Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cr-00407-REB

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211 Fed.Appx. 753 211 Fed.Appx. 753, 2007 WL 30032 (C.A.10 (Colo.)) (Cite as: 211 Fed.Appx. 753)

Deposit U.S. v. Yeomans C.A.10 (Colo.),2007. This case was not selected for publication in the Federal Reporter.Please use FIND to look at the applicable circuit court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.) United States Court of Appeals,Tenth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Brett Floyd YEOMANS, Defendant-Appellant. No. 06-1037. Jan. 5, 2007. Background: Defendant was convicted in the United States District Court for the District of Colorado of possession of rifle and shotgun by previously convicted felon, possession of ammunition by previously convicted felon, and possession of five grams of mixture containing methamphetamine by person previously convicted of drug offense. Defendant appealed. Holdings: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that: (1) officer's question to defendant as to whether there were drugs in vehicle did not impermissibly exceed scope of traffic stop for speeding violation, and (2) officer safety was valid reason for officer's request that defendant exit vehicle and for patdown. Affirmed. West Headnotes [1] Automobiles 48A 349(18) 48Ak349(14) Conduct of Arrest, Stop, or Inquiry 48Ak349(18) k. Inquiry; License, Registration, or Warrant Checks. Most Cited Cases Police officer's question to defendant as to whether there were drugs in vehicle did not impermissibly exceed scope of traffic stop for speeding violation; officer was not precluded from asking such question under Fourth Amendment, and to extent traffic stop was prolonged, it was because officers were mulling over significance of defendant's inability to provide last name of nephew, who was alleged subject of medical emergency, which was reason given for speeding. U.S.C.A. Const.Amend. 4. [2] Automobiles 48A 349(16)

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349 Arrest, Stop, or Inquiry; Bail or Deposit 48Ak349(14) Conduct of Arrest, Stop, or Inquiry 48Ak349(16) k. Ordering Occupants Out of Vehicle. Most Cited Cases Automobiles 48A 349.5(10)

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349 Arrest, Stop, or Inquiry; Bail or

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349.5 Search or Seizure Consequent to Arrest, Stop or Inquiry 48Ak349.5(5) Object, Product, Scope, and Conduct of Search or Inspection 48Ak349.5(10) k. Weapons; Protective Searches; Pat-Down. Most Cited Cases Officer safety was valid reason for police officer's request that defendant exit vehicle in which he was passenger, and for pat-down, during course of traffic stop for speeding violation; when officer stopped car, he knew that defendant, who was subject of two restraining orders possibly involving do-

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mestic violence, could be occupant of car, and as officers approached vehicle, they observed firearms in back seat of vehicle and ammunition on the dashboard in front of defendant. U.S.C.A. Const.Amend. 4. *753 William J. Leone, Jerry N. Jones, Greg Holloway, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee. Before MURPHY, ANDERSON, and O'BRIEN, Circuit Judges. ORDER AND JUDGMENT FN*

FN* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 (eff.Dec.1, 2006) and 10th Cir. R. 32.1 (eff.Jan.1, 2007).STEPHEN H. ANDERSON, Circuit Judge. **1 Following the denial of his motion to suppress, Brett Floyd Yeomans was found guilty by a jury of one count of possession of a rifle and shotgun by a previously convicted felon and one count of possession of ammunition by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pled guilty to a third count, possession of five grams of a mixture or substance *754 containing methamphetamine by a person previously convicted of a drug offense, in violation of 21 U.S.C. § 841(a) and (c). After Yeomans' motions for a new trial and for reconsideration of his motion to suppress were denied, the district court sentenced Yeomans to 100 months on counts one and two, and twenty-four months on count three, all to run concurrently. Yeomans appeals and we affirm. BACKGROUND On May 22, 2004, the Moffat County Justice Center dispatch center informed Colorado State Trooper Marty Smith that Moffat County law enforcement personnel had learned, through a series

of tips, that a gold Jeep Cherokee would be traveling on Highway 13 from Meeker, Colorado, to Craig, Colorado, and would possibly be transporting illegal narcotics. The dispatch center additionally informed Trooper Smith that the driver of the Jeep was named Steven Barley and that there were two passengers, Brett Yeomans and Brian Johnson. When Smith requested criminal histories on all three men, dispatch informed him that none had any outstanding warrants, but Yeomans was on probation and there were two restraining orders on him, FN1 involving a boy and a woman. Smith did not know why the restraining orders were placed on Yeomans, but he testified he suspected they related to domestic violence. See Tr. of Mots. Hr'g at 75, Appellant's App. at 83. Smith was told that he would have to develop his own basis for stopping the Jeep, as the anonymous tip was an insufficient basis by itself for stopping the car. FN1. Trooper Smith testified at the hearing on the motion to suppress that persons subject to restraining orders are not permitted to purchase firearms. Tr. of Mots. Hr'g at 11-12, Appellant's App. at 19-20. Trooper Smith then left the dispatch center and drove southbound on Highway 13 looking for the Jeep Cherokee. Two other law enforcement personnel, Deputy Daniel Burke and Deputy Todd Wheeler, also heard and responded to the dispatch center's message. Trooper Smith saw the Jeep Cherokee traveling towards him at eighty-two miles per hour in a sixtyfive mile-per-hour zone. Smith accordingly turned around and stopped the Jeep. Deputy Burke pulled his car over behind Trooper Smith's car. Before he approached the Jeep, Trooper Smith called dispatch to check on the Jeep's license plates. Dispatch informed Smith that records showed Barley was the registered owner and there were no other irregularities regarding the vehicle. Smith and Burke approached the Jeep together, Smith on the driver's side and Burke on the passenger's side. They observed Barley in the driver's seat and Yeo-

