entitled to proceed

IFP. The fact that New Mexico law does not forbid possession of firearms by

those convicted of felonies more than ten years ago does not preclude the federal

government from doing so. See United States v. Fisher, 38 F.3d 1144, 1147 (10th

Cir. 1994) (“[I]f the defendant has been convicted of a felony under state law and

has not had his civil rights restored for that offense, then the defendant can

properly be convicted for possession of [an item prohibited by federal law] under

§ 922 (g)(1) regardless of whether that same possession is prohibited under the

state’s law.”) (emphasis added). Additionally, the federal firearms statutes

barring possession of firearms by felons do not violate the Ninth or Tenth



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Amendments. See United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000)

(rejecting the defendant’s contention that the federal firearms statutes violate the

Ninth Amendment): United States v. Napier, 233 F.3d 394, 404 (6th Cir. 2000)

(concluding that “the Tenth Amendment . . . is not violated by a federal statute

that outlaws a felon’s possession of firearms” because “the statute is not directed

at states as such, but at individual behavior”). Moreover, as the magistrate judge

observed, Mr. Fuentes was also convicted of a felony in Texas state court, and

that conviction also supports his convictions under § 922(g)(1).

      Finally, because Mr. Fuentes Ninth and Tenth Amendment challenges lack

merit, his counsel was not ineffective for failing to raise them.

      Accordingly, for substantially the same reasons set forth in the magistrate

judges’ Proposed Findings and Recommended Disposition, we DENY Mr.

Fuentes’s application for a COA and his motion to proceed IFP, and DISMISS

this appeal.



                                 Entered for the Court,



                                 Robert H. Henry
                                 Circuit Judge




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