U.S. v. Price, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 06-5094

v.

(N.D. Oklahoma)

HOMER PRICE,

Defendant-Appellant.

(D.C. Nos. 05-CV-124-JHP and

02-CR-19-JHP)

ORDER

Before HENRY,

BRISCOE, and O'BRIEN, Circuit Judges.

Homer Price, a federal prisoner proceeding pro se, seeks a certificate of

appealability ("COA") to appeal the district court's order denying his 28 U.S.C. §

2255 petition to vacate, modify, or set aside his conviction and sentence. In his

petition, Mr. Price alleged three claims of ineffective assistance of counsel, a

violation of his due process and Sixth Amendment rights articulated in Blakely v.

Washington, 542 U.S. 296 (2004), and Booker v. United States,

543 U.S. 220

(2005), and one claim that his sentence violated his Fifth Amendment right to

due process. For substantially the same reasons set forth by the district court in

its well-reasoned order, we deny Mr. Price's application for a COA and dismiss

this matter.

I. BACKGROUND

A jury convicted Mr. Price of one count of possession of a firearm and

ammunition after former conviction of felony, in violation of 18 U.S.C. §§

922(g)(1) and 924(c). The district court sentenced Mr. Price to 188 months'

imprisonment, plus five years' supervised release. We affirmed Mr. Price's

conviction on direct appeal. United States v. Price, 94 Fed. Appx. 792 (10th Cir.

2004).

In his § 2255 motion to vacate, Mr. Price argues five claims: (1) he

received ineffective assistance of counsel during his trial and sentencing process

because counsel failed to investigate or present mitigating evidence in the form

of his medical records, (2) he received ineffective assistance of appellate counsel

when counsel failed to argue that Mr. Price's sentencing deprived him of due

process or violated his Sixth Amendment rights; (3) he received ineffective

assistance of counsel based upon the cumulative effect of alleged trial,

sentencing, and appellate errors; (4) his sentence, which the district court

increased based upon facts not charged in the indictment that were not presented

to a jury, denied him due process of law, and violated his Sixth Amendment

constitutional rights; and (5) his sentence violated his Fifth Amendment right to

due process. The district court dismissed Mr. Price's ineffective assistance of

counsel claims and the challenges to his sentence.

II. DISCUSSION

In order to obtain a COA, Mr. Price must make "a substantial showing of

the denial of a constitutional right." 28 U.S.C. 2253(c)(2). Mr. Price may

make this showing "by demonstrating that jurists of reason could disagree with

the district court's resolution of his constitutional claims or that jurists could

conclude the issues presented were adequate to deserve encouragement to

proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). "[A] claim

can be debatable even though every jurist of reason might agree, after the COA

has been granted and the case has received full consideration, that [the] petitioner

will not prevail." Id. at 338.

Here, for substantially the same reasons set forth in the district court's

order, we conclude that Mr. Price is not entitled to a COA. Mr. Price's

ineffective assistance claims satisfy neither the deficient performance nor the

prejudice prong set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).

We agree with the district court that, notwithstanding a head injury suffered two

years before the alleged offense in this case, none of the medical records Mr.

Price submitted indicate he was incompetent to understand the proceedings

against him at trial. Furthermore, Mr. Price cannot show prejudice as to his

sentence, because he was sentenced at the low end of the sentencing guidelines

range. The district court's resolution of this claim is not reasonably debatable.

As to appellate counsel's alleged failure to bring a Blakely/Booker

challenge, the district court noted counsel was not ineffective for failure to

predict the future outcome of Blakely and raise it on appeal. United States v.

Harms, 371 F.3d 1208, 1212 (10th Cir. 2004) ("The Sixth Amendment does not

require counsel for a criminal defendant to be clairvoyant."). This court affirmed

Mr. Price's conviction on April 13, 2004; the Supreme Court decided Blakely on

June 24, 2004. Even had counsel anticipated that the Court would apply Blakely

to the federal sentencing guidelines in Booker, and had raised this issue in a

petition for certiorari, the petition would have been denied because it was

procedurally barred. Thus, the district court's conclusion that Mr. Price's

appellate counsel was not ineffective is not reasonably debatable.

As to Mr. Price's third allegation, that he was denied effective assistance

of counsel based upon the cumulative impact of multiple deficience of counsel

during trial, we agree with the district court that, "[h]aving found no errors in

counsel's performance, cumulative error analysis does not apply in this case."

Dist. Ct. Order at 9 (filed Mar. 30, 2006).

Mr. Price's fourth contention that his sentence violated his Sixth

Amendment right to due process because the court believed the guidelines were

mandatory also fails. Blakely is not retroactively applicable to cases on collateral

review. United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005). Similarly,

Mr. Price's fifth claim, that his sentence violated his Fifth Amendment due

process rights also fails because neither Blakely nor Booker is

retroactive to

initial petitions on collateral review. Id.; United States v.

Bellamy, 411 F.3d

1182, 1186 (10th Cir. 2005). The district court's resolution of this claim is not

reasonably debatable.

Based on our review of the record on appeal, the district court's order, and

Mr. Price's submissions to this court, we are not persuaded jurists of reason

would disagree with the district court's disposition of Mr. Price's § 2255 motion

to vacate. Mr. Price is reminded that his request to proceed in forma pauperis

was denied by the district court and he remains obligated for the unpaid balance

of his docket and filing fees for this appeal. Accordingly, we DENY Mr. Price's

request for a COA and DISMISS the matter.

Entered for the Court,

Robert H. Henry

Circuit Judge

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