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FN2 mans was the only passenger. As the officers approached the car, both Smith and Burke saw two long guns in cases on the back seat of the Jeep. As they approached the front of the car, they also noticed some shotgun ammunition on the dashboard on the passenger side, where Yeomans was sitting. Smith testified that his normal practice upon observing guns in a vehicle was to take them out of their cases and see whether they were loaded. He further testified, however, that because Deputy Burke was accompanying him and could watch the vehicle occupants, he did not deem that necessary. But he said that the status of the guns "was stuff that [he] was going to check later on in the contact." *755 Tr. of Mots. Hr'g at 24, Appellant's App. at 32. FN2. As explained more fully, infra, at the time the officers approached the car, they had not yet identified the passenger as Yeomans. They made that determination later during the stop. For ease of reference, however, we identify Yeomans by name throughout this factual recitation. **2 Smith asked Barley and Yeomans who owned the guns and asked if they were loaded. He was told by Yeomans that they were his (Yeomans') weapons, that they were not loaded, and that he was taking them to his residence in Craig, Colorado, for storage. Trooper Smith nonetheless testified that he "had a reason to believe [the guns] might be [loaded], with the presence of the ammunition and the weapons in the same vehicle." Id. at 57, Appellant's App. at 65. Barley provided Trooper Smith with his driver's license and vehicle registration. Smith testified that Barley was "obviously nervous. His hands were shaking as he was trying to get his driver's license and stuff out." Id. at 25, Appellant's App. at 33. When asked why the two men were speeding, Yeomans responded that he had a medical emergency in that his nephew had been struck by a car FN3 and was in a hospital in Craig. Smith told Barley that he would be issued a citation for speeding. Smith and Burke then returned to Smith's patrol car

with Barley's driver's license, where Smith requested an additional records check and began to write out the citation. A total time of six minutes had elapsed, from the time the officers first approached the car to the time they went back to Smith's patrol car to check Barley's license and begin writing the citation. Id. at 27, Appellant's App. at 35. The additional records check revealed nothing adverse about the Jeep or its occupants. FN3. As it turned out, Smith had heard a broadcast from dispatch earlier in the day, before he became involved in the search for the Jeep, that a young boy had been hit by a car in Meeker or Craig. During the stop, Smith found out from dispatch that the child's first name was Kolby and that he, in fact, had two last names. At some time during the traffic stop, Smith informed Yeomans and Barley that the child had been treated and released from the hospital. While Trooper Smith was sitting in his patrol car writing out the citation, he directed Deputy Burke to return to the Jeep and find out the name of Yeomans' injured nephew. Burke did so, then reported to Smith that Yeomans could not remember his injured nephew's last name. Thinking it was unusual that Yeomans did not remember his nephew's last name, Smith "stopped writing the citation," id. at 30, Appellant's App. at 38, and he and Burke walked back to the Jeep to inquire further. At this point, ten or eleven minutes had passed since the officers first stopped the Jeep. Id. at 31, Appellant's App. at 39. Smith and Burke testified that Yeomans was "very nervous," "fidgety," and unable to speak in complete sentences. Id. at 94, 96, Appellant's App. at 102, 104. Yeomans again indicated he could not remember his nephew's last name. At some point in this phase of the stop, Smith obtained Yeomans' identification. Smith then asked Barley and Yeomans if they were carrying large quantities of cash or narcotics, to which both replied they were not. Smith asked both men for consent to search the Jeep and both consented. When they were asked to get out of the Jeep, both Barley and

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FN4 Yeomans did so. At approximately this point in the stop, Trooper Smith requested a canine drugdetecting unit. FN4. Deputy Burke's testimony was ambiguous as to whether he asked Yeomans to get out of the car or pulled him out. After Yeomans got out of the car, Deputy Burke patted him down "for weapons." Id. at 33, Appellant's App. at 41. At this point, Deputy Wheeler had also arrived at the scene. While patting Yeomans down, Burke discovered in Yeomans' pockets a *756 marijuana pipe, a plastic bag containing suspected marijuana, and a glass vial containing suspected methamphetamine. Yeomans was handcuffed and arrested. This occurred some eighteen minutes after the Jeep was initially stopped. After Yeomans was taken to jail, a search of Yeomans at the jail revealed further drug paraphernalia and some .22 caliber ammunition in his pockets. Meanwhile, the search of the Jeep revealed, in addition to the two guns and ammunition the officers had already seen, various drugs and drug paraphernalia. **3 Yeomans was initially indicted on three counts of possession of firearms and ammunition FN5 by a previously convicted felon. Yeomans filed a motion to suppress the evidence found and statements made following the search of the Jeep Cherokee. After conducting an evidentiary hearing, the district court denied the motion. The court found that, under Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), and United States v. Holt, 264 F.3d 1215 (10th Cir.2001), the officers had the right to "request [ ] the individuals to leave the vehicle for safety purposes." Tr. of Mots. Hr'g at 137, Appellant's App. at 144. Further, the court concluded that, given the concern that the people in the vehicle were "carrying drugs and firarms, ... a limited patdown, consistent with Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] and its progeny was appropriate." Id. The court then found that the discovery of "what felt like a pipe" during the patdown of Yeomans justified the request to look at it "for safety purpose."

Id. The court dismissed the significance of the confusion over the nephew's last name as well as Yeomans' alleged nervousness, but concluded that Yeomans as the "owner of the gun ... needed to be checked out on a criminal history, particularly because of a restraining order, and it was unclear from this record whether there was a need to be concerned about whether Mr. Yeomans was going to an area where he was prohibited from particularly with a firearm." Tr. of Mots. Hr'g at 138, Appellant's App. at 145. After determining that "[t]he length of the detention was not unreasonable, and ... that consent was not necessary for the patdown and the ... pull-out of Mr. Yeomans from the vehicle," the court denied Yeomans' motion to suppress the evidence seized from his person and the vehicle. FN5. Yeomans' previous felonies were convictions for theft and attempted escape, in violation of Colorado state law. The government thereafter brought a superceding indictment, in which the original firearms charge in count three was deleted and replaced by a new charge of possession of five grams of a mixture or substance containing a detectable amount of methamphetamine by a person previously convicted of a drug offense, in violation of 21 U.S.C. § 844(a) and (c). On May 9, 2005, following the severance of count three from the other two counts, Yeomans proceeded to trial before a jury on the two counts of possession of firearms and ammunition by a prohibited person. The jury found Yeomans guilty of both counts. Yeomans then pled guilty to count three relating to the methamphetamine possession, although he reserved the right to appeal issues relating to his motion to suppress. On December 26, 2005, Yeomans filed a motion for a new trial and for reconsideration of his motion to suppress. He sought a new trial on the two firearms counts on the ground that he claimed he did not understand he had the right to testify at his trial, and he sought reconsideration of the denial of his motion to suppress on the *757 ground that a

