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

                             FOR THE TENTH CIRCUIT                         March 23, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-5084
                                               (D.C. Nos. 4:14-CV-00745-GKF-PJC and
GERMAIN HARRIS,                                        4:12-CR-00037-GKF-1)
                                                             (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Germain Harris seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2255 motion.1 We deny a COA and dismiss

the appeal.

                                           I

      As part of a murder investigation, police witnessed a suspect enter and exit an

auto shop owned by Harris. Police obtained a search warrant based on an affidavit


      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
        Harris filed a notice of appeal from the district court judgment. Because he
may not appeal from a final order in a § 2255 proceeding without a COA,
§ 2253(c)(2), and because the district court did not grant a COA, we construe Harris’
notice of appeal as a request for a COA. Fed. R. App. P. 22(b)(2).
stating that a firearm used in the murder or keys to the getaway vehicle may be

located inside the shop. The ensuing search did not uncover evidence related to the

murder. But the police did find cocaine, cocaine base, items used to manufacture and

distribute cocaine base, a pistol, and ammunition. Harris was indicted on several

charges. He moved to suppress evidence found during the search, arguing the

officer’s probable cause affidavit did not provide a sufficient nexus between the

alleged criminal activity and the shop. The court denied his motion. A jury

convicted Harris of drug manufacture, possession, and distribution charges, and of

being a felon in possession of a firearm. He was sentenced to 180 months’

imprisonment. Harris appealed and this court affirmed. United States v. Harris, 735

F.3d 1187, 1194 (10th Cir. 2013). Harris then filed a motion for relief under § 2255,

which the district court denied. This request for a COA followed.

                                           II

      We may issue a COA to appeal a final order denying § 2255 relief “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). A “substantial showing” exists if “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

      Harris advances claims of ineffective assistance of trial and appellate counsel.

To prevail, he must make a substantial showing that his counsel “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

                                          -2-
the Sixth Amendment” and that “ the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is

prejudicial if there is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.

      Harris complains the district court should have granted an evidentiary hearing

so that he could demonstrate trial counsel failed to pursue testimony from an

exculpatory witness. He claims the witness would have testified that Harris was not

aware of the contraband or drug activities occurring in the auto shop, and identified

another individual responsible for that contraband. Harris fails to directly identify

the witness who would provide this testimony, but construing his pro se pleadings

liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), it appears likely

Harris is referring to Alonzo Johnson—the suspect that entered the auto shop leading

police to seek the search warrant. However, the district court determined that trial

counsel’s decision not to interview Johnson was reasonable given the circumstances

as they existed at the time of the challenged conduct. In his request for a COA,

Harris offers no argument challenging this determination as erroneous, nor does he

explain how an evidentiary hearing would change the outcome.2 Thus, he has not


      2
         In a seemingly related argument, Harris suggests trial counsel failed to
conduct relevant discovery and failed to interview a witness whose post-trial affidavit
demonstrates a reasonable probability that his testimony would have changed the
outcome of the trial. However, Harris does not identify what evidence counsel
should have pursued. Nor does he indicate what the witness’s affidavit states, what
the testimony would have been, or why it likely would have changed the outcome of
trial. Without more information, we are unable to conclude that counsel’s failure to
investigate was deficient or prejudicial. Similarly, Harris argues that appellate
                                           -3-
made a substantial showing that counsel was ineffective for failing to interview

Johnson.

      Harris also contends appellate counsel was ineffective for failing to object to

the trial court’s application of the Armed Career Criminal Act (“ACCA”). The court

concluded ACCA applied based on three drug convictions for drug sales Harris made

to undercover officers on three separate occasions over a ten day period.3 Harris

argues that these convictions all resulted from the same “scheme and plan,” and thus

should have been treated as one offense for sentencing purposes. For support, Harris

invokes United States v. Mohammed, 150 F. App’x 887 (10th Cir. 2005)

(unpublished), in which the court addressed whether prior convictions are “related”

under U.S.S.G. § 4A1.2. Mohammed, 150 F. App’x at 890. However, in United

States v. Delossantos, 680 F.3d 1217 (10th Cir. 2012), we observed that § 4A1.2 is

irrelevant in the ACCA context. Delossantos, 680 F.3d at 1220-21 n.3. We further

held that multiple drug sales to undercover agents may be counted as separate

convictions so long as the defendant “had a meaningful opportunity to cease his

illegal conduct.” Id. at 1220. The district court held that Harris had the requisite

meaningful opportunity between his offenses, and he does not argue to the contrary


counsel filed the direct appeal before receiving a full trial transcript. But he does not
explain how obtaining the full trial transcript before filing would have changed the
outcome.
      3
        Harris also argued below that his trial counsel was ineffective for failing to
object to ACCA application. But, as the district court noted, Harris’ trial counsel did
object to Harris’ classification as an armed career criminal, and the trial court
rejected the very argument Harris made in his § 2255 motion.
                                           -4-
in his request for a COA. Thus, he has not made a substantial showing that appellate

counsel was ineffective for failing to challenge the sentencing calculation on direct

appeal.

      Finally, Harris argues the district court improperly failed to order his trial or

appellate counsel to respond to allegations raised in Harris’ sworn affidavit. He

contends that absent a response, his allegations must be deemed admitted under Fed.

R. Civ. P. 36. Even if we were to apply Rule 36 to this § 2255 proceeding, see

§ 2255 Rule 12, and construe Harris’ affidavit as a request for admission, Harris’

argument fails because the district court did consider a responsive affidavit from

Harris’ trial counsel. Moreover, Harris does not identify what sworn statements the

district court allegedly discredited. Thus, Harris has not made a substantial showing

that he was denied a constitutional right.

                                             III

          We DENY a COA and DISMISS the appeal. Harris’ motion to proceed in

forma pauperis is GRANTED.




                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




                                             -5-
