F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 11 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Respondent - Appellee,

    v.                                                   No. 01-3206
                                                 (D.C. Nos. 01-CV-3106-RDR,
    TONY GLEN ADKINS,                                98-CR-40041-RDR)
                                                         (D. Kansas)
                Petitioner - Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant Tony Glen Adkins, proceeding pro se, requests a certificate of

appealability (COA) to challenge the district court’s order denying his petition to


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
vacate, set aside or correct sentence, filed pursuant to 28 U.S.C. § 2255.

Mr. Adkins was convicted by a jury of possession of a firearm by a felon, and

sentenced to 180 months’ imprisonment. His sentence was imposed under the

Armed Career Criminal Act, 18 U.S.C. § 924(e). The facts underlying his

conviction are set forth in this court’s resolution of his direct appeal,   United

States v. Adkins , 

, 1114 (10th Cir. 1999), which affirmed his

conviction and sentence,     

       A COA will be granted only if an appellant has made “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);      Slack v.

McDaniel , 

, 483-84 (2000). Where, as here, the district court has

denied a petition on the merits, a COA will issue only if reasonable jurists could

debate that the district court erred in its assessment of the constitutional claims.

See Slack , 529 U.S. at 484.

       As a preliminary matter, we must determine if we have jurisdiction over

this appeal. Mr. Adkins’ notice of appeal was received by the court on June 26,

2001, one day after the filing deadline of June 25.       See Fed. R. App. P. 4(a)(1)(B)

(notice of appeal due sixty days after final order entered). The notice was mailed

from the prison where Mr. Adkins is incarcerated. We assume that it was

presented to prison officials for mailing at least one day before it was received by

the court, or no later than June 25. Because the notice of appeal was presented


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for mailing from the prison on or before the due date of June 25, it was timely

under the prison-mailbox rule.    Houston v. Lack , 

, 276 (1988)

(holding that pro se prisoner’s notice of appeal deemed “filed” when delivered to

prison officials).   Accordingly, this court has jurisdiction over the appeal.

       Mr. Adkins seeks a COA on the following three issues: (1) the trial court

was without subject-matter jurisdiction over the felon-in-possession charge

because there was no requirement that the prohibited acts have an effect on

interstate commerce and, therefore, the statute he was convicted of violating was

beyond the reach of the Commerce Clause, (2) his enhanced sentence under the

Armed Career Criminal Act was in error because the indictment did not charge his

previous felony, and (3) he received ineffective assistance of counsel due to his

attorney’s failure to raise the first two issues at trial and on direct appeal.

       Mr. Adkins did not present his Commerce Clause argument or the

corresponding claim of ineffective assistance of counsel to the district court in his

§ 2255 motion. Consequently, we do not address these claims for the first time on

appeal. United States v. Mora , 

, 1216 (10th Cir. 2002) (“[W]e find

no reason to deviate from the general rule that we do not address arguments

presented for the first time on appeal.”). We note, however, that this argument

has been rejected.    See United States v. Dorris , 

, 584-86 (10th Cir.

2000), cert. denied , 

(2001).


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       We turn to Mr. Adkins’ sentencing argument in which he asserts that his

sentence under the Armed Career Criminal Act was in error.        1
                                                                        This claim is

procedurally barred because he did not raise this claim in his direct appeal.

Rogers v. United States , 

, 1391 (10th Cir. 1996). Therefore, we may

not consider the merits of the claim unless Mr. Adkins establishes cause for his

failure to raise the issue earlier and actual prejudice as a result, or a fundamental

miscarriage of justice if we do not consider it.     United States v. Cook , 

, 1320 (10th Cir. 1993). This court may sua sponte raise procedural bar.             

of counsel can excuse procedural default but “only if the

error amounts to constitutionally ineffective assistance of counsel.”          Rogers , 91

F.3d at 1391. Therefore, we consider Mr. Adkins’ claim of ineffective assistance

of counsel based on his attorney’s failure to raise the sentencing argument at trial

and on direct appeal.

       To establish that counsel provided ineffective assistance, a defendant must

establish both that his attorney’s representation was deficient and that the

attorney’s substandard performance prejudiced him.         See Strickland v.



1
       Mr. Adkins attempts to add a claim to his sentencing argument that was not
presented to the district court in his § 2255 petition and was not raised in his
direct appeal. He asserts that one of his previous convictions used to enhance his
sentence should not have been used because his civil rights had been restored as
to that conviction. We do not address the merits of this claim because we do not
address issues raised for the first time on appeal.  See Mora , 293 F.3d at 1216.

                                             -4-
Washington , 

, 687 (1984). “When a defendant alleges his appellate

counsel rendered ineffective assistance by failing to raise an issue on appeal, we

examine the merits of the omitted issue.”     United States v. Cook , 

,

392 (10th Cir. 1995).

      We hold that Mr. Adkins did not receive constitutionally ineffective

assistance of counsel for counsel’s failure to raise the issue of the enhanced

sentence under the Armed Career Criminal Act on the ground that the indictment

did not charge his previous felony. This argument would not have prevailed

under the reasoning of Dorris . There, this court applied   Almendarez-Torres v.

United States , 

(1998), and held that a defendant’s prior convictions

need not be charged or treated as elements of his offense in order to form the

basis for an enhanced sentence under the Armed Career Criminal Act.         Dorris ,

236 F.3d at 586-88.

      We conclude that it is not reasonably debatable that the district court erred

in its assessment of Mr. Adkins’ claims.     See Slack , 529 U.S. at 484.




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Accordingly, Mr. Adkins’ request for a COA is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.



                                                Entered for the Court



                                                Stephen H. Anderson
                                                Circuit Judge




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