# Curry v. United States

> District Court, W.D. Oklahoma · December 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10387979

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** December 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387979

## How later opinions describe it (automated extraction)

- holding defendant’s unconditional “open” plea to drug charges was not a conditional plea under Rule 11(a)(2), so defendant was barred from appealing district court’s rulings on defendant’s pre-plea suppression motions

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. CR-16-120-R
) CIV-19-199-R
DONNY DESHON CURRY, )
)
Defendant. )

ORDER

Before the Court is the Motion to Vacate filed by Defendant Donny Deshon Curry
(Doc. No. 82). The United States responded in opposition to the motion and Defendant
filed a Reply in support of his motion.1 Upon consideration of the parties’ submission, the
Court finds as follows.
28 U.S.C. § 2255 (2012) provides that prisoners in federal custody may challenge
their sentences if: (1) the sentence was imposed in violation of the United States
Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the
sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence
is otherwise subject to collateral review. § 2255(a). Relief is available under Section 2255
only if “the claimed error constituted a fundamental defect which inherently results in a
complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979)
(internal quotation marks and citation omitted). The Court must presume “that the

1 The Court has also received Notices of Supplemental Authority from both parties which have been considered
herein, even if not directly addressed by this Order.
proceedings leading to the conviction were correct,” and the burden is on the movant to
demonstrate otherwise. Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). The
Court must hold an evidentiary hearing unless the motion, files, and records conclusively

show that the prisoner is not entitled to relief. United States v. Galloway, 56 F.3d 1239,
1240 n.1 (10th Cir. 1995).
On October 27, 2016, Defendant pled guilty to Count 3 of a Superseding Indictment
charging him with being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). He was sentenced on April 10, 2017 to 188 months imprisonment based in part

on his status as an Armed Career Criminal under the enhanced penalty provision set forth
in 18 U.S.C. § 924(e)(1). An attempt at appeal was dismissed because of the appellate
waiver contained in his Plea Agreement.2 Defendant files the instant Motion to Vacate,
asserting six grounds for relief, each of which relies on the alleged ineffective assistance
of counsel: (1) his counsel permitted him to plead guilty without ensuring that he

understood the severity of pleading guilty in light of the potential for the Armed Career
Criminal enhancement; (2) that counsel’s arguments in support of the suppression of
evidence were not well developed; (3) counsel failed to object to the PSR and to the Court’s
decision to treat two drug counts from the same criminal case as separate offenses in

2 This is not technically Mr. Curry’s first § 2255 motion; he filed a prior motion after his counsel failed to file a notice
of appeal. As succinctly described by the Tenth Circuit in its Order and Judgment dismissing the case:
Counsel for Mr. Curry initially failed to file an appeal. Mr. Curry then filed a pro se 28 U.S.C. §
2255 motion, asserting his counsel was ineffective for failing to file an appeal when Mr. Curry had
requested that counsel do so. The district court granted the motion on that issue, vacated the prior
judgment, and then reentered the judgment so Mr. Curry could perfect an appeal.
Doc.No. 83-5, p. 2.
support of the ACCA enhancement3; (4) counsel failed to object when the Government
breached the plea agreement by failing to follow through on the promise of sentencing him
within the statutory range of punishment, that is not more than ten years;4 (5) appellate

counsel failed to raise an issue in her initial response to the motion by the United States to
enforce the appellate waiver resulting in loss of the issue; and (6) his plea was not knowing
and voluntary because of counsel’s errors.
To establish ineffective assistance of counsel, Defendant must fulfill the familiar
two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). He must

establish both that counsel’s performance was deficient and that this deficiency prejudiced
him. See Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016). To demonstrate
prejudice, Defendant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. The Court may consider the two prongs in any order, see id.
at 697; an insufficient showing on either one is fatal to an ineffective-assistance claim, see
id. at 700. A court considering a claim of ineffective assistance of appellate counsel for
failure to raise an issue is required to look to the merits of the omitted issue. Where the
omitted issues are meritless, counsel's failure to raise them on appeal does not constitute