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similar motion was granted in the Colorado state case against Barley arising out of the same stop. Following an evidentiary hearing, the district court denied both motions and imposed concurrent sentences of 100 months on the firearms and ammunition possession counts and twenty-four months on the drug possession count. This appeal followed. **4 Yeomans argues on appeal that "[w]hile the traffic stop was justified at its inception, Trooper Smith exceeded the permissible scope of the stop, thus violating Yeomans' Fourth Amendment rights when he requested consent to search for illegal drugs before completing his traffic stop." ApFN6 pellant's Supp. Br. at 18. He further argues there is no evidence in the record indicating that officer safety motivated Trooper Smith to ask Yeomans for consent to search the vehicle. FN6. After initial briefing and oral argument of this case, we determined that supplemental briefing would be helpful. We accordingly ordered the parties to submit supplemental briefs. DISCUSSION [1] It is well established that a traffic stop is a seizure subject to the Fourth Amendment's limitations. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1257 (10th Cir.2006). Accordingly, "[a] traffic stop is permissible under the Fourth Amendment if the officer has a reasonable articulable suspicion that a traffic ... violation has occurred or is occurring." Id. at 1257-58 (further quotation omitted). "When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government." Id. at 1258 (further quotation omitted). Furthermore, we must "accept the district court's factual findings unless [they] are clearly erroneous," while "[t]he ultimate determination of reasonableness ... is a question of law reviewable de novo." Id. (further quotation FN7 omitted). While his briefs and his notice of appeal are unclear on this point, to the extent Yeomans also appeals the denial of his motion for a

new trial, we review that denial for an abuse of discretion. United States v. Gwathney, 465 F.3d 1133, 1144 (10th Cir.2006). Similarly, "[w]e review the district court's denial of a motion for reconsideration for an abuse of discretion." United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.2004). FN7. We have stated that " `unless a party asks the district court to reconsider its decision at trial, ... we will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.' " United States v. Humphrey, 208 F.3d 1190, 1203 (10th Cir.2000) (quoting United States v. Parra, 2 F.3d 1058, 1065 (10th Cir.1993)). Neither party indicates that such a request for reconsideration was made at trial, nor does anyone argue that there was or was not evidence at trial which undermined the district court's decision at the suppression hearing. Yeomans' motion post-trial for reconsideration of the denial of his motion to suppress was based upon the fact that, in the state court proceeding against Barley stemming from the same stop and arrest, the state court suppressed the evidence. There is no dispute that Trooper Smith's initial stop of the car in which Yeomans was traveling was justified. However, we have stated that "the reasonableness of a traffic stop depends on both `the length of the detention and the manner in which it is carried out.' " Alcaraz-Arellano, 441 F.3d at 1258 (quoting United States v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (en banc)). Yeomans argues the stop became unlawful when Smith asked him questions outside the scope of and unrelated to the purpose of the stop. In particular, he asserts that the Fourth Amendment was violated "when [Trooper Smith] request [ed] to search [the] vehicle for illegal drugs, without completing the traffic stop and without *758 any articulable suspicion or probable cause of criminal activity because it impermissibly extends the duration and permissible scope of the traffic stop." Appellant's Supp. Br. at 13.

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Several rules guide our analysis in this case. First, "[t]his court `follow [s] the bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to [him.].' " United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308-09 (10th Cir.2006) (quoting United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir.2005) (further quotation, alteration omitted; emphasis added)). In this case, since Trooper Smith never handed back the driver's license and other materials he had obtained from the driver, Steven Barley, prior to Yeomans' arrest, the encounter never became FN8 consensual. Thus, when the questioning about drugs occurred, and when Yeomans and Barley consented to a search of their car, the traffic stop continued to be a detention, not a consensual encounter. FN8. We have recently indicated that the analysis of when the detention is over may differ for the driver and for the passenger, at least if the passenger is the owner, depending upon what a reasonable person in the particular position of the driver or passenger/owner might know or perceive. See Guerrero-Espinoza, 462 F.3d at 1309-11. In Guerrero-Espinoza, we drew this distinction in part because the driver and the passenger/owner were physically in slightly different places-the driver was sitting in the officer's patrol car, while the passenger/owner remained in the stopped vehicle. We held that the passenger/owner had no reason to know that the traffic stop had ended vis-a-vis the driver when the driver, while sitting in the patrol car, was given his license and registration materials and told he could leave, but in fact remained outside the detained vehicle. Here, by contrast, since Barley and Yeomans remained together in the detained vehicle until removed by the troopers, their reasonable perception of what was happening, including their awareness of the fact that Barley's license and registration materials had not been returned, would have been

the same. **5 As indicated, our cases have stated that both the duration and the scope of a traffic stop are relevant to determining its legality. Yeomans argues that Trooper Smith impermissibly expanded the scope of the stop, which was initially based upon exceeding the speed limit, when he asked about drugs. We have always held that it is "reasonable for an officer to ask questions about the motorists's travel plans and authority to operate the vehicle." Alcaraz-Arellano, 441 F.3d at 1258. More recently, however, we recognized that, in light of recent Supreme Court authority, Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), " `[a]s long as the [officer's] questioning did not extend the length of the detention, ... there is no Fourth Amendment issue with respect to the content of the questions." Alcaraz-Arellano, 441 F.3d at 1258 (quoting United States v. Wallace, 429 F.3d 969, 974 (10th Cir.2005)). There was nothing improper, therefore, in questioning Yeomans and Barley about drugs, so long as that questioning did not unreasonably extend the length of the detention. On that issue, it does not appear that the questioning about drugs extended the length of the detention. Rather, it appears that, to the extent the detention was prolonged at all, it was because Trooper Smith and Deputy Burke were mulling over the significance, if any, of the fact that Yeomans appeared FN9 not to know the last name of his nephew. We therefore *759 conclude that questioning about drugs did not unreasonably extend the detention, and therefore did not violate the Fourth Amendment. See id. at 1259 (" `A traffic stop does not become unreasonable merely because the officer asks questions unrelated to the initial purpose for the stop, provided that those questions do not unreasonably extend the amount of time that the subject is delayed.' ") (quoting United States v. Martin, 422 F.3d 597, 601-02 (7th Cir.2005)). FN9. Trooper Smith testified that "the normal course of filling in all the blanks" on a speeding citation required approximately ten minutes. Tr. of Mots. Hr'g at 84, Ap-

