FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              October 15, 2014
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                      No. 14-6123
v.

SAMUEL RODRIGUEZ,

             Defendant - Appellant.



                Appeal from the United States District Court
                   for the Western District of Oklahoma
            (D.C. Nos. 5:14-CV-00407-R and 5:12-CR-00012-R-1)



Samuel Rodriguez, Pro Se, Defendant-Appellant.

Robert Donald Gifford, II, United States Attorney’s Office, Oklahoma City,
Oklahoma, for Plaintiff-Appellee.



Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.



BACHARACH, Circuit Judge.
      Mr. Samuel Rodriguez pleaded guilty to the distribution of five grams or

more of methamphetamine. The district court accepted the plea and sentenced Mr.

Rodriguez. In determining the sentence, the court applied an enhancement based

on a finding that Mr. Rodriguez was a career offender because he had at least two

earlier felony convictions for a crime of violence or a controlled substance. See

U.S. Sentencing Guidelines Manual § 4B1.1(a). One of these convictions

involved simple assault under Texas Penal Code § 22.01. The parties disagree on

whether the assault conviction involved a crime of violence.

      In an earlier appeal, Mr. Rodriguez’s attorney argued that the district court

should not have considered the Texas conviction a crime of violence. A panel of

this court rejected the argument, affirming the conviction.

      Mr. Rodriguez then sought collateral relief, claiming that his attorney had

mishandled the issue both at sentencing and in the direct appeal. The district court

recharacterized the request as a motion to vacate the sentence under 28 U.S.C.

§ 2255 and denied relief.

      Mr. Rodriguez asks us for a certificate of appealability so that he can appeal

the denial of relief under § 2255. With this request, Mr. Rodriguez also asks for

leave to amend the § 2255 motion and to proceed in forma pauperis. We deny the

request for a certificate of appealability and dismiss the appeal. This dismissal

moots Mr. Rodriguez’s related requests for leave to amend and leave to proceed in

forma pauperis.

                                         2
I.    Simple Assault Under the Texas Statute: Violent or Nonviolent?

      Underlying the claim is Mr. Rodriguez’s belief that his Texas assault

conviction did not involve a crime of violence under the federal sentencing

guidelines.

      In the prior appeal, we held that a crime would be considered violent if it

involved intent, but not recklessness. United States v. Rodriguez, 528 F. App’x

921, 924 (10th Cir. 2013) (unpublished). Mr. Rodriguez does not quarrel with this

conclusion.

      Instead, he argues that the assault did not necessarily constitute a crime of

violence because the crime could have been triggered by recklessness. This much

of the argument is correct, for the Texas statute provides three different mental

states for an assault. One of them is recklessness, and another is intentional

conduct. See Tex. Penal Code § 22.01(a)(1). 1

      The resulting question is which mental state was required in Mr.

Rodriguez’s criminal case. If it was intentional conduct, the offense would have

qualified as a crime of violence; if the required mental state was recklessness, the

offense would not have qualified as a crime of violence. And if the offense

involved a crime of violence, enhancement of the sentence would have been


1
       The third mental state was “knowingly.” See Tex. Penal Code § 22.01(a).
This mental state does not affect any of the issues in Mr. Rodriguez’s request for
a certificate of appealability.

                                          3
appropriate; if the offense did not involve a crime of violence, enhancement would

have been inappropriate.

II.    The Prior Judicial Decisions and the Claims

       The district court concluded at sentencing that the Texas conviction

involved a crime of violence. On direct appeal, we upheld that ruling because

Texas court records showed that Mr. Rodriguez had pleaded guilty to intentional

conduct, as well as recklessness. 

       In the proposed appeal involving his § 2255 motion, Mr. Rodriguez alleges

mistakes by the prior Tenth Circuit panel, the district court, and his attorney

handling the sentencing and direct appeal.

III.   Need for a Certificate of Appealability

       A certificate of appealability is necessary for Mr. Rodriguez to appeal. 28

U.S.C. § 2253(c)(1)(B). We will issue a certificate only when the applicant makes

“a substantial showing of the denial of a constitutional right.” 

2253(c)(2).

