                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     June 20, 2008
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,                       No. 08-3039
          v.                                 (D.C. Nos. 2:07-CV-02519-JWL and
                                                    2:04-CR-20132-JWL)
 SHAKIR ABDUSH-SHAKUR,                                     (D. Kan.)
 formerly known as Leonard Scott
 Cunningham,
               Defendant–Appellant.


                                      ORDER *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.


      Defendant, a federal prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2255 habeas petition. In

December 2003, a federal indictment against Defendant was dismissed after the

government filed a motion to dismiss pursuant to Rule 48 of the Federal Rules of

Criminal Procedure, based on the prosecutor’s illness. Defendant was

subsequently reindicted on the same charges and found guilty of attempting to

murder a corrections officer and possessing a handmade knife as a prison inmate.



      *
        This order is not binding precedent, except under the doctrines of law of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.
We affirmed his conviction on direct appeal. United States v. Abdush-Shakur,

465 F.3d 458 (10th Cir. 2006).

      In his § 2255 motion, Defendant claimed that the trial court refused to

decide whether to dismiss the first indictment with or without prejudice, that this

refusal caused his Fifth Amendment double jeopardy rights to be violated by his

reindictment, and that he received ineffective assistance of counsel when his

attorney failed to object to the court’s decision and did not claim on appeal that

the first indictment had in effect been rejected with prejudice. 1 All of these

claims were thus premised on Defendant’s basic argument that the government

could not reindict Defendant when the indictment had not been dismissed without

prejudice.

      However, the district court determined that the trial court in fact dismissed

the first indictment without prejudice and therefore that Defendant’s rights were

not violated by his subsequent reindictment. Both the trial court’s order

dismissing the indictment and our decision on direct appeal indicated that the first

indictment was dismissed without prejudice. Although Defendant argued that

several passages in the transcript from the hearing demonstrated that the trial

court believed it did not need to decide the issue of prejudice when it dismissed

the indictment, the district court concluded that this language merely explained

      1
        Defendant also raised a claim of prosecutorial misconduct, which the
court found unsupported by the record and without merit even as alleged. On
appeal, Defendant does not seek to challenge the court’s dismissal of this claim.

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that the trial court would grant the dismissal motion without prejudice but that the

issue of prejudice could be revisited upon reindictment.

      The district court also concluded that, even if the facts were as Defendant

alleged, the trial court’s dismissal of the indictment without discussion of

prejudicial effect must be presumed to be without prejudice. “The rule is that

when an indictment is dismissed before trial upon the government’s motion under

Rule 48(a) of the Federal Rules of Criminal Procedure, the dismissal is without

prejudice to the government’s right to reindict for the same offense, unless the

contrary is expressly stated.” United States v. Ortega-Alvarez, 506 F.2d 455, 458

(2d Cir. 1974); see also United States v. Stoker, 522 F.2d 576, 580 (10th Cir.

1975) (finding dismissal pursuant to Rule 48 to be without prejudice where

dismissal was based on non-constitutional ground and order did not specifically

indicate that dismissal was with prejudice).

      To obtain a certificate of appealability, Defendant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, Defendant 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) (internal quotation marks omitted).

      We have carefully reviewed Defendant’s brief, the district court’s

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disposition, and the record on appeal. Nothing in these materials convinces us

that reasonable jurists could debate whether the district court erred in dismissing

the petition. Accordingly, for substantially the reasons set forth by the district

court, we DENY Defendant’s request for a certificate of appealability and

DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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