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pellant's App. at 92. He also testified that approximately six minutes elapsed between the time he stopped the Jeep and the time he sat down in his patrol car to begin writing out the speeding citation. Since Yeomans was handcuffed and arrested approximately eighteen minutes after the initial stop, we can infer that there was a delay of two minutes from the normal time it would take to stop a car, obtain information from the driver and write out a citation. [2] Furthermore, the government argues in its supplemental brief that the detention and search of Yeomans and the Jeep were justified on the ground of officer safety. We agree. When the officers stopped the car, they knew that Yeomans, who was the subject of two restraining orders possibly involving domestic violence, could be an occupant of the car. As they first approached the car, they observed the guns and ammunition in the vehicle. At some point prior to asking Yeomans and Barley to exit the vehicle, and prior to the subsequent patdown of Yeomans and search of the car, they learned that Yeomans owned the weapons. That combination of information more than justified their actions in removing Yeomans and Barley from the vehicle, patting them both down and searching the car. "Officers can conduct a protective search of a vehicle's passenger compartment for weapons during an investigative detention when officers have a reasonable belief that a suspect poses danger." United States v. Dennison, 410 F.3d 1203, 1210 (10th Cir.2005). Additionally, "an officer making a traffic stop may order both the driver and passengers to exit the vehicle pending completion of the stop." Id. at 1211 (citing Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). "A police officer may also `perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.' " Id. (quoting Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). Trooper Smith and Deputy Burke were accordingly entitled to ask Yeomans and Barley to get out of the vehicle, pat them down and search the in-

FN10 terior of the car. The pat-down in turn led to the discovery of the contraband on Yeomans' person, which, in turn, indisputably provided probable cause to arrest Yeomans. A thorough search of the car, as well as a further search of Yeomans' person at the jail, inevitably and properly followed. FN10. The government argues in its supplemental brief that, at the time the officers asked Yeomans and Barley to exit the car and submit to a pat-down, the officers actually had probable cause to arrest Yeomans for a violation of 18 U.S.C. § 922(g)(8)(B), which prohibits a person subject to a restraining order involving domestic abuse from possessing a gun. The government bases this argument on the fact that the officers: (1) knew who Yeomans was, since he had provided them with some form of identification; (2) knew he was subject to two restraining orders involving a boy and a woman which they suspected related to domestic abuse, and (3) knew that Yeomans owned the weapons, because he had already volunteered that the weapons in plain view in the car were his and that he was transporting them to his residence. We need not address this issue because, as we conclude above, even without probable cause prior to the pat-down, the officers were entitled to remove Yeomans from the car and pat him down, which led to the discovery of contraband on his person, which in turn gave the officers probable cause to arrest him. **6 Yeomans responds that there was no evidence the officers were in fact fearful for their safety. That is irrelevant. "This court ... has reasoned that the test of officer safety is objective rather than subjective,*760 and therefore the officer need not personally be in fear." Id. at 1213. Further, we have "emphasize[d] ... that the balance [between the government's interest in officer safety and the motorist's interest in privacy] does not depend on whether the officer subjectively fears the motorist."

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United States v. Holt, 264 F.3d 1215, 1225 (10th Cir.2001) (en banc). "That one officer is braver (or more foolhardy) than another, and therefore not subjectively concerned for his or her safety, should not deprive that particular officer of a right to protect his or her safety." Id. at 1225-26. Thus, the fact that the officers did not testify to being fearful for their safety does not prohibit them from acting in accordance with what a reasonable officer would objectively feel justified in doing once he observed guns and ammunition in a car stopped for speeding, in which a person subject to restraining orders is riding. See United States v. Neff, 300 F.3d 1217, 1222 (10th Cir.2002) (rejecting defendant's argument that no grounds for a Terry frisk existed "because there was no evidence in the record that the officers in fact feared for their safety."). Additionally, the officers were not obligated to conduct their investigation in any particular order, and the fact that they did not immediately react to the presence of weapons, or immediately frisk or arrest Yeomans, is irrelevant. Just as there is "no constitutional right to be arrested," there is no constitutional right to be arrested at a particular time. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Wynne, 993 F.2d 760, 765 (10th Cir.1993) (" `The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect.' " (quoting Hoffa, 385 U.S. at 310, 87 S.Ct. 408)). We accordingly conclude that the district court correctly denied Yeomans' motion to suppress. The court also did not abuse its discretion in denying Yeomans' motion for a new trial and his motion to reconsider the denial of his motion to suppress.FN11 FN11. Yeomans only develops an argument about the propriety of the district court's denial of his motion to suppress. Because he develops no argument concerning the denial of his motion for a new trial, nor does he make any argument about the specific ground upon which he sought re-

consideration of the denial of his motion to suppress, we conclude that he has failed to show that the district court abused its discretion in denying those motions. CONCLUSION For the foregoing reasons, the conviction is AFFIRMED. C.A.10 (Colo.),2007. U.S. v. Yeomans 211 Fed.Appx. 753, 2007 WL 30032 (C.A.10 (Colo.)) END OF DOCUMENT

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II. FACTS AND PROCEEDINGS U.S. v. McCuiston S.D.Tex.,2007. Only the Westlaw citation is currently available. United States District Court,S.D. Texas,Corpus Christi Division. UNITED STATES of America, Plaintiff/Respondent, v. Brian McCUISTON, Defendant/Movant. CR. No. C-04-676. C.A. No. C-07-193. Sept. 12, 2007. ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, AND ORDER DENYING CERTIFICATE OF APPEALABILITY JANIS GRAHAM JACK, United States District Judge. *1 Pending before the Court is Brian McCuiston's ("McCuiston") motion to vacate, set aside or correct his sentence pursuant to 28 U .S.C. § FN1 2255 (D.E.126), which was received by the Clerk on April 23, 2007. He also filed a supplemental memorandum supporting one of his claims on June 5, 2007. (D.E.133.) The government filed its response on July 20, 2007, in which it argues that McCuiston's motion should be denied. (D.E.131.) On August 24, 2007, McCuiston filed a reply (D.E.132), which the Court has also considered. For the reasons set forth below, McCuiston's § 2255 motion is DENIED. Additionally, the Court DENIES McCuiston a Certificate of Appealability. FN1. Dockets entries refer to the criminal case, C-04-cr-676. I. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 2255. A. Summary of Offense FN2

