United States v. Hill, 10th Cir. (2010)
United States v. Hill, 10th Cir. (2010)
United States v. Hill, 10th Cir. (2010)
August 4, 2010
Elisabeth A. Shumaker
Clerk of Court
No. 10-5012
(D.C. Nos. 4:08-CV-00110-CVE-FHM
and 4:03-CR-00071-CVE-1)
(N.D. Okla.)
Defendant-Appellant.
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Billy Joe Hill, a convicted felon, pawned a shotgun. When he later tried to
reacquire it, he indicated on a firearms transaction record that he had no felony
convictions. He was later arrested and tried before a jury, where he represented
himself with stand-by counsel. The jury convicted him of one count of being a
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 and 10th Cir. R. 32.1.
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search with respect to count three; and (9) trial counsel and the court failed to
advise him of his possible sentence.
In a detailed and thorough decision, the district court denied relief. The
court concluded that Mr. Hill had knowingly, voluntarily, and intelligently
decided to proceed at trial without counsel after his court-appointed attorney
moved to withdraw because she could not ethically present certain evidence
Mr. Hill wished to use. Because Mr. Hills claim that he was forced to proceed
pro se at trial was meritless, the court concluded that appellate counsel was not
ineffective for failing to raise it on direct appeal. See United States v. Cook,
45 F.3d 388, 393 (10th Cir. 1995) (If the omitted issue is without merit,
counsels failure to raise it does not constitute constitutionally ineffective
assistance of counsel.) (quotation omitted). The court made a similar
determination with respect to many of the other grounds Mr. Hill raisedthat the
grounds were meritless, so there was no ineffective assistance of counsel for
failing to raise the ground on appeal. The court also ruled that a number of
grounds for relief not couched in terms of ineffective assistance of appellate
counsel were procedurally barred because they could have been raised on direct
appeal, and Mr. Hill had failed to show cause for that failure and prejudice or a
fundamental miscarriage of justice. See United States v. Cox, 83 F.3d 336, 341
(10th Cir. 1996). The court further determined that some of Mr. Hills claims
were barred because this court had already considered and decided them adversely
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to Mr. Hill, and that other claims failed because they were either vague or
conclusory.
In order to appeal the district courts decision, Mr. Hill must obtain a
certificate of appealability (COA). 28 U.S.C. 2253(c)(1)(B). The issuance of a
COA is a jurisdictional prerequisite to an appeal from the denial of a 2255
motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA may be issued
only if the applicant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. 2253(c)(2). For those claims the district court
denied on the merits, Mr. Hill must demonstrate that reasonable jurists would
find the district courts assessment of the constitutional claims debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).
For those claims the district court denied on a procedural ground, Mr. Hill must
show that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and . . . whether the district
court was correct in its procedural ruling. Id.
Having reviewed the record and the controlling law, and liberally
construing Mr. Hills pro se filings, see Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008), we conclude that, for substantially the same reasons set forth by
the district court in its January 22, 2010, Opinion and Order, Mr. Hill has not met
the requirements for a COA. The district courts analysis was sound and
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well-reasoned, and we need not reiterate it. However, we briefly address one
misunderstanding that pervades Mr. Hills appellate filings.
Under Okla. Stat. tit. 21, 51.1B, a felony conviction that is more than ten
years old may not be used to enhance a later felony sentence. Mr. Hill claims that
this state statute forecloses the use of a 1975 state conviction for armed robbery
as one of the three predicate felonies necessary to enhance his federal sentence
under the ACCA. But the Oklahoma statute has no bearing on the use of that
conviction to enhance a sentence for a federal crime under the ACCA. The
ACCA is federal law and contains no temporal limitation on predicate felonies, as
noted in United States v. Lujan, 9 F.3d 890, 893 (10th Cir. 1993), where we
rejected the argument that prior [state] convictions should be eliminated from
consideration under the ACCA because they are ancient. And although
4A1.2(e) of the Sentencing Guidelines contains a ten-year limitation on prior
sentences analogous to the Oklahoma statute, it is not applicable to sentence
enhancements under the ACCA. See U.S. Sentencing Guidelines Manual 4B1.4
appl. n.1 (2004); Lujan, 9 F.3d at 893.
For the foregoing reasons, we DENY Mr. Hills application for a certificate
of appealability and DISMISS this appeal.