United States v. Jenkins

613 F. App'x 754

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY

HARRIS L. HARTZ, Circuit Judge.

Defendant Steven Jenkins seeks a certificate of appealability (COA) to appeal the denial of his motion for relief under 28 U.S.C. § 2255 by the United States District Court for the Western District of Oklahoma. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of motion under § 2255). He is entitled to a COA only if he “has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

In district court Defendant raised four grounds for relief: ineffective assistance of trial counsel in the investigation- of this case, a conflict of interest of his trial counsel, ineffective assistance of trial counsel at sentencing, and ineffective assistance of appellate counsel for failing to raise the three prior claims of ineffective trial counsel. He later added an additional claim in anticipation of a decision by the United States Supreme Court in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

In this court Defendant raises only his claim based on Johnson. But Johnson is irrelevant to his prosecution and sentence. Johnson held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. See Johnson 135 S.Ct. at 2563. True, Defendant was sentenced under the ACCA. But the sentence imposed on Defendant was not based on the voided residual clause. Rather, his ACCA enhancement was under 18 U.S.C. § 924(e)(2)(A). See United States v. Jenkins, 535 Fed.Appx. 720, 721 (10th Cir.2013) (sentence enhancement based on pri- or convictions for various drug offenses).

It is obvious that Johnson can provide no relief to Defendant. We DENY his request for a COA and dismiss the appeal. We GRANT his request to proceed in forma pauperis.