3 Defendant’s attorney objected to the use of the predicate offenses at sentencing, which the Court overruled.
Doc.No. 83-2, pp. 6-7.
4 The maximum sentence applicable without the ACCA enhancement was ten years.
constitutionally ineffective assistance of counsel. Hooks v. Ward, 184 F.2d 1206, 1221
(10th Cir.1999), see also, Smith v. Robbins, 528 U.S. 259, 288 (2000).
Defendant first argues his counsel was constitutionally ineffective at sentencing

because he failed to object to use of two of his prior convictions, Assault with a Dangerous
Weapon and Robbery with a Firearm, to support application of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), enhancement.5 He further complains that counsel
failed to object to the Court’s use of two prior drug convictions stemming from a single
case before the Honorable Judge Stephen P. Friot, as separate predicate offenses for the

ACCA enhancement.
The offense of conviction is a violation of 18 U.S.C. § 922(g), and the
defendant has two prior violent felony convictions (Robbery with Firearms,
CF-1196-3025; Assault with a Dangerous Weapon, JF-1993-1812) and two
prior serious drug offenses (Distribution of Cocaine, CR-06-297, Counts 1
and 2), which were committed on different occasions. Therefore, the
defendant is an armed career criminal and subject to an enhanced sentence
under the provisions of 18 U.S.C. § 924(e). Because the defendant also
possessed a firearm and ammunition in connection with another felony
offense, that offense being Possession of Marijuana with Intent to Distribute,
the offense level [is] 34. . . USSG § 4B1.4(b)(3)(A).

Pre-sentence Investigation Report (Doc.No. 46, ¶ 25).
To the extent Defendant argues that counsel failed to object to the consideration of
his assault with a deadly weapon and robbery with a firearm convictions being used for
purposes of enhancement under the ACCA, his position is not supported by the record. In
the Final Presentence Investigation Report, the probation officer noted the objection to

5 The sentence for possessing a firearm as a felon under 18 U.S.C. § 922(g)(1) is capped at ten years imprisonment,
unless the person being sentenced has three or more prior convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(a)(2), (e)(1).
relying on each of these prior convictions and concluded the objections were unfounded.
In light of the objections to the presentence report, the Court addressed the use of the prior
convictions at sentencing and reached the same conclusion as the probation officer.6 The

Court addressed the issue at sentencing in light of the objection, concluding (that the
objection to paragraph 35 of the presentence report was unfounded. (Doc. No. 58, p. 7).
Similarly, and contrary to Defendant’s assertion, counsel did object to the robbery with a
firearm being used to support the ACCA enhancement, an objection the Court overruled.
Id.

With regard to Defendant’s prior drug convictions being used to support the ACCA
enhancement, counsel did object to the Court using both counts from a single criminal case
as separate convictions to support the enhancement. That the two counts were from the
same underlying criminal case is not dispositive. Two offenses are “committed on
occasions different from one another” when they are “committed at distinct, different

times.” United States v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (internal quotation
marks and citations omitted). If the defendant decided to continue with a criminal course
of conduct after “a meaningful opportunity” to stop, the crimes will be considered distinct.
United States v. Delossantos, 680 F.3d 1217, 1220 (10th Cir. 2012). In overruling counsel’s
objection, the Court applied the above law and concluded that the two drug counts in Case

6 To the extent Defendant relies on Johnson v. United States, 135 S.Ct. 2551 (2015), his reliance is misplaced. In
Johnson, the Supreme Court invalidated the residual clause of § 924(e). Defendant was sentenced after Johnson and
the Court relied on the elements clause § 924(e)(2)(B)(i) in concluding that robbery with a firearm and assault and
battery with a dangerous weapon qualified as violent felonies.
No. CR-06-297-F were committed on two occasions in light of the standard set forth above.
(Doc.No. 58, p. 6-7). Defendant’s contention that counsel failed to object is without merit.
Defendant contends that counsel failed to adequately explain the ACCA

enhancement and should have asked for additional time to explain the potential
enhancement prior to entering his plea of guilty. The Court disagrees that counsel’s
performance was constitutionally inadequate. At the plea hearing, the Court informed
Defendant that, if the Court determined at sentencing that his criminal history fit the Armed
Career Criminal statute, he would have to file a § 2255 to challenge that finding rather than

seeking relief on appeal. The Defendant indicated to the Court that he had no questions
about the process. (Doc. No. 64, p. 11).7 Defendant has failed to establish that counsel’s
performance was deficient and therefore is not entitled to § 2255 relief on Claim 1 of the
instant motion.
In Claim 2, Defendant argues counsel was constitutionally ineffective because the

