FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 4, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-5012
v. (D.C. Nos. 4:08-CV-00110-CVE-FHM
and 4:03-CR-00071-CVE-1)
BILLY JOE HILL, (N.D. Okla.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Billy Joe Hill, a convicted felon, pawned a shotgun. When he later tried to
reacquire it, he indicated on a firearms transaction record that he had no felony
convictions. He was later arrested and tried before a jury, where he represented
himself with stand-by counsel. The jury convicted him of one count of being a
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one
count of making a false statement to obtain a firearm, in violation of 18 U.S.C.
§ 922(a)(6). A third count, which arose from an earlier arrest for possession of a
similar firearm, was dismissed after the jury failed to reach a verdict. Mr. Hill
was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(ACCA), and the 2004 version of the United States Sentencing Guidelines,
receiving concurrent sentences of 212 months of imprisonment on count one and
120 months on count two, and concurrent five- and three-year terms of supervised
release.
After we affirmed his conviction and sentence on direct appeal, see United
States v. Hill, 200 F. App’x 783 (10th Cir. 2006), Mr. Hill filed a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He advanced thirty
grounds for relief, many couched in terms of ineffective assistance of appellate
counsel for failing to raise them on direct appeal. The district court grouped the
grounds into nine categories: (1) the court compelled Mr. Hill to proceed without
counsel; (2) the court lacked subject matter jurisdiction; (3) the court improperly
enhanced his sentence using his prior convictions; (4) he was denied his right to a
speedy trial; (5) there was insufficient evidence, or the government used false
evidence, to convict him; (6) he was denied his right to a fair trial; (7) appellate
counsel failed to communicate with him; (8) he was subject to an unconstitutional
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search with respect to count three; and (9) trial counsel and the court failed to
advise him of his possible sentence.
In a detailed and thorough decision, the district court denied relief. The
court concluded that Mr. Hill had knowingly, voluntarily, and intelligently
decided to proceed at trial without counsel after his court-appointed attorney
moved to withdraw because she could not ethically present certain evidence
Mr. Hill wished to use. Because Mr. Hill’s claim that he was forced to proceed
pro se at trial was meritless, the court concluded that appellate counsel was not
ineffective for failing to raise it on direct appeal. See United States v. Cook,
45 F.3d 388, 393 (10th Cir. 1995) (“If the omitted issue is without merit,
counsel’s failure to raise it does not constitute constitutionally ineffective
assistance of counsel.”) (quotation omitted). The court made a similar
determination with respect to many of the other grounds Mr. Hill raised—that the
grounds were meritless, so there was no ineffective assistance of counsel for
failing to raise the ground on appeal. The court also ruled that a number of
grounds for relief not couched in terms of ineffective assistance of appellate
counsel were procedurally barred because they could have been raised on direct
appeal, and Mr. Hill had failed to show cause for that failure and prejudice or a
fundamental miscarriage of justice. See United States v. Cox, 83 F.3d 336, 341
(10th Cir. 1996). The court further determined that some of Mr. Hill’s claims
were barred because this court had already considered and decided them adversely
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to Mr. Hill, and that other claims failed because they were either vague or
conclusory.
In order to appeal the district court’s decision, Mr. Hill must obtain a
certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(B). The issuance of a
COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255
motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). For those claims the district court
denied on the merits, Mr. Hill must demonstrate “that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).
For those claims the district court denied on a procedural ground, Mr. Hill must
show “that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and . . . whether the district
court was correct in its procedural ruling.” Id.
Having reviewed the record and the controlling law, and liberally
construing Mr. Hill’s pro se filings, see Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008), we conclude that, for substantially the same reasons set forth by
the district court in its January 22, 2010, Opinion and Order, Mr. Hill has not met
the requirements for a COA. The district court’s analysis was sound and
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well-reasoned, and we need not reiterate it. However, we briefly address one
misunderstanding that pervades Mr. Hill’s appellate filings.
Under Okla. Stat. tit. 21, § 51.1B, a felony conviction that is more than ten
years old may not be used to enhance a later felony sentence. Mr. Hill claims that
this state statute forecloses the use of a 1975 state conviction for armed robbery
as one of the three predicate felonies necessary to enhance his federal sentence
under the ACCA. But the Oklahoma statute has no bearing on the use of that
conviction to enhance a sentence for a federal crime under the ACCA. The
ACCA is federal law and contains no temporal limitation on predicate felonies, as
noted in United States v. Lujan, 9 F.3d 890, 893 (10th Cir. 1993), where we
rejected the argument that “prior [state] convictions should be eliminated from
consideration under the ACCA because they are ancient.” And although
§ 4A1.2(e) of the Sentencing Guidelines contains a ten-year limitation on prior
sentences analogous to the Oklahoma statute, it is not applicable to sentence
enhancements under the ACCA. See U.S. Sentencing Guidelines Manual § 4B1.4
appl. n.1 (2004); Lujan, 9 F.3d at 893.
For the foregoing reasons, we DENY Mr. Hill’s application for a certificate
of appealability and DISMISS this appeal.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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