Nos. 2:17-CV-01153-DAK and 2:15-CR-00151-DAK-1) (D. Ct. Utah)
PHILLIPS, BALDOCK, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
TERRENCE L. O'BRIEN UNITED STATES CIRCUIT JUDGE
March 18, 2015, Fred Clifton was indicted in the District of
Utah with aggravated sexual abuse of a child in violation of
18 U.S.C. § 2241(c). On April 29, 2015, he was arrested
pursuant to a warrant at his home in Mississippi. He made his
initial appearance before a magistrate judge in the Southern
District of Mississippi. On May 6, 2015, the judge held an
identity and detention hearing per Clifton's request. He
found Clifton to be the defendant named in the indictment and
granted his bond request. Clifton was released on bond with
electronic monitoring on May 11, 2015, and appeared in the
District of Utah for arraignment on June 3, 2015. On April 5,
2016, the government filed a superseding information charging
Clifton with traveling with intent to engage in illicit
sexual conduct in violation of 18 U.S.C. § 2423(b). The
next day, he pled guilty to the information. He was
eventually sentenced to 54 months imprisonment. He did not
file a direct appeal.
se 28 U.S.C. § 2255 motion raised two claims: (1) the
warrant for his arrest was not signed by a judge nor was it
based on probable cause in violation of the Fourth Amendment
and (2) his trial counsel was ineffective for failing to
challenge the defective arrest warrant. The judge denied the
motion. He concluded the first claim was barred by
Clifton's plea agreement, which waived his right to bring
a § 2255 motion "except on the issue of ineffective
assistance of counsel." (R. Vol. 1 at 21 (quotation
marks omitted).) As to the second (which was not waived by
the plea agreement), he decided counsel was not ineffective
for failing to raise a frivolous argument. Because the arrest
warrant was issued on an indictment pursuant to Fed. R. Crim.
P. 9, it "'must conform to [Fed. R. Crim. P.
4(b)(1)] except that it must be signed by the clerk and must
describe the offense charged in the indictment or
information." (Id. at 22 (quoting Fed. R. Crim.
P. 9(b)(1).) The warrant did so-it "was issued on the
same date as the indictment, it includes a short description
of the offense, and is signed by the deputy court
clerk." (Id.) The judge also denied a
certificate of appealability (COA), prompting Clifton to
renew his request here.
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). To
make such a showing, an applicant must demonstrate "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, 529 U.S. 473, 484 (2000) (quotation marks
omitted). Clifton has not met his burden.
not address the merits of the judge's decision. Instead,
he complains the judge erred in denying him the right to file
a traverse brief and to present evidence supporting his
claims. But he does not suggest, and we fail to see, how a
traverse brief would have helped him; he also does not
indicate what evidence he could have presented that would
have produced a different result. To the extent his traverse
brief would have raised the same arguments he now raises in
his COA application, those arguments were never raised in his
§ 2255 motion. He is not entitled to a COA on those
issues. "[A] district court cannot be debatably wrong on
issues that are not fairly presented to or decided by
it." United States v. Fishman, 608 Fed.Appx.
711, 712 (10th Cir. 2015) (unpublished); see also Sanders
v. Miller, 555 Fed.Appx. 750, 751 (10th Cir. 2014)
(unpublished) (declining to issue a COA on an argument
"never raised . . . before the district
court"); United States v. Cook, 997 F.2d 1312,
1316 (10th Cir. 1993) ("In the present appeal, Defendant
raises thirty-one grounds for relief. To the extent that he
failed to raise these grounds in his § 2255 motion to
the district court, he has waived them.").
no jurist of reason could reasonably debate the correctness
of the result reached by the district court and Clifton does
not argue otherwise, we DENY a COA and
DISMISS this matter.
judge granted Clifton's request to proceed on appeal
without prepayment of fees (in forma pauperis or
ifp). Nevertheless, the relevant statute does not
permit litigants to avoid payment of fees; only prepayment of
fees is excused. See 28 U.S.C. § 1915(a)
(allowing courts to authorize the commencement of a civil or
criminal suit or appeal "without prepayment of
fees or security therefor") (emphasis added). All filing
and docketing fees ($505.00) are due and payable to the Clerk
of the District Court.
 We have liberally construed
Clifton's pro se pleadings, stopping short, however, of
serving as his advocate. See United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
 The district court entered judgment on
December 7, 2017. Clifton's notice of appeal was due by
February 5, 2018. See Fed. R. App. P. 4(a)(1)(B)(i)
(notice of appeal in a civil case must be filed within 60
days after entry of judgment if one of the parties is the
United States); see also United States v. Pinto, 1
F.3d 1069, 1070 (10th Cir. 1993) (noting Fed. R. App. P.
4(a)'s civil time limits apply to § 2255
proceedings). He did not file it until February 9, 2018.
Nevertheless, the notice is timely under the prison mailbox
rule because Clifton provided (1) evidence that the notice
was deposited in the prison's internal mail system on
February 5, 2018, and that the postage was prepaid and (2) a
declaration under penalty of perjury to that effect.
See Fed. R. App. P. 4(c).
 In his COA application, he argues for
the first time that counsel was ineffective for failing to
investigate his claims and, had she investigated, she would
have discovered the following: (1) the arrest warrant was
allegedly signed by the clerk on March 18, 2015, but was not
docketed until June 2, 2015, thereby indicating there was no
valid warrant at the time of his April 28 arrest; (2) the
warrant indicates he was arrested on April 29, 2015, but he
was arrested on April 28, 2015; (3) the warrant fails to
provide the location of his arrest; (4) he was not shown a
copy of the warrant at the time of his arrest even though he
requested to see it; (5) the booking officer could not find a