“Motion to Suppress was not on course to allow the court to grant the petitioner’s Motion
to Suppress.” (Doc.No. 83, p. 15). On August 29, 2016, counsel filed a Motion to Suppress
on behalf of Mr. Curry. The Court set the motion for hearing after receiving the
Government’s response thereto. Following argument at the October 17, 2016 hearing, the
Court denied the motion. Defendant contends counsel’s efforts in seeking the suppression

7 The Government was asked at the plea haring to identify the maximum punishment Defendant could face from the
charge to which he was pleading guilty. The prosecutor stated, “if the defendant were to be determined by this Court
to be an Armed Career Criminal, he would face a term of imprisonment of not less than 15 years.” (Doc.No. 64, p. 4).
The prosecutor indicated that otherwise the statutory maximum was ten years. Defendant was clearly informed about
the implications of an ACCA finding on his sentence.
of the evidence were sub-par and that counsel should have allowed him to “pull the plea”
because he would then have been able to appeal denial of the motion to suppress.8
Defendant entered an unconditional plea of guilty and, as indicated in his plea

colloquy and plea papers, he was aware of his appellate waiver. His attorney argued at the
motion to suppress hearing that police officers waited too long to search the residence in
question, fifteen days after the original incident that led to issuance of a warrant. He further
argued that the items listed in the warrant were subterfuge to permit officers to search for
items related to Mr. Curry, although his ties to the home were tenuous and that the warrant

was stale.9 Although Defendant is correct that he could not appeal the denial of the motion
to suppress, this was the result of Defendant’s decision to enter an unconditional plea of
guilty. See, e.g., United States v. Adigun, 703 F.3d 1014, 1022 (7th Cir. 2012) (holding
defendant’s unconditional “open” plea to drug charges was not a conditional plea under
Rule 11(a)(2), so defendant was barred from appealing district court’s rulings on

defendant’s pre-plea suppression motions). Defendant stated on the record at his plea
hearing that he made the decision to plead guilty. Once a defendant has entered a plea of
guilty, he may not raise subsequent claims regarding the deprivation of his constitutional
rights occurring before the plea. Although Fed. R. Crim. P. 11(a)(2) allows a defendant to
enter a conditional guilty plea “reserving in writing the right to have an appellate court

review an adverse determination of a specified pretrial motion” Defendant does not

8 To the extent Defendant complains that his original counsel failed to file a notice of appeal thereby prejudicing him
with regard to denial of the motion to suppress, any error caused by not filing a notice of appeal was corrected when
the Court entered a new judgment and Defendant pursued his direct appeal.
9 The government pointed out that if Mr. Curry was not a resident of the home he lacked standing to challenge the
search. (Doc. No. 77, p. 9).
indicate that he requested such a plea, nor is there evidence that such a request would have
been granted as is required for a conditional plea. Finally, at the hearing on his change of
plea, Mr. Curry indicated that he was aware that with limited exception he was waiving his

right to appeal and he had no questions, although counsel raised the ACCA enhancement
which the Court addressed as set forth above. Defendant has failed to establish that
counsel’s performance was deficient with regard to the motion to suppress.
As his third ground for relief under § 2255, Defendant argues that counsel was
ineffective because he failed to challenge the Court’s use of two counts from the same

criminal case, CR-06-297-F, as separate predicate offenses for the ACCA enhancement.
(Doc.No. 83, p. 21). However, counsel did raise the issue and this Court was aware that
both drug offenses were part of the same underlying case and that Mr. Curry was arrested
one time and charged with both counts. As noted at sentencing, however, the distribution
counts were premised on separate drug transactions on different days. In Count One of the

