F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-5076
v. (D.C. No. 01-CV-336-H)
(N.D. Okla.)
MALCOLM EUGENE MOORE,
Defendant - Appellant.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
Defendant-appellant Malcolm Moore seeks a certificate of appealability
(COA) to appeal the district court’s decision denying him 28 U.S.C. § 2255 relief
from his three convictions for bank robbery, and aiding and abetting bank
robbery, see 18 U.S.C. §§ 2, 2113, and his three convictions for using a firearm
during the commission of a crime of violence, and aiding and abetting this use of
a firearm, see 18 U.S.C. §§ 2, 924(c). On appeal, Moore argues that 1) the
district court erred in imposing consecutive sentences for his three firearm
convictions under 18 U.S.C. § 924(c) 1; and 2) the indictment failed to specify
1
Moore now argues that Blakely v. Washington, 124 S. Ct. 2531
(continued...)
whether Moore was charged as an aider and abettor under 18 U.S.C. §2(a) or
§ 2(b). 2
Moore must obtain a COA to pursue this appeal. See 28 U.S.C.
§ 2253(c)(1)(B). To be entitled to a COA, he must make a “substantial showing
of the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing,
Moore must establish that “reasonable jurists could debate whether (or for that
matter, agree that) the petition should have been resolved [by the district court] in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84
1
(...continued)
(2004), supports this claim for relief. The Supreme Court decided Blakely just
after the district court denied Moore § 2255 relief. Because Moore’s Blakely
argument was not before the district court when it considered his § 2255 motion,
we will not address it here. See United States v. Mora, 293 F.3d 1213, 1218 (10th
Cir. 2002) (noting, in § 2255 proceeding, that appellate court ordinarily does not
consider issues raised for first time on appeal).
2
In his § 2255 motion, Moore asserted additional claims, alleging his
trial counsel was ineffective for failing to object to consecutive sentences for two
of Moore’s 18 U.S.C. § 924(c) convictions, the indictment’s failing to specify
whether Moore was charged under 18 U.S.C. § 2(a) or § 2(b), the government’s
withholding evidence, a government’s witness’s perjured testimony, and the
government’s failing to prove that the banks that were robbed were federally
insured. Moore further alleged that the government falsified evidence it
presented against him. Moore, however, does not reassert these claims now on
appeal.
-2-
(2000) (quotations omitted). Moore has failed to make that showing. For
substantially the reasons relied upon by the district court, therefore, we DENY
Moore a COA and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-