Hunter v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-13701 ELEVENTH CIRCUIT
FEBRUARY 24, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket Nos. 06-22555-CV-UUB,
03-20712-CR-UUB
DEMARICK HUNTER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(February 24, 2009)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents the issue whether a criminal defendant who was
erroneously sentenced has made “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Demarick Hunter is a federal

prisoner serving a sentence of imprisonment of 188 months for being a felon in

possession of a firearm, 18 U.S.C. § 924(g). He moved to vacate his sentence, 28

U.S.C. § 2255, and the district court denied his motion. Hunter then sought a

certificate of appealability from this Court, and we denied the application. The

Supreme Court vacated our order denying the certificate of appealability and

remanded for reconsideration in the light of its decision in Begay v. United States,

553 U.S. __, 128 S. Ct. 1581 (2008), which held that driving under the influence

was not a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Because Hunter has failed to make “a substantial showing of the denial of a

constitutional right,” we deny his motion for a certificate of appealability.

Hunter requests a certificate of appealability for two issues that are relevant

to the decision of the Supreme Court in Begay. First, Hunter contends that his due

process rights were violated when he was sentenced as an armed career criminal

based on two prior convictions for carrying a concealed weapon. Second, Hunter

argues that his appellate counsel was ineffective for failing to object to the use of

his prior firearms convictions in determining that he was subject to an armed career

criminal enhancement. Neither argument involves a substantial showing of the

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denial of a constitutional right.

Before the decision of the Supreme Court in Begay, we held that carrying a

concealed weapon was a violent felony under the Armed Career Criminal Act,

United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996), and was a “crime of

violence” under the Sentencing Guidelines, United States v. Gilbert, 138 F.3d

1371, 1372 (11th Cir. 1998). After Begay, a panel of this Court determined that

these prior panel precedents had been undermined to the point of abrogation by the

decision of the Supreme Court. United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008). This Court also stated, in dicta, that carrying a concealed weapon

is not a violent felony under the Armed Career Criminal Act. Id.

Although Begay provides good reason to conclude that Hunter was

erroneously sentenced as an armed career criminal, a sentencing error alone does

not amount to “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Before Congress enacted the Antiterrorism and Effective

Death Penalty Act, id., the decision of the Supreme Court in Barefoot v. Estelle,

463 U.S. 880, 103 S. Ct. 3383 (1983), provided the standard for granting a

certificate of probable cause, which required a petitioner to make a “substantial

showing of the denial of a federal right.” Id. at 893, 103 S. Ct at 3394 (internal

quotation marks omitted). The Antiterrorism and Effective Death Penalty Act

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substituted the narrower term “constitutional” for the term “federal”:

Under AEDPA, a COA may not issue unless “the applicant has made
a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c). Except for substituting the word “constitutional”
for the word “federal,” § 2253 is a codification of the CPC standard
announced in Barefoot v. Estelle. Congress had before it the meaning
Barefoot had given to the words it selected; and we give the language
found in § 2253(c) the meaning ascribed it in Barefoot, with due note
for the substitution of the word “constitutional.”

Slack v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1603 (2000) (citation

omitted). “The term ‘constitutional right’ means something very different from the

term ‘federal right,’ and because we must assume Congress ‘means in a statute

what it says,’ Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct.

1146, 1149–50 (1992), we give effect to the change.” United States v. Cepero, 224

F.3d 263, 264 (3d Cir. 2000) (en banc). We may issue a certificate of appealability

only where a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c) (emphasis added).

Although Hunter presents his arguments for a certificate of appealability as

involving a denial of due process and ineffective assistance of counsel, Hunter’s

sentencing error did not give rise to a violation of the Constitution. Hunter was

afforded due process at his sentencing hearing, and sentencing errors “are generally

not cognizable in a collateral attack.” Buggs v. United States, 153 F.3d 439, 443

(7th Cir. 1998); see also Cepero, 224 F.3d at 267–68; United States v. Segler, 37

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F.3d 1131, 1134 (5th Cir. 1994). To prevail on a claim of ineffective assistance of

counsel, Hunter must prove that “‘no competent counsel would have taken the

action that his counsel did take.’” Ford v. Hall, 546 F.3d 1326, 1333 (11th Cir.

2008) (quoting Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000)

(en banc)). Hunter cannot satisfy that burden because, when his original sentence

and direct appeal occurred, our precedent, Hall, 77 F.3d 398, foreclosed the

argument that carrying a concealed weapon was not a violent felony under the

Armed Career Criminal Act, 18 U.S.C. § 924(e).

Hunter’s application for a certificate of appealability is DENIED.

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