                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 8, 2014
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                        No. 14-6076
                                              (D.C. Nos. 5:13-CV-00247-D and
 KEITH ALLEN HENDRIX,
                                                    5:09-CR-00189-D-1)
                                                        (W.D. Okla.)
       Defendant-Appellant.



           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      After pleading guilty to unlawful drug and firearm possession, Keith

Hendrix sought post-conviction relief under 28 U.S.C. § 2255 on the ground that

his attorney rendered ineffective assistance. The district court rejected this claim

and denied Mr. Hendrix’s request for a certificate of appealability (COA). Mr.

Hendrix responded with a motion to alter or amend the district court’s judgment

pursuant to Fed. R. Civ. P. 59(e). The district court, however, saw this as a second

or successive § 2255 petition, dismissed it for lack of jurisdiction, and declined to

transfer the petition to this court. See 28 U.S.C. §§ 2244(b)(3), 2255(h).


       *
         This order is not binding precedent except under the doctrines of law of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.
      Now Mr. Hendrix asks us for a COA so he can appeal both of the district

court’s rulings. We may grant that request only if Mr. Hendrix makes “a

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

§ 2253(c)(2). And to do that Mr. Hendrix must show that reasonable jurists could

debate (or agree on) a different resolution of his § 2255 petition or the merit of

further proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      This much Mr. Hendrix has not done. To show ineffective assistance, he

must demonstrate that his attorney performed deficiently and that he was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Mr. Hendrix argues that his attorney performed inadequately because if the

attorney had further investigated and discussed the facts of his case he would have

seen there was no basis for the firearm charge lodged against him. According to

Mr. Hendrix, that’s because the statute only punishes firearm possession or use “in

furtherance of” drug trafficking — and because the relevant firearms in this case

were squirreled away, unloaded, in a night stand drawer that contained only drugs

that weren’t meant for sale (though drugs that were meant for sale were found on a

table in the same room). R. at 24.

      But even assuming for argument’s sake that the attorney’s lack of

investigation or communication amounted to constitutionally deficient

performance, Mr. Hendrix still hasn’t made a debatable showing of prejudice. To

be sure, inadequate advice in connection with plea negotiations causes prejudice

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when it induces a guilty plea from a defendant who otherwise would have insisted

on trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[T]he defendant must

show that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.”). And also

when a more favorable deal could have been obtained from the prosecution

without the deficient advice. See Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)

(“[W]here a plea offer has lapsed or been rejected” prejudice requires “a

reasonable probability that the end result of the criminal process would have been

more favorable by reason of a plea to a lesser charge or a sentence of less prison

time.”).

      In this case, though, nothing in the record nor the facts Mr. Hendrix alleges

now indicates he would have insisted on trial or obtained a more favorable deal by

fighting the § 924(c) charge more vigorously. For one thing, even taking the facts

as he says they were, it’s hardly obvious the government would have dropped the

§ 924(c) charge or that after a trial he would have been acquitted. Cf. United

States v. Bobadilla-Pagán, 747 F.3d 26, 35-36 (1st Cir. 2014) (“[T]his court [has]

affirmed a conviction for possession ‘in furtherance of’ a drug trafficking crime

where the defendant kept an unloaded gun under a bed in a drawer that was

blocked by a duffel bag, a trash can, and box of books, even though there was no

ammunition in the house and the drugs were stored in a separate room.”). Beyond

even that, it’s undisputed that in exchange for Mr. Hendrix’s guilty plea the

                                         -3-
prosecution dropped a separate charge for unlawfully possessing a firearm as a

felon. And Mr. Hendrix’s five-year sentence under § 924(c) could easily have

seemed a good exchange for not being exposed to punishment for the possession as

a felon offense. After all, if Mr. Hendrix had been convicted of knowingly

committing that offense, under the relevant statutes he could have been sentenced

to as many as ten years in prison. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Given

all this, Mr. Hendrix hasn’t raised a reasonable probability that he would have

gone to trial or obtained a better deal with better legal representation. And so he

hasn’t made a debatable showing of prejudice for his ineffective assistance of

counsel claim. 1

      Next Mr. Hendrix seeks to challenge the district court’s ruling that his Rule

59(e) motion to alter or amend the judgment was in substance a second or

successive § 2255 petition. It’s settled in this circuit that a Rule 59(e) motion that

simply “asserts or reasserts a federal basis for relief from the petitioner’s

underlying conviction is actually a second or successive . . . § 2255 motion.”

United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (internal quotation

marks omitted). In this case, Mr. Hendrix’s Rule 59(e) motion faulted the district


       1
         Neither may we issue a COA because the district court refused to hold an
evidentiary hearing. Mr. Hendrix’s claim fails even assuming the relevant facts
are just as he alleges. See, e.g., United States v. Gonzalez, 596 F.3d 1228, 1244
(10th Cir. 2010) (“Having carefully examined the record on appeal, we readily
conclude that there were no relevant, disputed issues of fact that needed to be
resolved, and in turn no need for an evidentiary hearing.”).

                                         -4-
court for not accepting his original arguments on the prejudice prong of the

ineffective assistance inquiry. See Supplemental R. at 12-13. Reasonable jurists

wouldn’t debate the district court’s conclusion that this amounted to an attempt to

re-litigate a § 2255 claim that had already been denied. See Spitznas v. Boone,

464 F.3d 1213, 1215-16 (10th Cir. 2006).

      Moreover, even construing Mr. Hendrix’s filings broadly, we see no other

potential grounds for any relief. We cannot fault the district court for not

exercising its discretion to transfer the second or successive § 2255 motion to this

court because, as we have already seen, Mr. Hendrix’s ineffective assistance claim

lacks merit. See United States v. Simpson, 525 F. App’x 733, 735 (10th Cir.

2013). Neither could we entertain a second or successive motion in any event:

Mr. Hendrix’s arguments aren’t based on newly discovered evidence or a new rule

of constitutional law. See 28 U.S.C. § 2255(h); United States v. Reyes-Soto, 556

F. App’x 675, 677 (10th Cir. 2014).

      Mr. Hendrix’s application for a COA is denied and this appeal is dismissed.

Mr. Hendrix’s motion to proceed in forma pauperis is also denied and he is

reminded that he must pay his filing fee in full.


                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge



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