Indictment in CR-06-297-F, Defendant was charged with distribution of cocaine base on
January 31, 2006 in violation of 21 U.S.C. § 841(a)(1). Count 2, which charged another
count of distribution of cocaine base under § 841(a)(1) was predicated on behavior
occurring a week later, February 7, 2006. Furthermore, the Court found that Defendant had
a meaningful opportunity to cease engaging in criminal activity between the two sales of

crack cocaine to undercover officers. Finally, to the extent Defendant relies on the language
in U.S.S.G. § 4A1.2, that provision of the sentencing guidelines is not relevant in the
ACCA context. United States v. Harris, 643 F. App'x 734, 737 (10th Cir. 2016) (“However,
in United States v. Delossantos, 680 F.3d 1217 (10th Cir.2012), we observed that § 4A1.2
is irrelevant in the ACCA context. Delossantos, 680 F.3d at 1220–21 n. 3.”). Defendant
has failed to establish that counsel was constitutionally ineffective with regard to the
treatment of his prior drug convictions as predicate offenses under ACCA.

Defendant further contends counsel was ineffective in how he objected to the
Government’s reliance on two prior convictions as crimes of violence in support of the
ACCA enhancement. As noted above, defense counsel did object. Furthermore, any
additional objections would have been futile, because at least one of the convictions,
robbery with a firearm in violation of Okla. Stat. tit. 21 § 801 is indisputably a violent

felony under Tenth Circuit authority.
For the government to prevail, Defendant’s status under Okla. Stat. tit. 21 § 801
must qualify under § 924(e)(2)(B)’s elements clause, which requires that the conviction
“ha[ve] as an element the use, attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

To determine whether a prior offense is a crime of violence, we apply
either the categorical approach or the modified categorical approach.
Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2279, 186 L.Ed.2d
438 (2013). If the statute contains a single set of elements, we look to the
elements of the statute and not to the facts of the individual crime. Id. If the
statute of conviction is divisible -- that is, if it “lists multiple, alternative
elements and so effectively creates several different crimes”— we apply the
modified categorical approach. United States v. Taylor, 843 F.3d 1215, 1220
(10th Cir. 2016). We review a limited set of materials, including the charging
document, to determine which elements applied to defendant’s particular
conviction. Id.

United States v. Hill, 722 F. App’x 814, 817 (10th Cir. January. 31, 2018).10

10 In the categorical approach the Court considers the elements of the crime, not the facts of the case. United States v.
Harris, 844 F.3d 1260, 1263 (10th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1438, 200 L.Ed.2d 716 (2018).
Hill also has two convictions for robbery with a firearm under Okla.
Stat. tit. 21 § 801. Oklahoma defines robbery as a “wrongful taking of
personal property in the possession of another, from his person or immediate
presence, and against his will accomplished by means of force or fear.” Okla.
Stat. tit. 21 § 791. A defendant is subject to an increased penalty if he “with
the use of any firearms or other dangerous weapon . . . robs or attempts to
rob any place of business, residence, or banking institution or other place
inhabited or attended by any person or persons.” Okla. Stat. tit. 21 § 801. The
elements of robbery with a dangerous weapon under § 801 include the
wrongful taking of property from another “by force/fear” using a dangerous
weapon. Primeaux v. State, 88 P.3d 893, 906 (Okla. Crim. App. 2004) A
conviction under § 801 therefore required proof of the use, threatened use, or
attempted use of physical force.

Id. In United States v. Byers, 739 F. App’x 925 (10th Cir. June 27, 2018), the court
again concluded that robbery with a firearm under § 801 satisfies the use of force clause of
the ACCA. “This court previously has determined that Oklahoma robbery by “force or
fear,” as defined in § 791, satisfies the use of force clause of the ACCA. See United States
v. Cherry, 641 F. App’x 829, 831-33 (10th Cir. 2016).” Id. at 928. Robbery with a dangerous
weapon under § 801 thus necessarily includes the wrongful taking of property from another
“by force or fear” using a dangerous weapon.” Id. at 928.11
Defendant further challenges the Court’s reliance at sentencing on, and counsel’s
manner of objecting to, a juvenile conviction for assault with a deadly weapon, which,
according to the Presentence Investigation Report, was originally charged as Pointing a
Firearm. (Doc.No. 46, ¶ 35). Again, as set forth above, defense counsel objected to relying

