F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 2 2001

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
STEVEN BLAIR SPEAL,

Nos. 00-3202 & 00-3362

(D.C. No. 00-CV-3053-MLB)
(D. Kan.)

Defendant-Appellant.
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 00-3277
(D.C. No. 00-CV-3101)
(D. Kan.)

LATONIA EDNA BENSON,

Defendant-Appellant.
ORDER AND JUDGMENT

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.

This order and judgment is not binding precedent, except under the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.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

Appeal No. 00-3202
In appeal No. 00-3202, Steven Blair Speal, a federal inmate appearing pro
se, seeks a certificate of appealability (COA) in order to appeal the district courts
order dismissing his 28 U.S.C. 2255 motion.

See 28 U.S.C. 2253(c)(1)(B).

Because Speal has not made a substantial showing of the denial of a

constitutional right, we deny his request for a COA and dismiss this appeal.

Id.

2253(c)(2).
Speal was convicted of conspiracy to distribute a controlled substance in
violation of 21 U.S.C. 846; possession with intent to distribute
methamphetamine and marijuana in violation of 21 U.S.C. 841(a)(1); possession
of a firearm during a drug trafficking crime in violation of 18 U.S.C. 924(c)(1);
and two counts of possession of a firearm in violation of 18 U.S.C. 922(g)(1).
He was sentenced to life imprisonment without possibility of parole. The facts
surrounding Speals arrest and conviction are set forth in

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United States v. Speal ,

No. 97-3344, 1998 WL 886757 (10th Cir. Dec. 21, 1998) (unpublished), in which
this court affirmed his conviction and sentence on direct appeal.
In his 2255 motion, Speal claims ineffective assistance of counsel based
on counsels failure (1) to move for dismissal of firearms counts VI and VII on
the ground that they were multiplicitous of firearm Count V; (2) to move for
severance after the admission of statements made by his non-testifying codefendant, which he claims were hearsay in violation of
U.S. 116 (1999), and incriminated him in violation of

Lilly v. Virginia , 527

Bruton v. United States ,

391 U.S. 123 (1968); (3) to object to an allegedly factual mistake in the
prosecutors closing argument; (4) to raise on appeal a claim that there was
insufficient evidence to convict him; and (5) to claim that the prosecution failed
to meet its burden of proof because the jury was not required to make a finding
that his conduct affected interstate commerce.
In a thorough order, the district court examined each of Speals claims and
concluded that he was not entitled to relief. This court has considered the
parties briefs, the district courts order, and the entire appellate record. Our
review demonstrates that the issues Speal seeks to raise on appeal are not
debatable among jurists, deserving of further proceedings, or subject to a different
resolution on appeal.

See Slack v. McDaniel , 529 U.S. 473, 484 (2000). Only one

issue is even deserving of further comment: No doubt because Speals interstate

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commerce argument was vague and untethered to any facts, the district court did
not squarely address his assertion that an interstate commerce nexus is an
essential element of his 841(a) convictions. Nevertheless, this contention is
without merit. This court has held that 841(a)(1) is within Congresss power to
regulate interstate commerce.

See United States v. Wacker , 72 F.3d 1453, 1475

(10th Cir. 1995). Accordingly, a conviction under 841(a) does not require
individualized proof that the crime substantially affected interstate commerce.
See United States v. Lane , 883 F.2d 1484, 1492 (10th Cir. 1989) (When
Congress enacts a statute under its commerce power, it is not constitutionally
obligated to require proof beyond a reasonable doubt that each individual act in
the class of activities regulated had an effect on interstate commerce);

cf. United

States v. Janus Ind. , 48 F.3d 1548, 1556 (10th Cir. 1995) (noting that drug
trafficking laws under 21 U.S.C. 801

et seq . require no finding of

individualized interstate commerce because these laws regulate a class of

intrastate activities that

per se affect interstate commerce).

Additionally, Speal has raised for the first time on appeal claims arising
under Apprendi v. New Jersey , 530 U.S. 466 (2000), claiming that the drug
quantity in his 841 charges were not sufficiently specified in the indictment nor
made an essential element of the charges in the jury instructions. This court has
not yet determined whether

Apprendi is retroactively available in an initial habeas

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motion. See Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001).
Similarly, we have not considered whether a failure to raise

Apprendi on direct

appeal bars habeas review under the rules governing procedural defaults.
However, because Speal did not raise any sort of challenge regarding drug
quantity in his habeas motion below, we decline to address it here.