This showing requires a demonstration that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack v. McDaniel, 

, 484 (2000)

(quoting Barefoot v. Estelle, 

, 893 n.4 (1983), superseded by statute,

Antiterrorism and Effective Death Penalty Act of 1996, No. 104-132, 110 Stat.


                                          4
1214, as recognized in 

). Under this test, Mr. Rodriguez

must show “that the district court’s resolution of the claim was either ‘debatable or

wrong.’” Laurson v. Leyba, 

, 1231 (10th Cir. 2007) (quoting 

). We conclude that no reasonable jurist could regard the merits of

the § 2255 motion as debatable or wrong.

IV.   Alleged Mistakes in Our Decision in the Direct Appeal

      Mr. Rodriguez argues in part that we should reverse the denial of § 2255

relief because we mistakenly decided the direct appeal. This argument has two

shortcomings: The claim was not part of the § 2255 motion, 2 and our decision in

the direct appeal is law of the case. 3 For both reasons, any reasonable jurist would

recognize that we could not reverse the district court’s denial of relief under

§ 2255 even if we disagreed with the panel’s decision in the direct appeal.

V.    Alleged Mistake by the District Court in Denying § 2255 Relief

      In denying § 2255 relief, the federal district court said that Mr. Rodriguez

could not relitigate classification of simple assault as a crime of violence because


2
      See Payton v. United States, 

, 577 (10th Cir. 1970) (declining
to consider an appellate claim that had not been presented in the claimant’s
§ 2255 motion).
3
       See Abernathy v. Wandes, 

, 549 (10th Cir. 2013) (“[U]nder
law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments
presented in a § 2255 motion that were raised and adjudicated on direct appeal.”);
see also United States v. Irving, 

, 1192-93 (10th Cir. 2011)
(declining to reconsider an argument raised in a § 2255 motion that was decided
on direct appeal).

                                           5
we had already decided the issue in the direct appeal. R. at 124. For this

statement, the district court cited United States v. Fennell, 207 F. App’x 916, 919

(10th Cir. 2006). 

argues that reliance on Fennell was

misguided because he had not previously alleged ineffective assistance of counsel.

      We believe Mr. Rodriguez misunderstood the district court’s citation of

Fennell. The district court did not question whether Mr. Rodriguez can allege

ineffective assistance of counsel under § 2255. The court was simply expressing

its belief that Mr. Rodriguez was trying to relitigate an issue already decided. He

was. As noted above, Mr. Rodriguez is seeking a certificate of appealability in

part so that he can argue that the panel had incorrectly decided his direct appeal.

In these circumstances, no reasonable jurist could credit Mr. Rodriguez’s

argument for reversal based on the district court’s citation of Fennell.

VI.   Alleged Mistakes by Mr. Rodriguez’s Prior Attorney: Ineffective
      Assistance of Counsel

      Mr. Rodriguez also seeks to appeal on the ground that his prior attorney

provided ineffective assistance by failing to argue that his prior conviction

involved an “indivisible” offense, by failing to obtain relevant documents from his

prior state case, and by failing to seek certiorari in the United States Supreme

Court. No reasonable jurist could credit any of these claims.




                                          6
      A.     Standard for Ineffective Assistance of Counsel

      To prevail on his ineffective-assistance claims, Mr. Rodriguez would

ultimately need to show that

      !      his counsel’s representation “fell below an objective standard of
             reasonableness” and

      !      “there is a reasonable probability that, but for counsel’s
             unprofessional errors, the result of the proceeding would have been
             different.”

Strickland v. Washington, 

, 687-88, 694 (1984).

      B.     The Attorney’s Characterization of Mr. Rodriguez’s Prior Crime
             as a “Divisible” Offense

      Mr. Rodriguez argues in part that his prior attorney had taken the wrong

approach in challenging the courts’ classification of his prior offense (simple

assault) as a “crime of violence.” She argued that the crime was “divisible,” and

Mr. Rodriguez alleges that the attorney should have argued that the crime was

“indivisible.” Mr. Rodriguez’s allegation is misguided, and no reasonable jurist

could regard the attorney’s approach as deficient or prejudicial.