FN2. The fact of the offense are taken from McCuiston's Presentence Investigation Report ("PSR") at paragraphs 5-29. There are far more details involved than listed here, but McCuiston's direct involvement is highlighted herein. In the late 1990s, federal law enforcement authorities began investigating cocaine, marihuana and methamphetamine distribution in the Corpus Christi, Texas area which was being conducted by members and associates of a local street gang, the Corrupt Criminal Mob ("CCMob"). The gang was started around 1993 and McCuiston was an identified mob member. McCuiston, along with his codefendants Robert Mott and Richard Daniel, and with FN3 Frank Tijerina, were at the top of the hierarchy and all split the profits from the drug distribution. FN3. Tijerina was indicated in a separate criminal case. One confidential informant ("CI1") reported transporting methamphetamine for the mob from 1997 through 2003, moving bundles taped to his/ her body from California to Corpus Christi. Another confidential informant reported ("CI7") that after his/her release from prison in 1997, he began receiving methamphetamine from McCuiston for $8,000-$8,500 per pound. CI7 sold 1 kilogram of methamphetamine per month until being arrested in January 2003. After CI7's arrest, McCuiston provided money to CI7 for an attorney. CI7 was also told by McCuiston that he wanted to set up a methamphetamine distribution ring in Kansas with the help of McCuiston's brother, Eric. In July 1998, McCuistonwas present at an apartment where methamphetamine was being distributed. He and Daniel entered and left the apartment under surveillance. After a high speed chase, Daniel jumped

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from the vehicle and fled on foot. Police backtracked his route and found a bundle of methamphetamine, which weighed approximately 415 grams. A search of the apartment where Daniel and McCuistonhad picked up the methamphetamine revealed another bundle wrapped exactly like the one recovered, as well as a second bundle. The total amount of methamphetamine seized from the apartment weighed approximately 1 kilogram. CI2 advised that he/she delivered methamphetamine locally for the CCMob, and also described the methods used for distribution from 1999 through 2003. CI2 reported that McCuiston and others sent runners to California to retrieve the methamphetamine and that CI2 believed McCuiston was laundering the drug money through his business, Half-price Glass. *2 A cooperating co-defendant ("CD1") advised that around April 2003, he/she was introduced to McCuiston and began receiving methamphetamine from Tijerina on behalf of McCuiston. CD1 received between 4 and 8 ounces of methamphetamine twice per month, and the purchases were negotiated through McCuiston at his business, Half-Price Glass. After CD1 established customers, he/she began receiving 1-2 pounds of methamphetamine for $12,500 pound from McCuiston, except for the months of April, May and June 2004, when the supply had dried up. CD1 estimated that he/she received 7-9 kilograms of methamphetamine from the organization through McCuiston. CD1 identified McCuiston as the top individual in the drug distribution organization and also personally received methamphetamine from McCuiston and Daniel. A different cooperating co-defendant ("CD2") told agents that he/she purchased 1.5 ounces of methamphetamine each month from Cory, but that the methamphetamine was coming from California and was controlled by Tijerina and McCuiston. A third cooperating co-defendant ("CD3") told agents that he met Tijerina and McCuiston in 2002. CD3 was aware that the organization (led by Tijer-

ina, Mott, McCuiston and Daniel) was transporting 7-11 kilograms of methamphetamine each month. When the organization ran into supply difficulties in February 2004, CD3 used his/her contacts in Dallas to secure approximately 1.5 kilograms of methamphetamine for the organization. Several other cooperating co-defendants and confidential sources identified McCuiston, Tijerina, Mott and Daniel as the four persons in charge of the methamphetamine distribution ring. They also testified regarding specific amounts that were involved. Utilizing information from all the confidential informants, cooperating sources and cooperating codefendants, the PSR held McCuiston accountable for at least 151.915 kilograms of methamphetamine. B. Criminal Proceedings On November 23, 2004, McCuiston was charged with Mott and Daniel in a single-count indictment with knowingly and intentionally conpiring to possess with intent to distribute more than 500 grams of a mixture of substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (D.E.1.) McCuiston proceeded to trial on March 7 and 8, 2005, and the jury returned a guilty verdict on March 8, 2005. (D.E.61-72.) The Court ordered the U.S. Probation Office to prepare a Presentence Investigation Report ("PSR") and sentencing occurred on June 6, 2005. (D.E.72, 96.) The Court sentenced McCuiston to 280 months in the custody of the Bureau of Prisons, to be followed by a five-year supervised release term, and also imposed a $100 fine and $100 special assessment. (D.E.96, 99.) Judgment was entered on June 6, 2005. (D.E.99). McCuiston timely appealed, and the Fifth Circuit affirmed in a per curiam opinion issued June 28, 2006. (D.E.121.) McCuiston filed a petition for writ of certiorari, which the Supreme Court denied on November 9, 2006. (D.E.125.) McCuiston v. United States, 127 S.Ct. 536 (2006). McCuiston's § 2255 motion was received by the Clerk on April 23, 2007. (D.E.126.) It is timely.

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III. MOVANT'S ALLEGATIONS *3 McCuiston's motion and supplemental motion list five grounds for relief. First, he argues that the indictment in his case was defective because it stated that the charged crime occurred "in the Corpus Christi division of the Southern District of Texas and elsewhere within the jurisdiction of the Court," but it did not charge that crimes occurred elsewhere. He claims the indictment is defective because the proof at trial showed that the conspiracy and drugs for which he was sentenced occurred elsewhere, as well as in Corpus Christi. (D.E. 126 at 4-8.) Second, he claims that the Court erred in admitting into evidence his prior juvenile record because it was not certified by the Attorney General. Third, he claims that he was denied effective assistance of counsel because counsel failed to suppress the use of his prior juvenile record prior to and during trial. (D.E. 126 at 4.) Fourth, in his supplement which appears to contain boilerplate language cobbled together from other sources, McCuiston argues that this Court did not have jurisdiction to indict and convict him because 18 U.S.C. § 3231(which gives the federal courts original jurisdiction over all federal crimes) is not a validly enacted law. He argues that the statute is unconstitutional because Public Law 80-772, which codified Title 18 of the United States Code, was not validly enacted. In support of his fourth claim, he points to the legislative history of Public Law 80-772, which he claims was never correctly passed by both houses of Congress in the same session Congress, and thus is an invalid law. (See generally D.E. 133.) Specifically, he claims: (1) that the House version of the bill died due to two sine die adjournments, and that the amended 1948 bill was read only once in the Senate and was thus not enacted properly (D.E. 133 at 13-18); and (2) that the Senate version of the bill was a different bill textually than the one signed by the Speaker of the House, the President pro tempore of the Senate, and President Truman

