FILED
United States Court of Appeals
Tenth Circuit
August 25, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-3144
v. (D.C. Nos. 5:10-CV-04123-SAC and
5:07-CR-40117-SAC-1)
JAMES NELSON FULTON, (D. Kan.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Petitioner-Appellant James Fulton, a federal inmate appearing pro se, seeks
to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion. See
United States v. Fulton, Nos. 07-40117-01-SAC, 10-4123-SAC, 2011 WL
1484174 (D. Kan. April 19, 2011). Mr. Fulton is currently serving a 120-month
sentence following his conviction on cocaine possession and distribution charges.
This court affirmed his conviction and sentence on direct appeal in 2009. See
United States v. Fulton, 344 F. App’x 477 (10th Cir. 2009) (unpublished). His
primary argument on direct appeal was that the government entrapped him with
respect to the drug transactions underlying the indictment.
In his § 2255 motion, Mr. Fulton maintains his counsel was ineffective (1)
in failing to object to a lack of compliance with 21 U.S.C. § 851 at sentencing and
(2) in not raising or arguing entrapment with respect to the sentence imposed. In
a thorough memorandum opinion and order, the district court rejected both
arguments. Fulton, 2011 WL 1484174, at *4-6, *8. Because we conclude that
Mr. Fulton has not made the requisite showing, we deny his request for a
certificate of appealability (“COA”) and dismiss the appeal.
In his application for a COA, Mr. Fulton reasserts his claims that counsel
was ineffective for failure to object to a deficient § 851 information in the trial
court and on appeal, and for failure to assert a sentencing-entrapment argument.
A COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C § 2253(c)(2). This standard requires
an applicant to show 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
and citations omitted).
Reasonable jurists could not debate the district court’s determination that
the information complied with § 851. The statute requires “stating in writing the
previous convictions to be relied upon” and provides a procedural mechanism to
notify the defendant of the allegation of prior convictions and to allow him an
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opportunity to challenge those convictions. 21 U.S.C. § 851(a)-(c);
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2582 (2010). There is no
requirement that the statutory penalty section for the underlying offense be listed,
let alone the length of an enhanced sentence. 21 U.S.C. § 851(a)(1); accord
United States v. Morales, 560 F.3d 112, 114 (2d Cir. 2009) (“Section 851 does
not require that a prior felony information identify the statutory basis of a
proposed enhancement or its length . . . .”). To the extent that Mr. Fulton argues
that the requirements of § 851 are jurisdictional and, therefore, the court’s
noncompliance with the § 851 colloquy procedure deprived it of jurisdiction to
enhance his sentence, his position is contrary to the law of the circuit. United
States v. Davis, 636 F.3d 1281, 1295 n.4 (10th Cir. 2011) (“Failure to file an
information under § 851 does not deprive the district court of jurisdiction to
impose a sentence.” (citation omitted)); United States v. Flowers, 464 F.3d 1127,
1129-30 (10th Cir. 2006). The district court’s conclusion that Carachuri-Rosendo
did not elevate the procedural requirements of § 851 to jurisdictional prerequisites
is not reasonably debatable. Fulton, 2011 WL 1484174, at *6.
Nor is the district court’s conclusion that Mr. Fulton cannot show
ineffective assistance of counsel in regard to his sentencing-entrapment argument
because he cannot demonstrate prejudice. Because Mr. Fulton had a prior felony
drug conviction, 120 months was the mandatory minimum term of imprisonment
for count three, 21 U.S.C. § 841(b)(1)(B). Accordingly, the sentencing court
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lacked discretion to impose a lower sentence, and the court of appeals could not
alter his sentence on this theory. Fulton, 2011 WL 1484174, at *8.
Accordingly, we DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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