      1.     The Texas Assault Statute: Divisible or Indivisible?

      There are two ways to determine whether an offense involves a crime of

violence: a “categorical approach” and a “modified categorical approach.” See

United States v. Wise, 

, 1144 (10th Cir. 2010). The categorical

approach involves examination of the statutory definition of the offense, rather

                                         7
than the particular facts of the case. United States v. Charles, 

,

1067 (10th Cir. 2009). The “modified categorical approach” is used when the

statute is ambiguous or broad enough to cover crimes that are both violent and

nonviolent. 

circumstances, the court can use records from the prior

case to determine which part of the statute was charged. 

the approach turns on whether the prior offense is considered

“divisible” or “indivisible.” See Descamps v. United States, ___ U.S. ___, 133 S.

Ct. 2276, 2281 (2013) (explaining that the modified categorical approach applies

to divisible statutes). A crime is considered “divisible” when it sets out the

elements in the alternative. 

A crime is “indivisible” when it provides

only a single set of elements. 

Rodriguez was sentenced, we had already held that the

sentencing court could consult judicial records to determine whether a prior

conviction under the same Texas statute (Texas Penal Code § 22.01) had involved

intentional conduct or recklessness. United States v. Zuniga-Soto, 

,

1121-22 (10th Cir. 2008); 4 see also United States v. Ramirez, 

, 397-




4
      In Zuniga-Soto, we stated that § 22.01(a)(1)’s “mens rea component is
grammatically divisible” and that the court could consider the state judicial
records to identify the part of the statute that had been charged. 

. The state judicial records showed that the charge included reckless
conduct. 

held that the actual charge under § 22.01(a)(1) did not
qualify as a crime of violence under Sentencing Guideline 2L1.2. 

                                          8
98 (7th Cir. 2010) (holding that Texas Penal Code § 22.01(a)(1) is “divisible”

because it covers three possible mental states).

      When the pre-sentence report classified Mr. Rodriguez as a career offender,

his attorney objected. In the objection, the attorney treated the crime as

“divisible,” but argued that the offense should be considered nonviolent because

the plea petition had not identified the elements and the plea reflected only a

blanket acknowledgment of guilt. R. at 154. The district court rejected that

argument, and a Tenth Circuit panel upheld the sentence because the indictment

required intentional conduct in addition to recklessness. United States v.

Rodriguez, 528 F. App’x 921, 923-27 (10th Cir. 2013) (unpublished).

      2.     Deficiency

      Mr. Rodriguez alleges that his attorney should have argued at sentencing

and in the appeal that

      !      the offense was “indivisible” (rather than “divisible”) and, as a result,

      !      the court could not refer to judicial documents from the prior
             proceeding to determine whether the prior offense had involved
             violence.

In Mr. Rodriguez’s view, these arguments would have prevailed under Descamps

v. United States, ___ U.S. ___, 

(2013), and Marrero v. United

States, ___ U.S. ___, 

(2013) (mem.).




                                          9
      Mr. Rodriguez’s allegation would not sway any reasonable jurist because

Descamps and Marrero did not affect our circuit’s method of distinguishing

between divisible and indivisible offenses. In Descamps, the Supreme Court

simply held that judicial documents could not be consulted when the crime

involves an indivisible statute. 

; see United States v.

Trent, 12-6283, slip op. at 17 (10th Cir. Sept. 25, 2014) (pending publication)

(stating that in Descamps, the Supreme Court did not “suggest in any way that it

was retreating from its application of [the modified categorical approach] in

previous cases”). And in Marrero, the Court simply remanded for reconsideration

in light of Descamps. 

. After Descamps and Marrero,

the ultimate question remains: Was the Texas Penal Statute § 22.01 divisible or

indivisible? We held in the direct appeal that the offense was divisible. United

States v. Rodriguez, 528 F. App’x 921, 925 (10th Cir. 2013) (unpublished).

      Mr. Rodriguez argues that his attorney should have taken a different

approach in light of Descamps and Marrero. Even in hindsight, no reasonable

jurist could regard defense counsel’s approach as deficient because the Supreme

Court’s opinions in Descamps and Marrero did not address whether the prior

crime was divisible or indivisible.