and that the signatories knew "the enacting clause was false." (D.E. 133 at 18.) Accordingly, he argues that this Court's actions were "ultra vires" and void and that he is being illegally held in custody. (D.E. 133 at 1, 9-13.) In his supplement, McCuiston also argues that his counsel was constitutionally ineffective because he failed to challenge the district court's jurisdiction based on the defects in the enactment of 18 U.S.C. § 3231. The Court treats this as his fifth ground for relief. For the reasons set forth herein, all of McCuiston's claims fail. IV. DISCUSSION A. 28 U.S.C. § 2255 There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside or correct his sentence: (1) constitutional issues; (2) challenges to the district court's jurisdiction to impose the sentence;(3) challenges to the length of a sentence in excess of the statutory maximum; and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir.1996)."Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice."United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992). B. Procedural Default *4 The government argues that McCuiston's claims, with the exception of his ineffective assistance claims, are barred because he failed to raise them on direct appeal. (D.E. 131 at 3-7.) Where a defendant fails to raise an issue in his criminal proceedings, that issue is procedurally barred from consideration in § 2255 proceedings. See United States v. Lopez, 248 F.3d 427, 433 (5th Cir.2001);

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United States v. Kallestad, 236 F.3d 225, 227 (5th Cir.2000). A district court may consider a defaulted claim only if the petitioner can demonstrate either (1) cause for his default and actual prejudice; or (2) that he is actually innocent of the crime charged. Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Jones, 172 F.3d 381, 384 (5th Cir.1999). McCuiston's claim challenging the indictment on the grounds that it did not specify a geographic location where the crime occurred, and his claim that the Court lacked jurisdiction due to improprieties in the passage of Public Law 80-772, are procedurally barred because McCuiston did not raise them on appeal. Additionally, he has failed to demonstrate either "cause and prejudice" or "actual innocence" in order to overcome the procedural bar. As discussed herein, moreover, even if they were properly before the Court, they fail on their merits. McCuiston's claims of ineffective assistance of counsel are properly made for the first time in a § 2255 motion because they raise an issue of constitutional magnitude and generally cannot be raised on direct appeal.United States v. Bass, 310 F.3d 321, 325 (5th Cir.2002); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.1992). Thus, the Court addresses the merits of McCuiston's ineffective assistance claims. C. Claim That Indictment Was Defective for Lack of Specific Geographical Location McCuiston's first claim is that the indictment in his case was defective because it did not contain references to the numerous other places where acts in furtherance of the conspiracy occurred. In particular, he argues that the proof from witnesses at trial showed that the conspiracy "extended as far as California" and that different groups of people would travel to different places in California to purchase methamphetamine and bring it back to Corpus Christi for resale. He also claims that he and his co-defendants lived in Oregon, in Kansas and in Oklahoma for a portion of the time at issue. Be-

cause the indictment "does not include the geographical points" in the other states, he argues, the indictment is defective. (D.E. 125 at 5.) As previously noted, McCuiston is procedurally barred from raising this claim here. Moreover, even if it were properly before the Court, the claim is without merit. An indictment is sufficient if it: (1) contains the elements of the offense charged; (2) fairly informs a defendant of the charge against him; and (3) enables him to plead acquittal or conviction in bar of future prosecutions for the same offense. United States v. Hagmann, 950 F.2d 175 (5th Cir.1991) (internal citations omitted). An indictment's validity depends not on "whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards."United States v. Webb, 747 F.2d 278, 284 (5th Cir.1984) (citation omitted). In this case, the indictment satisfies the three requirements set forth in Hagmann, and McCuiston does not argue to the contrary. Instead, he complains that there mere absence of the mention of other locations where the conspiracy occurred renders the indictment defective. He is incorrect. *5 The indictment here charged a conspiracy that occurred in Corpus Christi and elsewhere in the Southern District of Texas. (D.E.1). It is true that the proof at trial included acts in furtherance of the conspiracy both within the Southern District of Texas and in other states. (D.E.121) (Fifth Circuit's opinion in this case setting forth the basic facts of the conspiracy). McCuiston's claim that the lack of reference in the indictment to these other locations somehow destroys the Court's jurisdiction, FN4 however, is without legal basis. FN4. Notably, although McCusiton cites to a number of cases on this claim, none of them held that the failure to list in the indictment all of the locations where conspiratorial acts took place rendered an indictment defective. He cites to numerous cases for the proposition that the failure to charge an "essential element of a crime" fails to charge the offense, but the essential

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elements of the conspiracy here were charged. The fact that not every factual "element" of the conspiracy was charged in the indictment (as opposed to an element of the offense under the law) is irrelevant. The Fifth Circuit has held that "[i]t is not necessary to prove the exact location of the offense alleged in the indictment, provided it is proven to be within the jurisdiction of the court."Norris v. United States, 152 F.2d 808, 811 (5th Cir.1946); see also Cagnina v. United States, 223 F.2d 149, 153 n. 2 (5th Cir.1955) (citing Norris for the proposition that even where there is a variance as to the location alleged in an information and the proof at trial, the variance is "immaterial so long as there is no misleading and so long as the proof shows the offense occurred within the jurisdiction of the court"). In this case, there can be no doubt that the government proved the offense to have occurred within the jurisdiction of the Court. Indeed, the Fifth Circuit has held that a district court has jurisdiction over a conspiracy case where some of the overt acts were committed in furtherance of the conspiracy within the jurisdiction of the Court. See Rivard v. United States, 375 F.2d 882, 886-87 (5th Cir.1967) (in international case, district court had jurisdiction to try an alien for conspiracy, formed outside of the United States, because several of the overt act in furtherance of the conspiracy were committed by a co-conspirator within the United States); cf.18 U.S.C. § 3237(a) ("any offense against the United States begun in one district and committed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed"). Based on the foregoing authority, the lack of reference in the indictment to every location where acts occurred in furtherance of the conspiracy does not render the indictment defective. McCuiston's first claim challenging the indictment therefore fails.

