                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSFebruary 7, 2014
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 13-3261
 v.                                         (D.C. Nos. 5:11-CV-04048-JAR and
                                                  5:03-CR-40053-JAR-1)
 NORMAN A. PARADA,                                       (D. Kan.)

              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Norman A. Parada, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the denial of his motion pursuant to Federal

Rule of Civil Procedure 59(e), requesting that the district court reconsider his

habeas claim under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

      Exercising jurisdiction under 28 U.S.C. §§ 2253(a), 2253(c), and 1291, we

DENY Parada’s request for a COA and DISMISS his appeal.




      *
         This order is not binding precedent except under the doctrines of law of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.
                                 I. Background

       Parada was convicted of possession with intent to distribute 100 or more

grams of phencyclidine (PCP) and conspiracy to distribute the same. On appeal,

we vacated Parada’s conviction and reversed his sentence for an evidentiary error.

See United States v. McNeill, 136 F. App’x 153 (10th Cir. 2005). After a second

trial, a jury convicted Parada on both charges, and the district court sentenced him

to 405 months’ custody. We affirmed his conviction on direct appeal, United

States v. Parada, 577 F.3d 1275 (10th Cir. 2009), and the Supreme Court denied

certiorari.

       Parada then timely sought § 2255 relief, raising twenty-five separate

grounds of ineffective assistance of counsel at every stage of the underlying

proceedings. The district court denied both Parada’s request for § 2255 relief and

his request for a COA. Parada then asked the district court to reconsider his

§ 2255 motion under Federal Rule of Civil Procedure 59(e). In his motion,

Parada limited his request for reconsideration to four, or conceivably five, issues.

While his motion for reconsideration was sub judice, Parada appealed the denial

of his request for § 2255 relief to this court. We abated the appeal pending

disposition of Parada’s motion for reconsideration, which the district court

denied.

       Parada filed an appellate brief that we liberally construe as a mixed appeal.

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991) (explaining that pro

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se litigants’ filings are construed liberally). In part, Parada’s appeal opposes the

district court’s denial of his claims for ineffective assistance of counsel from his

original § 2255 motion. 1 See Fed. R. App. P. 4(a)(4)(B)(i). Parada also partially

appeals the denial of his motion for reconsideration, where the district court

reclassified one of the claims as an unauthorized second or successive § 2255

petition based on an intervening change in controlling law and dismissed it for

lack of jurisdiction. See Fed. R. App. P. 4(a)(4)(B)(ii).

                                  II. Discussion

       The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a

petitioner to obtain a COA before he can appeal the denial of any final order in a

habeas corpus proceeding, including a motion for reconsideration under Rule

59(e). 28 U.S.C. § 2253(c)(1)(B); see also United States v. Cobb, 307 F. App’x

143, 144–45 (10th Cir. 2009). A COA requires the applicant to make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “To meet this standard, a petitioner must demonstrate that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve




      1
        If we instead interpret this portion of Parada’s pro se appeal as an
objection to the district court’s denial of his motion for reconsideration, we would
summarily dismiss these claims as a previously-presented habeas application
under 28 U.S.C. § 2244(b)(1).

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encouragement to proceed further.” Boutwell v. Keating, 399 F.3d 1203, 1211

(10th Cir. 2005) (internal quotation marks omitted).

      A. Ineffective Assistance of Counsel

      To prevail on his claims of ineffective assistance of counsel, Parada must

show that (1) his counsel’s performance fell below an objective standard of

reasonableness, Strickland v. Washington, 466 U.S. 668, 687–88 (1984), and (2)

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694. In analyzing the

first prong, we apply the strong presumption that “counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689.

      Parada identifies four instances of ineffective assistance. First, he contends

that his trial and appellate counsel failed to challenge the validity of the

indictment. Specifically, he argues his counsel should have asserted that the

government did not indict him within thirty days of his arrest as required by 18

U.S.C. § 3161(b). We agree with the district court that this claim is a nonstarter

on both Strickland grounds. This court has held that “a person is not ‘arrested in

connection with’ a charge, within the meaning of section 3161(b) of the Speedy

Trial Act, unless there is some coincidence of (1) a pending federal complaint and

(2) federal custody based on that complaint.” United States v. Bagster, 915 F.2d

607, 611 (10th Cir. 1990). Parada was in state custody between March 12, 2003

and May 21, 2003, the date on which he was indicted by a federal grand jury. As

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the district court observed, the thirty-day clock under § 3161(b) did not begin its

countdown until May 21, 2003, when the grand jury indicted Parada under federal

law. Accordingly, no reasonable jurist could even propose that Parada’s counsel

fell below an objectively reasonable standard in failing to challenge the

indictment under § 3161(b).