      As noted above, the Supreme Court did not face the divisibility of a statute

in Descamps. The issue did arise in the Third Circuit’s decisions in Marrero.

There, the issue was whether a Pennsylvania conviction for simple assault

                                         10
involved a “crime of violence” for purposes of the sentencing enhancement.

United States v. Marrero, 

, 160 (3d Cir. 2012). Like Texas,

Pennsylvania provided three alternative mental states that could result in guilt:

“intentionally,” “knowingly,” or “recklessly.” 

Pa. Cons. Stat. Ann.

§ 2701(a)). The Third Circuit Court of Appeals held that the statute was

“divisible” and that, as a result, the sentencing court could consult judicial records

from the state case to identify the statutory language involved in the charge. 

      Six days before we issued a decision in Mr. Rodriguez’s appeal, the

Supreme Court issued a memorandum decision, vacating the Third Circuit’s

judgment and remanding for further consideration in light of Descamps. 

.

      On remand, the Third Circuit Court of Appeals again held that the crime

was divisible, which allowed consultation of state judicial records to determine

whether the charge involved conduct that was “intentional,” “knowing,” or

“reckless.” United States v. Marrero, 

, 395-97 (3d Cir. 2014). 5




5
      Following Descamps, the First Circuit Court of Appeals also applied the
modified categorical approach (permitting consultation of state judicial
documents to identify the pertinent charge) when a state statute allowed either
“intentional” or “reckless” conduct to suffice for the mens rea. See United States
v. Carter, 

, 17 (1st Cir. 2014) (assault based on intentional, knowing,
or reckless conduct).

                                          11
      With the benefit of Descamps and Marrero, no reasonable jurist could

question the reasonableness of Mr. Rodriguez’s legal representation. The attorney

never conceded the applicability of the sentencing enhancement. In fact, she

challenged its applicability by arguing that the Texas crime did not involve

violence.

      She did acknowledge that the sentencing judge could consult the state

judicial records to identify the parts of the statute involved in the charge. But she

had little choice, for we had already held in Zuniga-Soto that a sentencing judge

could consult state judicial records when deciding whether the charge involved

“intentional” or “reckless” conduct in a prosecution under Texas Penal Code

§ 22.01(a).

      Faced with the precedent in Zuniga-Soto, Mr. Rodriguez’s attorney argued

that the state judicial documents did not clarify the nature of the underlying charge

because the guilty plea constituted a simple blanket acknowledgment of guilt. R.

at 81 (in district court), 154 (on direct appeal). We ultimately rejected this

argument, but it was a reasonable strategy. In fact, two months after our decision

in Mr. Rodriguez’s direct appeal, a virtually identical argument prevailed in

United States v. Espinoza, 

(5th Cir. 2013). There the Fifth Circuit

Court of Appeals declined to apply the enhancement when the defendant pleaded

guilty to an indictment containing multiple mens rea standards, reasoning that the



                                          12
defendant’s “blanket statement” in the plea did not constitute an admission to

“every listed category of mental culpability.” 

. 6


6
     The arguments by Mr. Rodriguez’s attorney closely resembled the
arguments by defense counsel in Espinoza.

       For example, Mr. Rodriguez’s attorney argued to the judge that the plea
papers were boilerplate and did not contain a “case-specific, detailed statement or
confession.” R. at 154. Similarly, the attorney argued in the direct appeal:

      Nowhere does the “Judicial Confession” or “Notice” contain a case-
      specific, detailed statement or confession. Nowhere in the record do we
      find a recorded or transcribed declaration of a factual basis or plea
      colloquy. Thus, there is nothing from which the Court can discern
      specifically what elements were in fact admitted by Mr. Rodriguez or
      found by the state court. In response to Mr. Rodriguez’s objection, at
      the sentencing hearing the government (which bore the burden of proof)
      presented nothing to show what was contained in the state plea colloquy
      or meaningful factual basis. Thus, it is not known if Mr. Rodriguez
      admitted to all four of the separate acts charged in Count II, or fewer.
      More importantly for the purposes of crime of violence designation, it
      is not known which of the three possible mens reas he admitted to
      having.