D. Claim that the Court Erred in Admitting His Juvenile Record McCuiston's second claim, i.e., that the Court erred in admitting his juvenile record, fails because it was addressed and rejected by the Fifth Circuit in McCuiston's direct appeal. (See D.E.121 at 2-3.) Indeed, it has long been "settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions."United States v. Kalish, 780 F.2d 506, 508(5th Cir.1986) (affirming district court's refusal to entertain the defendant's § 2255 motion). Accordingly, this claim, too, fails. E. Arguments Challenging the Validity of Public Laws 80-772 *6 Even if it were properly before the Court, McCuiston's claim regarding the invalidity of 18 U.S.C. § 3231 is without merit. As noted, McCuiston claims that the statute used to indict and convict him was not validly enacted and thus that the Court had no jurisdiction over his criminal case. Specifically, McCuiston claims that the bill that eventually became Public Law No. 80-772 never passed both houses of Congress in the same version. He contends that the bills were acted upon by the House, but not the Senate, before Congress adjourned and that the House version of the bill died at adjournment. In support of his claim, McCuiston attaches a large number of documents purportedly supporting his factual recitation of the facts. He also relies heavily on Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974) and, in particular, on the text of two FN5 footnotes in the appendix to that opinion. (See D.E. 133 at 14-17 & nn. 8-9.) The text of one of those footnotes describes the adjournment in July 1947 (after the House passed the bill that would become Public Laws 80-772, but before the Senate did) as follows: FN5. The issues and holding in Kennedy are irrelevant to McCuiston's motion, and he does not rely upon any holdings in the

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case. Thus, the Court does not address them, nor the later authority calling those holdings into doubt. The Senate and the House of Representatives adjourned on July 27, 1947 under a "conditional final adjournment" resolution, S. Con. Res. 33; 93 Cong. Rec. 10400. Pursuant to the resolution, the two Houses were to stand in adjournment until January 2, 1948, unless recalled into a session earlier by specified Senate and House leaders. In effect, the adjournment was a sine die adjournment, not an intrasession adjournment. Kennedy, 511 F.3d 430, Appx. at n. 4. When Congress adjourns sine die, unpassed bills die of FN6 their own accord. Thus, the footnotes in Kennedy appear to lend some credence to McCuiston's arguments. FN6. The term "adjournment sine die" is defined as "[t]he ending of a deliberative assembly's or court's session without setting a time to reconvene."Black's Law Dictionary 44 (8th ed.2004). But those footnotes must also be read in context. It is clear from the context that the intended meaning of those words was that the July 1947 recess was not an intrasession recess (which was what the rest of the Appendix referred to), but an inter sessionrecess. That is, although the term "sine die" is used in the footnotes, it was intended to convey that a session of Congress was ending, rather than merely having a break in the session. It should not be read as McCuiston reads it, to mean that the entirety of the Congress (i.e., both sessions of Congress) ended at the time. Instead, only one of the two sessions of Congress ended. The text where the footnotes occur make this clear, too, because it indicates that footnotes 4 and 5 refer to the 1st session of the 80th Congress, and the 2nd session of the 80th Congress, respectively. Taken in context, those footnotes cannot be read literally to mean that there was an adjournment sine die of that entire Congress, such that all pending bills died. Moreover, the 80th Congress did not adjourn sine die in July 1947. When the first session adjourned,

it did so to a date certain, not sine die. See Kennedy, 511 F.2d 430, Appx. at n. 4 (Congress adjourned in July 1947 until January 2, 1948). Accordingly, the Court finds no merit in McCuiston's contentions. *7 The Court further notes that numerous other district courts have rejected the same or similar argument raised by § 2255 movants, including two district judges of the Southern District of Texas. See United States v. Martinez, Cr. No. C-04-157, 2006 WL 1293261 (S.D.Tex. May 6, 2006) (Chief Judge Head determining that the same argument is invalid and erroneous); Delreth v. United States, Cr. No. L-03-1745-6, 2006 WL 1804618, at *4 (S.D. Tex. June 27, 2006) (United States District Judge Kazen stating that "[p]etitioner's analysis does not persuade the Court that there is any material flaw in the jurisdictional statute, and additional factors militate strongly against him" and further noting that, "even if 18 U.S.C. § 3231 was flawed, legislation that pre-dated section § 3231 would have operated to give the Court jurisdiction over federal crimes"); see also United States v. Felipe, 2007 WL 1740263 (E.D. Pa June 14, 2007) (collecting authority and concluding that "this mythical story concerning the irregular adoption of Public Law Number 80-772 is utterly baseless"). Additionally, the Court finds persuasive the government's argument in its response that the "enrolled bill rule" requires rejection of McCuiston's claim. In short, that rule provides that an attested "enrolled bill"-one signed by the leaders of the House and Senate-establishes that Congress passed the text included therein in a constitutional manner and it "should be deemed complete and unimpeachable."Public Citizen v. United States District Court for the District of Columbia, 486 F.3d 1342, 1343 (D.C.Cir.2007) (quoting Marshall Field & Co. v. Clark, 143 U.S. 649,672-73 (1892)). In Public Citizen, the District of Columbia Circuit Court of Appeals held that a district court had properly dismissed a constitutional challenge to the Deficit Reduction Act of 2005 premised on the ground that the statute was invalid because the bill