       Second, Parada alleges his counsel was ineffective for failing to appeal the

result of the trial on the grounds that the district court improperly admitted as

evidence inadmissible post-arrest statements of an alleged co-conspirator. Parada

argues that the statements were made after the alleged conspiracy ended, making

them hearsay not covered by the co-conspirator exemption in Federal Rule of

Evidence 801(d)(2)(E). Prior to his second trial, counsel for Parada filed a

motion in limine to, among other things, exclude the co-conspirator’s testimony

under Rule 801. The district court denied this motion and admitted the co-

conspirator’s statements. On appeal following the trial, counsel for Parada

challenged the credibility of the co-conspirator’s statements, but failed to

challenge their admissibility.

      Although criminal defendants are entitled to effective assistance of counsel

on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396–97 (1985), it is difficult

to establish a claim of ineffective assistance of appellate counsel based on a

failure to raise a particular issue on appeal. Upchurch v. Bruce, 333 F.3d 1158,

1163 (10th Cir. 2003). Parada presents no evidence establishing that his appellate

                                         -5-
counsel’s decision not to challenge the admissibility of his co-conspirator’s post-

arrest statements on appeal existed outside the “wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Indeed, many of the co-

conspirator’s supposedly inadmissible statements under Rule 801(d)(2)(E) are

independently admissible because they do not constitute hearsay under any

circumstances or they would otherwise fall under an exception contained within

the Federal Rules of Evidence. In any event, Parada has not sufficiently

identified any prejudice that he suffered as a result of his counsel’s allegedly

deficient performance. The district court’s denial of relief on this ground cannot

be reasonably questioned.

         Third, and relatedly, Parada contends that his counsel fell below an

objective standard of reasonableness when he failed to challenge several aspects

of the testimony of another co-conspirator during trial. Like his claims respecting

the first co-conspirator, Parada’s scattershot attempt to challenge his counsel’s

handling of this co-conspirator’s testimony is insufficient to establish either prong

of the Strickland standard, particularly prejudice. Simply put, Parada cannot meet

his burden to show that in the absence of his counsel’s alleged unprofessional

error, the outcome of his trial or appeal would have been different. There can be

no reasonable dispute that the district court correctly found that this claim lacks

merit.




                                           -6-
      Finally, Parada argues that his counsel performed ineffectively by failing to

challenge, either through an evidentiary hearing or on appeal, the government’s

information submitted pursuant to 21 U.S.C. § 851 during sentencing. Relying on

the record before it, the district court found that Parada’s contentions regarding

the inaccuracies in the § 851 report were conclusively unsubstantiated. For this

reason, Parada’s claim that his counsel’s failure to challenge the validity of the

§ 851 report amounted to ineffective representation lacks reasonable integrity.

      In sum, Parada’s ineffective-assistance-of-counsel claims on his appeal

from the denial of his § 2255 motion fail to establish a substantial showing of the

denial of a constitutional right necessary for this court to grant a COA.

      B. Second or Successive Habeas Petition

      In Parada’s Rule 59(e) motion, the district court properly construed his new

Sixth Amendment challenge as a second or successive habeas motion, United

States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006), and dismissed it for lack of

jurisdiction, In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). But we do not

end our analysis there. Construing Parada’s filings broadly, we consider his

appeal as a request to file a second habeas petition.

      To secure this court’s permission to file a second habeas petition, Parada

must establish that his claim is based on either new evidence or a new rule of

constitutional law made retroactive by the Supreme Court. 28 U.S.C. § 2255(h).




                                         -7-
      Parada cannot satisfy either requirement. He has never claimed that he has

discovered new evidence. Instead, he argues under § 2255(h)(2) that the Supreme

Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), gives him

the right to a new trial. Alleyne held that any fact that increases the mandatory

minimum sentence constitutes an element of the crime that must be found by a

jury beyond a reasonable doubt. Id. at 2155. But we have held, however, that,

while Alleyne “actually does set forth a new rule of constitutional law,” it has not

“been made retroactive to cases on collateral review.” In re Payne, 733 F.3d

1027, 1029 (10th Cir. 2013) (internal quotation marks omitted); see also Simpson

v. United States, 721 F.3d 875, 876 (7th Cir. 2013). Thus, Alleyne does not

satisfy § 2255(h)(2).

                                 III. Conclusion

      Construing Parada’s appellate filing as a mixed appeal, we DENY his

application for a COA and DISMISS the appeal of his original § 2255 motion and

DENY authorization to file a second or successive habeas petition.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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