      In Espinoza, defense counsel made a similar argument:

      The state indictment alleged three mental states in the conjunctive:
      intentionally, knowingly, and recklessly. When the charging papers for
      a prior conviction are in the conjunctive, this Court looks to the “least
      culpable means” of committing the offense to determine whether the
      particular offense subjects a defendant to enhanced federal punishment.
      The least culpable mental state for committing the Texas felony assault
      offense is recklessness. [The defendant] admitted only what was
      necessary to plead guilty. No mental state was specified in his
      admission. The determination whether [the defendant’s] offense is a
      violent felony for [purposes of the Armed Career Criminal Act] must
      therefore be made using the least culpable mental state
      charged—recklessness.

                                         13
      Mr. Rodriguez criticizes his attorney not only for the way that she addressed

the issue at sentencing and in her brief on direct appeal, but also for failing to cite

the Supreme Court’s decisions in Descamps or Marrero. But she could not have

cited the cases in her briefs because they did not exist yet. 7

      She did have an opportunity to address the decisions by submitting a letter

under Federal Rule of Appellate Procedure 28(j), alerting the Tenth Circuit panel

to new authorities. But, that was unnecessary because the government had already

submitted two 28(j) letters, alerting the panel to both Descamps and Marrero.

      Mr. Rodriguez argues that his attorney could have responded to the

government’s 28(j) letters. Why would she have done that?

      In the first letter, the government stated only that

      !      the Descamps Court had allowed consideration of judicial documents
             only if the statute was divisible, and

      !      the government regarded the Texas assault statute as divisible.

Letter from Robert Don Gifford to Elizabeth Shumaker, United States v.

Rodriguez, No. 12-6285 (10th Cir. June 26, 2013). Mr. Rodriguez’s attorney had

little reason to question either statement: Her theory was consistent with what the



Def.’s Reply Br. at 5-6, United States v. Espinoza, 

(5th Cir. May
14, 2012) (citations omitted).
7
      The deadline for a reply brief in the direct appeal was June 3, 2013, which
was 17 days before the Supreme Court’s decision in Descamps and 24 days before
the Court’s memorandum decision in Marrero.

                                           14
government had said, for she was arguing that the Texas statute involved a

nonviolent crime because the plea statement had not identified the relevant

statutory language.

      Mr. Rodriguez also faults his attorney for failing to alert the Tenth Circuit

panel to the Supreme Court’s memorandum decision in Marrero. We again

wonder why the attorney would have done that. Six days after Marrero was

issued, the government filed a second 28(j) letter, advising the Tenth Circuit panel

of the Supreme Court’s memorandum decision. Letter from Robert Don Gifford to

Elizabeth Shumaker, United States v. Rodriguez, No. 12-6285 (10th Cir. July 3,

2013). The letter said little about the decision, for there was not much to say. 

Court’s “discussion” of the sentencing issue consisted of one

sentence, stating without explanation that the Court was vacating the judgment and

remanding for reconsideration of the week-old decision in Descamps. Marrero v.

United States, ___ U.S. ___, 

(2013) (mem.).

      Even if Mr. Rodriguez’s attorney could have crafted an argument to respond

to the government’s letter, she would not have had time to do so because the panel

decided the appeal within three hours of the government’s Rule 28(j) letter.

      In these circumstances, no reasonable jurist could regard the legal

representation as deficient for failure to argue that the Texas assault statute was

indivisible or to tell the sentencing judge or the appeal panel about Descamps or

Marrero.

                                          15
      3.     Prejudice

      But, for the sake of argument, we may assume that the attorney should have

done all of that. Even then, Mr. Rodriguez would have had to prove a probability

of a different result if his attorney had taken a different position based on

Descamps or Marrero. Mr. Rodriguez could not convince any reasonable jurist

that he probably would have had a better outcome.

      To determine whether the attorney’s strategy was prejudicial, we project

what would have happened if the attorney had argued to the sentencing judge that

he could not review the state judicial records to identify the relevant statutory

language. The sentencing judge would have been obliged to reject that position in

light of Zuniga-Soto.