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that was presented to the President did not pass both chambers of Congress in the exact same form. 486 F.3d at 1343-45. The Court explained the rule, based on Marshall Field, as follows: "It is not competent for [a party raising a bicameralism challenge] to show, from the journals of either house, from the reports of committees or from other documents printed by authority of Congress, that [an] enrolled bill" differs from that actually passed by Congress. [Marshall Field, 143 U.S.] at 680. The only "evidence upon which a court may act when the issue is made as to whether a bill ... asserted to have become a law, was or was not passed by Congress" is an enrolled act attested to by declaration of "the two houses, through their presiding officers."Id. at 670, 672.An enrolled bill, "thus attested," "is conclusive evidence that it was passed by Congress."Id. at 672-73."[T]he enrollment itself is the record, which is conclusive as to what the statute is ...." Id. at 675 (internal quotation marks omitted). *8 48 F.3d at 1350. This rule mandates that this Court accept as conclusive Public Law. 80-772, and reject McCuiston's request that the Court look behind the bill at the Congressional actions taken on it while pending. Instead, the Court must treat the text in the enrolled bill as "complete and unimpeachable." Public Citizen, 486 F.3d at 1343 (quoting Marshall Field, 143 U.S. at 672-73). Notably, the Seventh Circuit Court of Appeals recently utilized the enrolled bill rule to reject a claim identical to the one raised by McCuiston. See United States v. Miles, 2007 WL 1958623, *1 (7th Cir. July 3, 2007) (citing Marshall Field and Public Citizen, supra ). In short, the "enrolled bill rule" makes it unnecessary to review his contentions concerning legislative irregularities, and, in any event, it appears that the law challenged by McCuiston was properly enacted into law. Moreover, as noted by Judge Kazen and other courts, see, e.g., United States v. Risquet, 426 F.Supp.2d 310, 311-312 (E.D. Pa .2006), even if the 1948 amendment to § 3231 were defective, this Court would nonetheless retain juris-

diction over McCuiston's case because the predecessor statute to § 3231 also provides for such jurisdiction. Delreth, supra, 2006 WL 1804618, at *4. For all of these reasons, McCuiston's challenge to 18 U.S.C. § 3231 fails. F. Ineffective Assistance of Counsel 1. General Standards McCuiston's ineffective assistance claims are properly analyzed under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984).United States v. Willis, 273 F.3d 592, 598 (5th Cir.2001). To prevail on a claim of ineffective assistance of counsel, a movant must demonstrate that his counsel's performance was both deficient and prejudicial. Id. This means that a movant must show that counsel's performance was outside the broad range of what is considered reasonable assistance and that this deficient performance led to an unfair and unreliable conviction and sentence. U.S. v. Dovalina, 262 F.3d 472, 474-75 (5th Cir.2001). If the movant fails to prove one prong, it is not necessary to analyze the other. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one"), cert. denied,514 U.S. 1071 (1995); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir.1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim."). As discussed in the following sections, both of McCuiston's ineffective assistance claims fail because he cannot show prejudice. 2. Counsel's Failure to Challenge Admission of Juvenile Records McCuiston claims that he was denied effective assistance of counsel because his trial counsel did not challenge the admission of his juvenile records. As noted supra in Section IV.D., the Fifth Circuit addressed the admission of these records and con-

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cluded that, if it was error at all, it was not plain error and did not affect his substantial rights. The Fifth Circuit's holding on this issue is dispositive of the prejudice prong of Strickland here. That is, McCuiston has not suffered any prejudice because he cannot show a reasonable probability that the result of his case would have been different, if his attorney had done something more to challenge the records. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999) ("An attorney's failure to raise a meritless argument ... cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue."). This claim does not entitle McCuiston to relief. 3. Counsel's Failure to Challenge the Validity of 18 U.S.C. § 3231 *9 McCuiston's final claim of ineffective assistance fails for the same reason. That is, as discussed supra at Section IV.E., there is no merit in McCuiston's challenges to the jurisdiction of this Court. Thus, even is his counsel had raised such a challenge, the outcome of the proceeding would not have been different. Kimler, 167 F.3d at 893. Thus, he has failed to show prejudice and his ineffective assistance claim on this ground fails. For the foregoing reasons, McCuiston's § 2255 motion is DENIED. G. Certificate of Appealability An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability."28 U.S.C. § 2253(c) (1)(A). Although McCuiston has not yet filed a notice of appeal, this Court nonetheless addresses whether he would be entitled to a COA. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000) (a district court may sua sponte rule on a COA because "the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a

constitutional right on the issues before that court. Further briefing and argument on the very issues the court has just ruled on would be repetitious."). 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)."The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits."Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To warrant a grant of the certificate as to claims denied on their merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires a § 2255 movant to demonstrate that reasonable jurists could debate whether the motion should have been resolved differently, or that the issues presented deserved encouragement to proceed further. United States v. Jones, 287 F.3d 325, 329 (5th Cir.2002) (relying upon Slack, 529 U.S. at 483-84). As to claims that the district court rejects solely on procedural grounds, the movant must show both that "jurists of reasons would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."Slack, 529 U.S. at 484 (emphasis added). The Court concludes that reasonable jurists could not debate the denial of McCuiston's § 2255 motion on substantive grounds nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S. at 484). Similarly, as to the claims that this Court has addressed on procedural grounds, the Court finds that McCuiston cannot establish at least one of the Slack criteria. Accordingly, McCuiston is not entitled to a COA. V. CONCLUSION

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*10 For the above-stated reasons, McCuiston's motion under 28 U.S.C. § 2255 (D.E.126) is DISMISSED WITH PREJUDICE. The Court also DENIES him a Certificate of Appealability. ORDERED. S.D.Tex.,2007. U.S. v. McCuiston Slip Copy, 2007 WL 2688502 (S.D.Tex.) END OF DOCUMENT

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U.S. v. Felipe E.D.Pa.,2007. Only the Westlaw citation is currently available. United States District Court,E.D. Pennsylvania. UNITED STATES of America v. Cesar FELIPE Cesar Felipe v. Troy Levi et. al. Criminal No. 05-cr-711-1. Civil Action No. 07-cv-061. July 30, 2007. Joel D. Goldstein, U.S. Attorney's Office, Philadelphia, PA, for United States of America. Steven G. Laver, Philadelphia, PA, for Cesar Felipe. AMENDED MEMORANDUM AND ORDER PRATTER, District Judge. *1 Petitioner Cesar Felipe seeks habeas corpus relief pursuant to 28 U.S.C. § 2241 (Docket No. 1, C.A. 07-061) from his conviction in federal court for various drug-related crimes. As described below, Mr. Felipe has sought to avail himself of certain arguments that are wholly without merit. None of his post-conviction claims discussed here pertain to his own individual situation. Rather, he has borrowed "boiler plate" materials that, but for the frequency with which they have recently been appearing on the federal court dockets, would not warrant substantive discussion. Hence, this Memorandum. The Antiterrorism and Effective Death Penalty A