See Smith v.

Secy of N.M. Dept of Corr. , 50 F.3d 801, 814 n. 22 (10th Cir. 1995) (noting that
in the absence of extraordinary circumstances this court will not consider issues
raised for the first time on appeal).
Because Speal has not made a substantial showing of the denial of a
constitutional right, he is not entitled to a COA. Accordingly, this court DENIES
Speals request to proceed

in forma pauperis , DENIES his request for a COA, and

DISMISSES this appeal.

Appeal No. 00-3362
In his companion appeal No. 00-3362, Speal appeals the district courts
denial of his motion to proceed

in forma pauperis in the appeal of his 2255

motion. The district court concluded that Speal had failed to comply with the
requirements of 28 U.S.C. 1915(a)(1) and (2) and it certified in writing that the
appeal was not taken in good faith.

See 28 U.S.C. 1915(a)(3) and

Fed. R. App. 24(a)(3). Contrary to Speals contention, the district court did not
deny his in forma pauperis request under the Prison Litigation and Reform Act of
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1995. Because the district court applied the correct legal standards and we find
no error with its finding that Speals 2255 appeal was not taken in good faith,
we affirm.
Appeal No. 00-3277
In this related appeal, Speals co-defendant, Latonia E. Benson, a federal
inmate appearing pro se, also seeks a COA in order to appeal the district courts
order dismissing her 2255 motion. Benson was convicted of conspiracy to
distribute a controlled substance in violation of 21 U.S.C. 846; and possession
with intent to distribute methamphetamine and marijuana in violation of 21
U.S.C. 841(a)(1). Her conviction and sentence were affirmed in

United States

v. Benson , No. 97-3354, 1998 WL 886763 (10th Cir. Dec. 21, 1998)
(unpublished).
In her 2255 motion, she claims (1) that her trial counsel was ineffective
because he failed (a) to move for suppression of her post-arrest statements on the
grounds that she had requested an attorney; and (b) to object when the district
courts considered her failure to testify at sentencing when it denied her request
for a minor participant sentence reduction under U.S. Sentencing Guidelines
Manual 3B1.2; (2) that her appellate counsel was ineffective for failing to raise
these ineffective assistance claims on direct appeal; and (3) that the prosecution
failed to sustain its burden of proof because the jury instructions did not require
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the jury to find an interstate commerce nexus as an essential element of the

841(a) charges against her.
Again, the district court addressed and rejected each of Bensons arguments
in a thorough order. While it did not squarely address Bensons interstate
commerce claim, we have already explained above why this issue is without
merit. It is also worth noting that, with respect to Bensons claim regarding to
her refusal to testify at sentencing in support of her requested sentence reduction,
the district court correctly anticipated this courts recent holding in

United States

v. Constantine , No. 00-2115, 2001 WL 909010 (10th Cir. Aug. 13, 2001). In that
case, this court held that the sentencing courts denial of a requested downward
departure based on the defendants failure to carry his burden of proof as a
consequence of his silence at sentencing is not a violation of the defendants Fifth
Amendment right to remain silent under

Mitchell v. United States , 526 U.S. 314

(1999). Id. at *5.

As did her co-defendant, Benson also raises

Apprendi claims for the first

time on appeal, asserting that the drug quantities in the 841 charges against her
were not sufficiently specified in the indictment or jury instructions. For the
same reasons set forth in our resolution of Speals appeal No. 00-3202, we
decline to address these claims because Benson did not raise any sort of challenge
regarding drug quantity in her habeas motion.
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See Smith , 50 F.3d at 814 n. 22.

Upon review of the record and the parties briefs, this court finds that the
issues Benson seeks to raise on appeal are not debatable among jurists, deserving
of further proceedings, or subject to a different resolution on appeal.

See Slack ,

529 U.S. at 484. Accordingly, this court DENIES Bensons request to proceed
forma pauperis , DENIES her request for a COA, and DISMISSES this appeal.

Entered for the Court

Wade Brorby
Senior Circuit Judge

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in