      What would have happened on appeal if the attorney had raised Descamps

and Marrero? The same thing that did happen, for the Tenth Circuit panel was

alerted to both opinions and still upheld the sentence.

      4.     Summary

      In these circumstances, we conclude that no reasonable jurist could credit

the ineffective-assistance claim based on the attorney’s strategy. In the district

court and on appeal, Mr. Rodriguez’s attorney opposed classification of the Texas

assault conviction in a manner consistent with our precedents. The attorney’s

approach was neither deficient nor prejudicial.


                                          16
       C.    The Attorney’s Alleged Failure to Obtain Judicial Documents
             Regarding the Texas Conviction

       In the direct appeal, Mr. Rodriguez’s attorney referred to judicial documents

underlying the Texas conviction for simple assault. Doing so, the attorney noted

that the state judicial documents had been omitted in the district court record. Mr.

Rodriguez infers from this remark that the attorney had neglected to get the

documents. The federal district court rejected this argument, pointing out that the

court had sentenced Mr. Rodriguez with the benefit of the state judicial records.

       No reasonable jurist would credit the claim that the attorney failed to obtain

the Texas documents. Mr. Rodriguez simply misunderstands his attorney’s

remark. The attorney referred to the Texas documents in the pre-sentence report,

stating that she had obtained the state indictment and judgment and referring to the

state court’s notice. Defense counsel used these documents to argue her position

to the sentencing judge and in the direct appeal. Thus, no reasonable jurist could

credit the ineffective-assistance claim based on the attorney’s supposed failure to

obtain the Texas documents.

      D.    The Attorney’s Alleged Failure to Seek Certiorari in the Supreme
            Court

      Mr. Rodriguez also contends that his attorney should have sought Supreme

Court review in the direct appeal. No reasonable jurist would find this contention

debatable for two reasons: (1) This contention did not appear in the § 2255


                                         17
motion; 8 and (2) there is no constitutional right to effective assistance of counsel

relating to requests for certiorari review in the United States Supreme Court. 9

VII. Disposition of the Application for a Certificate of Appealability

      Because no reasonable jurist would find the § 2255 motion reasonably

debatable, we deny a certificate of appealability. Based on the absence of a

certificate, we dismiss the appeal.

VIII. Motion for Leave to Amend the § 2255 Motion

      Mr. Rodriguez not only wants to appeal, but also to amend the § 2255

motion. With dismissal of the appeal, we deny the motion for leave to amend on

the ground of mootness. 10


8
      See Payton v. United States, 

, 577 (10th Cir. 1970) (declining
to consider an appellate claim that had not been presented in the claimant’s
§ 2255 motion).
9
       See Austin v. United States, 

, 8 (1994) (per curiam) (holding that
there is no constitutional right to counsel in forums offering discretionary
review); Wainwright v. Torna, 

, 587 (1982) (per curiam) (holding
that because a habeas petitioner had no right to counsel in appealing to the state
supreme court, an attorney’s failure to timely appeal could not have resulted in
denial of effective assistance of counsel).
10
       The Court cannot tell which claims Mr. Rodriguez wants to add to his
§ 2255 motion. It appears that he may be seeking to add the claims regarding his
attorney’s failure to: (1) address Descamps and Marrero in a 28(j) letter, and (2)
file a petition for certiorari in the United States Supreme Court. Because we are
not sure what Mr. Rodriguez wants to add and is pro se, we liberally construe his
application for a certificate of appealability to address these issues in connection
with his appeal (as well as possible amendments to the § 2255 motion). See
Sigala v. Bravo, 

, 1126 (10th Cir. 2011) (liberally construing an
application for a certificate of appealability in light of the claimant’s pro se

                                          18
IX.   Request for Leave to Proceed In Forma Pauperis

      Mr. Rodriguez requests leave to proceed in forma pauperis. Because we are

dismissing the appeal, we deny the request for leave to proceed in forma pauperis

on the ground of mootness. See Johnson v. Keith, 

, 1136 (10th Cir.

2013) (denying leave to proceed in forma pauperis on the ground of mootness upon

denial of a certificate of appealability).




status).

                                             19