The Court considers the “minimum culpable conduct”— here, the minimum degree of force — required for a
conviction under the state law. Id. at 1264.
11 In Stokeling v. United States, 139 S. Ct. 544, 549 (2019), the Supreme Court held that a robbery offense that has as
an element the use of force “sufficient to overcome a victim’s resistance” necessitates the use of ‘physical force’ as
required by Curtis Johnson v. United States, 559 U.S. 133, 138 (2010) for purposes of the elements clause. See also
United States v. Harbert, 772 F. App’x 710 (10th Cir. June 14, 2019)(rejecting under Stokely argument that Oklahoma’s
statute defining robbery does not qualify as violent felony conviction for the ACCA).
on the conviction for enhancement under the ACCA; the probation officer rejected the
objection but noted that, even if the Court determined the conviction in JF-1993-1812
should not be considered for ACCA purposes, Mr. Curry had three other predicate

convictions. Having rejected Defendant’s challenges regarding the two serious drug
offense convictions and his conviction under § 801, the Court finds no need to assess
counsel’s performance as it pertains to Defendant’s juvenile conviction because success in
challenging this claim would not alter the outcome herein.
In Claim Four, Defendant asserts counsel was ineffective because he failed to bring

to the Court’s attention that the Government was in breach of the plea agreement. (Doc.
No. 83, p. 43). Counsel’s ineffectiveness, Defendant argued, rendered the plea involuntary.
Defendant’s contention is premised on paragraph 8 of the Plea Agreement, which provides:
Defendant understands that the Court will consider those factors in 18
U.S.C. § 3553(a) in determining his sentence. Defendant also understands
that the Court has jurisdiction and authority to impose any sentence within
the statutory maximum for the offense(s) to which he is pleading guilty.

(Doc.No. 83-8, ¶ 8). Defendant contends that, because he was sentenced under the ACCA,
his sentence was not within the statutory maximum range of ten years. The Court finds no
basis in the Plea Agreement for concluding that the Government breached any of its
obligations. First, during the plea colloquy, the Court had the following exchange with
Mr. Curry:
The COURT: Do you understand the sentence you’ll receive is solely
a matter within the control of the judge, and while the Court assumes you
hope to receive leniency, are you prepared to accept any punishment
permitted by law which the Court sees fit to impose?
The DEFENDANT: Yes, sir.
(Doc.No. 90-7, at 8). The United States correctly noted at the beginning of the plea hearing
that the Court would be determining whether Defendant was an Armed Career Criminal.
Later Defendant’s counsel questioned whether Mr. Curry could pursue a direct appeal of a

determination by the Court that he was an Armed Career Criminal. The Court helped
explain that a § 2255 motion would be the remedy if the Court found the enhancement
applicable. Id. pp. 5, 9 and 11.12
In short, counsel cannot be considered constitutionally ineffective for failing to
argue that the United States breached the plea agreement when the agreement does not

preclude consideration of the Armed Career Criminal provision and further, the Court, not
the government, was responsible for sentencing. Defendant was made aware of and agreed
to this procedure.
In Claim (5) Defendant challenges the effectiveness of appellate counsel, arguing
that she should have argued to the Tenth Circuit that his sentence exceeded the statutory

maximum because the Armed Career Criminal provisions did not apply. Counsel raised the
issue in a Motion for Rehearing, arguing that because the ACCA enhancement was
improperly applied Defendant’s sentence exceed the applicable maximum statutory range

12 In addition to paragraph 8, set forth in part above, the Plea Agreement includes the following:
3. The maximum penalty that could be imposed as a result of Count 3 of this plea is 10
years imprisonment or a fine of $250,000.00, or both such fine and imprisonment, as well as a
mandatory special assessment of $100.00, and a term of supervised release of not more than 3 years.
The penalty that could be imposed as a result of this plea, if the defendant is found by the
Court to be an “Armed Career Criminal,” that is a person who has at least 3 previous convictions by
a court referred to in Title 18, United States Code, Section 922(g)(1) for violent felony or a serious
drug offense, or both, committed on occasions different from one another, is not less than fifteen
years imprisonment, a fine of up to $250,00.00, and a term of supervised release of 5 years.

Doc.No. 83-8, p. 2. The Plea Agreement advised Defendant of the statutory range of punishment, including the
provision that an ACCA finding mandated fifteen years imprisonment.
and the appellate waiver was inapplicable. When counsel raised the issue in a petition for
rehearing, the court denied the petition finding that the issue was raised too late.
Even assuming it was deficient performance by appellate counsel to fail to raise this

issue, Defendant was not prejudiced, because his Robbery with a Firearm qualifies as a
violent felony and he has two prior convictions for serious drug offenses, as set forth above.
Accordingly, Defendant cannot meet the second prong of Strickland with regard to his
ineffective assistance of appellate counsel claim and therefore he is not entitled to relief on
Claim 5.

In Claim 6 Defendant challenges the voluntariness of his plea, arguing that counsel
was constitutionally ineffective because he failed to inform Mr. Curry that the categorical
approach had to be applied and because Defendant was not informed of the elements of the
offense. Neither claim provides Defendant with a basis for § 2255 relief. With regard to
the elements of the offense, the Plea Agreement signed by Defendant includes the

following:
Defendant agrees to enter a plea of guilty to Count 3 in Case Number
CR-16-120-R charging felon in possession of a firearm and ammunition in
violation of Title 18, United States Code. Section 922(g)(1). To be found
guilty of Count 3, as charged in the Indictment, defendant must admit, and
does admit, that: 1) he knowingly possessed a firearm and ammunition, 2) he
was convicted of a felony, that is, a crime punishable by imprisonment for a
term exceeding one year, before he possessed the firearm and ammunition,
and 3) before he possessed the firearm and ammunition, the firearm and
ammunition had moved at some point from one state to another.

(Doc.No. 36, ¶ 2). Accordingly, Defendant’s contention that he was not informed
of the elements of the offense is without merit in light of his signature and acquiescence to
the terms of the Plea Agreement. To the extent Defendant believes he was entitled to be
informed about the categorical approach, he cites no authority in support of this contention,
nor does he indicate that such knowledge would have altered the outcome of the
proceedings. Furthermore, this Court need not undertake a categorical analysis where the

Tenth Circuit has concluded that categorically, first degree robbery, including robbery with
a firearm under § 801, is a crime of violence for purposes of the ACCA. Defendant fails to
establish that counsel was constitutionally ineffective as set forth in Claim 6.
In a Notice of Supplemental Authority (Doc.No. 97) Defendant notes that the
Supreme Court is scheduled to consider Shular v. United States, 736 F. App’x 876 (11th

Cir. 2018), cert. granted, 139 S.Ct. 2773 (2019), which he believes is relevant to whether
his prior federal drug offenses are predicate offenses under the ACCA. In Shular, the
Supreme Court will consider whether the determination of a "serious drug offense" under
the Armed Career Criminal Act requires the same categorical approach used in the
determination of a "violent felony” under the Act. Here, Defendant was sentenced using

the definition of “serious drug offense” found in § 924(e)(2(A)(i), that is, “an offense under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import
and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum
term of imprisonment of ten years or more is prescribed by law.” Shular, on the other hand,
involves (A)(ii) and how courts are to interpret state drug offenses for purposes of the

ACCA. Here there is no need for interpretation, the relevant federal statutes are identified
in § 924(e) and the issue presented in Shular is simply not relevant.
The Court finds that Defendant is not entitled to § 2255 relief and no evidentiary
hearing is necessary. See Rule 8(a) of the Rules Governing Section 2255 Proceedings for
the United States District Courts. Accordingly, Defendant’s Request for Expansion of the
Record/Evidentiary Hearing (Doc.No. 84) is DENIED. Under Rule 11 of the Rules
Governing Section 2255 Proceedings, the Court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. A certificate of
appealability 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). To satisfy this standard, the applicant must
demonstrate that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir.
2004) (quoting Tennard vy. Dretke, 542 U.S. 274, 282 (2004)). For reasons stated above,
the Court finds that Mr. Curry has not satisfied this standard. The Court therefore denies a
certificate of appealability as to its ruling on Defendant’s Section 2255 motion.
IT IS SO ORDERED this 10" day of December 2019.

UNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387979. Public record. Not legal advice.