F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 6 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-6120
v. D.C. Nos. 99-CV-102-M
and CR-97-17-M
HAROLD EUGENE COMBS, (W.D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. 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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Harold Eugene Combs seeks a certificate of appealability (COA)
from this court in order to appeal the district court’s order denying relief in his
motion brought pursuant to 28 U.S.C. § 2255. We deny Mr. Combs’ application
and dismiss the appeal.
To be entitled to a COA, Mr. Combs must make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this
showing by establishing 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 will grant relief if we determine that “the judgment was rendered
without jurisdiction, or that the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255.
Mr. Combs was charged along with four co- defendants in a twenty-two
count indictment . The jury found him guilty of conspiracy to possess with intent
to distribute and distribution of cocaine base, interstate transportation in aid of
racketeering, use of a telephone to further the conspiracy, and money laundering.
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He was sentenced to 360 months’ imprisonment and five years’ supervised
release.
Mr. Combs filed an appeal in which he argued he was denied a fair trial
and deprived of due process due to perjured testimony from government
witnesses. This court affirmed his conviction. United States v. Combs, No.
97-6219, 1998 WL 17767 (10th Cir. Jan. 20, 1998).
Mr. Combs filed this motion seeking relief under § 2255 in district court in
which he alleged he had received ineffective assistance of trial and appellate
counsel because trial counsel had failed to object to (1) cooperating witness
testimony, (2) jury instruction No. 30 on interdependence, and (3) his sentence
which exceeded the sentencing guideline range. He contended that appellate
counsel was ineffective because he had failed to raise those issues. Mr. Combs
then moved to amend his complaint to add several claims based on Apprendi v.
New Jersey, 530 U.S. 466 (2000) . The district court granted the motion, but
denied relief holding that Mr. Combs had failed to show ineffective assistance of
counsel and that Apprendi is not retroactive to habeas petitions.
On appeal, Mr. Combs argues only that the district court erred in denying
his Apprendi claims. He maintains the trial court improperly imposed a sentence
beyond the statutory maximum and removed essential elements from the jury’s
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province because the jury was not instructed to determine the type and quantity
of drugs involved.
This court has held that Apprendi is not retroactive to initial § 2255
motions. United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied ,
123 U.S. 388 (2002). Reasonable jurists could not debate whether his § 2255
“petition should have been resolved in a different manner” or whether “the issues
presented were adequate to deserve encouragement to proceed further.” Slack,
529 U.S. at 484 (internal quotation marks omitted). Consequently, Mr. Combs
has failed to make a “substantial showing of the denial of a constitutional right”
and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).
We deny a COA and DISMISS this appeal. Mr. Combs’ motion to proceed
in forma pauperis is GRANTED. The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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