F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 12, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Respondent-Appellee, No. 07-5034
(Northern District of Oklahoma)
v. (D.C. Nos. 06-CV-00361-HDC and
03-CR-102-HDC)
LEW IS ELSWO R TH M cN A CK,
Petitioner-A ppellant.
OR DER *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
Lewis Elsworth M cNack, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) that would allow him to appeal from the district
court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28
U.S.C. § 2253(c)(1)(B). Because we conclude that M r. M cNack has failed to
make “a substantial showing of the denial of a constitutional right,” w e deny his
request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Background
On September 29, 2003, M r. M cNack pleaded guilty to bank robbery in
violation of 18 U.S.C. § 2113(a). Under the plea agreement M r. M cNack waived
his rights to appeal, including the right to file habeas corpus petitions under 28
U.S.C. § 2255. He also stipulated that he was a career criminal under § 4B1.1 of
the U nited States Sentencing G uidelines.
On January 6, 2004, M r. M cNack was sentenced to 178 months
imprisonment, followed by three years of supervised release. On January 20,
2004, he filed notice of appeal to the Tenth Circuit, despite his waiver of
appellate rights. Counsel for M r. M cNack filed an Anders brief, see Anders v.
California, 386 U.S. 738 (1967), asserting there were no appealable issues and
withdrawing from the case. W e subsequently affirmed the conviction and
sentence. M r. M cNack then filed a pro se § 2255 petition in district court, which
was denied. He has now applied for a COA in this Court.
Discussion
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. Id. § 2253(c)(1)(B). A
COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). To make such a showing, a
petitioner must demonstrate that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
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presented were adequate to deserve encouragement to proceed further.” Slack v.
M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted).
M r. M cNack raises two claims in his application for COA. First, he claims
counsel was ineffective for refusing to object to inaccuracies in his presentence
report. Second, he contends that his due process rights w ere violated because his
presentence report was incorrect when he w as sentenced, and that if it were
corrected, he would not be classified as a career criminal. We can address both
claims simultaneously. Even assuming arguendo there is an inaccuracy in the
presentence report, it would not have any impact on M r. M cNack’s 178-month
sentence. Therefore, the existence of any such inaccuracy and the failure to
object to it w ould amount at most to harmless error.
M r. M cNack has an extensive history of run-ins with the law. Starting at
age 18, he accumulated over ten convictions for auto theft, larceny of automobile,
failure to comply, knowingly concealing stolen property, possession of stolen
vehicle after former felony conviction, breaking and entering, burglary, theft by
taking, theft by receiving stolen property, possession of firearm after felony
conviction, and escape. The district court treated two of these convictions,
burglary and escape, as crimes of violence under U.S.S.G. § 2K2.1.
As the district court stated, the presentence report was corrected after
sentencing in one respect: to show that M r. M cNack’s Georgia burglary sentences
were to run concurrently rather than consecutively. M r. M cNack claims that this
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inaccuracy at sentencing violated his due process rights. This change, however,
had no effect on M r. M cN ack’s impending sentence, as he still retains two
convictions for violent felonies.
Burglary is specifically mentioned in the Guidelines as a crime of violence.
See U.S. Sentencing Guidelines M anual § 4B1.2(a)(2) (2003) (“The term “crime
of violence” means any offense . . . that . . . is burglary . . . .”). The Guidelines
do not specifically classify escape as a violent crime, and if this were a question
of first impression we might well question whether all escapes fall within that
category. But this and other courts have held “that an escape conviction ‘by its
nature . . . is properly characterized as a crime of violence,’” regardless of
particular circumstances. United States v. M itchell, 113 F.3d 1528, 1533 (10th
Cir. 1997) (quoting United States v. Gosling, 39 F.2d 1140, 1142 (10th Cir.
1994)). Accord, United States v. Gay, 251 F.3d 950, 952, 954-55 (11th Cir. 2001)
(citing cases from the 5th, 6th and 8th Circuits agreeing with this rule). Quite
simply, M r. M cNack’s counsel did not object to the defendant’s classification as a
career criminal because such an objection would have been futile. W e therefore
conclude that M r. M cNack has failed to make a “substantial showing” that his
Sixth Amendment or due process rights were violated.
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Conclusion
W e D EN Y M r. M cNack’s request for a COA and DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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