El-Amin v. English, 100319 FED10, 19-3146

Docket Nº:19-3146
Opinion Judge:NANCY L. MORITZ, CIRCUIT JUDGE
Party Name:SALEEM EL-AMIN, Petitioner - Appellant, v. N.C. ENGLISH, Respondent - Appellee.
Judge Panel:Before McHUGH, KELLY, and MORITZ, Circuit Judges.
Case Date:October 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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SALEEM EL-AMIN, Petitioner - