F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

APR 7 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 98-4054

HARRY JAMAR GORDON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
(D.C. No. 97-CV-322)
Submitted on the briefs:
Bruce C. Lubeck, Assistant United States Attorney, and Wayne T. Dance, Assistant
United States Attorney, (Paul M. Warner, United States Attorney, with them on the brief)
Salt Lake City, Utah, for Plaintiff-Appellee.
Vicki Mandell-King, Assistant Federal Public Defender, (Michael G. Katz, Federal
Public Defender, with her on the brief) Denver, Colorado, for Defendant-Appellant.
Before BALDOCK, EBEL, and LUCERO, Circuit Judges.*

After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*

BALDOCK, Circuit Judge.

Defendant Harry Jamar Gordon appeals the district courts denial of his 28 U.S.C.
2255 motion to vacate, set aside or correct sentence.1 After denying Defendants
2255 motion, the district court did not grant his application for a certificate of
appealability (COA). Although Defendant did not renew his request for a COA in this
court, we construe his notice of appeal as such a request. See Fed. R. App. P. 22(b)(2).
Therefore, we must address whether a COA should issue for which, if any, of
Defendants claims. See 28 U.S.C. 2253(c)(1)(B) (unless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the court of appeals
from . . . the final order in a proceeding under section 2255).
I.
First, we address whether a COA should issue for Defendants claims arising from
alleged violations of Fed. R. Crim. P. 32. In his 2255 motion, Defendant argued that
the sentencing court violated: (1) Fed. R. Crim. P. 32(c)(3)(A) by failing to ensure that
Defendant reviewed the presentence report; and (2) Fed. R. Crim. P. 32(c)(1) by failing to
recognize and resolve factual inaccuracies in the presentence report. In order for a COA
to issue, Defendant must make a substantial showing of the denial of a constitutional
right. 28 U.S.C. 2253(c)(2). Defendants claims are based, not on constitutional
The facts and procedural history of this case are set forth in United States v.
Gordon, 4 F.3d 1567 (10th Cir. 1993), and will not be repeated here.
1

violations, but instead on violations of Rule 32. Defendant argues, however, that a COA
should issue, not only for constitutional violations, but also for violations of federal law.
In response, the Government argues that the language of
2253(c)(2) plainly limits COAs to denials of constitutional rights.
In Young v. United States, 124 F.3d 794 (7th Cir. 1997), the Seventh Circuit
addressed this issue in regard to a Bailey v. United States, 516 U.S. 137 (1995),
challenge to an 18 U.S.C. 924(c) conviction. Recognizing that an incorrect application
of the terms use or carry in 924(c) does not violate any rule of constitutional law,
the court concluded that 2253(c)(2) does not permit a COA to issue on a purely
statutory claim. Young, 124 F.3d at 799.2 In United States v. Harfst, F.3d , 1999 WL
71527 (10th Cir. Feb. 16, 1999), we cited Young with approval, and stated that while
nonconstitutional sentencing issues are proper bases for [a] defendant to proceed in
the district court, . . . [these claims] would not support issuance of a certificate of
appealability because they do not assert the denial of a constitutional right. Id. at *3.
In support of his contrary position, Defendant points to 2255, which allows for
the filing in district court of a motion to vacate, set aside or correct a sentence imposed in
The procedural posture of Young differs slightly from the present case, because
in Young the district court granted the COA. 124 F.3d at 799. After discussing why a
COA should not have issued on a statutory claim, the court addressed the appeal on the
merits because a COA had been issued, the government had not challenged the issuance
of the COA, and the use of the COA as a screening device had already been defeated. Id.
Our case differs because no COA has been granted in this case and the Government
opposes issuance of one.
2

violation of the Constitution or the laws of the United States. 28 U.S.C. 2255.
Defendant urges us to read 2253(c)(2) in tandem with 2255 and hold that a COA may
issue if a defendant makes a substantial showing of the denial of a federal right. We
decline to read such language into the statute. We find no inconsistency between 2255
and 2253(c)(2). The two provisions address different steps in the judicial process.
Congress, in enacting 2253(c)(2), differentiated between the type of petition that can be
filed and the type that can be appealed. See Young, 124 F.3d at 799. Petitions may be
filed in district court alleging violations of the Constitution or federal law. The claims
may only be appealed, however, if they involve the denial of constitutional rights. Id.
Applying the plain language of 2253(c)(2), we may not issue a COA for Defendants
nonconstitutional Rule 32 claims.
Alternatively, Defendant argues, relying on United States v. Gattas, 862 F.2d 1432
(10th Cir. 1988), that the violations of federal law he alleges constitute fundamental
defects which compel the issuance of a COA. We disagree. In Gattas, we held that a
sentencing courts violations of Rule 32(c)(3)(D), by failing to make a written record of
its resolution of contested matters in the PSR and by failing to attach the record to the
PSR, were a significant enough part of the sentencing process to support an action under
Section 2255. Gattas, 862 F.2d at 1434 (emphasis added).
By relying on Gattas, Defendant seems to argue that because we have held that
certain Rule 32 violations are cognizable under 2255, we must grant a COA on his Rule
4

32 claims in order to be consistent. Defendant fails to recognize that Gattas addressed

the type of claims that can be brought under 2255, not the type of claims for which a
COA may be granted under 2253(c)(2). In Gattas, we delineated the scope of 2255.
Not every violation of federal law can be remedied under 2255. See United States v.
Talk, 158 F.3d 1064, 1069 (10th Cir. 1998). Only if the violation constitutes
a fundamental defect which inherently results in a complete miscarriage of justice, [or]
an omission inconsistent with the rudimentary demands of fair procedure can 2255
provide relief. Id. (internal quotations omitted). Although our circuit precedent
classifies certain Rule 32 violations as fundamental defects, cognizable under 2255,
2253(c)(2) precludes the grant of a COA on such nonconstitutional claims.3
Accordingly, we deny Defendants request for the issuance of a COA for the alleged
violations of Rule 32.4

II.
Significantly, when Gattas was decided certificates of appealability were not yet
required. Instead, courts granted certificates of probable cause, which issued upon a
substantial showing of the denial of an important federal right. Barefoot v. Estelle, 463
U.S. 880, 893 (1983) (emphasis added). This much broader standard would have
encompassed Defendants nonconstitutional claims. Congress replaced the probable
cause standard with 2253(c)(2) and, in doing so, chose to limit appeals to constitutional
claims.
3

We note that although a COA will not issue on the alleged Rule 32 violations,
the merits of Defendants related due process claims arising from alleged factual
inaccuracies in the PSR will be addressed upon remand to the district court. See Part II,
supra.
4

Defendant next argues that the district court erred in dismissing his remaining
claims as procedurally barred.5 In his 2255 motion, Defendant claims his due process
rights were violated because he was sentenced on the basis of incorrect information and
denied an evidentiary hearing. Defendant also raised an ineffective assistance of counsel
claim based on the conduct of substitute counsel. Because we conclude that the district
court erroneously determined that these claims were procedurally barred, we grant a COA
for these constitutional claims.
The district court found that Defendants due process claims and his claim of
ineffective assistance of substitute counsel were procedurally barred because they were
raised and disposed of in Defendants direct appeal. See United States v. Gordon, 4 F.3d
1567 (10th Cir. 1993) (Gordon I). In the response brief, the Government conceded that
the district court erred when it found that these claims were procedurally barred by
Gordon I. After reviewing the briefs, the record, and our opinion in Gordon I, we agree
that the claims are not procedurally barred.
In Gordon I, Defendant argued that his guilty plea was involuntary because of
original counsels failure to: (1) inform Defendant that relevant conduct would be
considered in his sentencing; (2) inform Defendant of his Fifth Amendment privilege
against self-incrimination during the presentence interview; (3) obtain Defendants PSR
The district court concluded that all of Defendants claims were procedurally
barred. We need not decide whether the district court properly concluded that the Rule 32
claims were barred, however, because we declined to a issue a COA for those claims.
5

and request an evidentiary hearing. Defendant also argued that the district court abused
its discretion by denying his motion to withdraw his guilty plea and that his Fifth
Amendment rights were violated because statements he made during the presentence
interview were used against him. The claims in Gordon I did not include a due process
claim.
Furthermore, the 2255 claim of ineffective assistance of counsel differs from the
Gordon I claim in two significant ways. First, the 2255 claims involve the conduct of
substitute counsel, not original counsel. Gordon I involved the conduct of original
counsel only.
Second, the factual predicate for the claims differ. In the 2255 motion,
Defendant alleges substitute counsel was ineffective for not disclosing the PSR to
Defendant or discussing it with him, and by failing to bring to the attention of the
sentencing court factual inaccuracies in the PSR which were relevant to determinations of
relevant conduct and acceptance of responsibility.6 In Gordon I, Defendant challenged
original counsels failure to obtain the PSR, not counsels failure to provide the PSR to
Defendant. In fact, in Gordon I, we determined that the record showed that original
counsel had indeed obtained the PSR. Gordon I did not address allegations that counsel

We note that substitute counsel represented Defendant in his direct appeal, as

well as at sentencing, and appropriately did not raise claims of his own ineffectiveness as
a ground for appeal. See United States v. Galloway, 56 F.3d 1239, 1241 (10th Cir. 1995)
(en banc).
6

was ineffective for failing to provide the PSR to Defendant. Defendant argues that if he
had been privy to the PSR, he could have informed counsel of factual inaccuracies which
affected relevant conduct and acceptance of responsibility. We also did not consider in
Gordon I, whether counsel was ineffective for failing to challenge factual inaccuracies in
the PSR. Because these claims differ from those raised in Gordon I, Defendant is not
foreclosed from pursuing 2255 review. See United States v. Prichard, 875 F.2d 789,
791 (10th Cir. 1989) (absent intervening change in law, issues disposed of on direct
appeal may not be considered on 2255 collateral attack). Accordingly, we remand to
the district court for consideration of the merits of these claims.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further
proceedings consistent with this opinion.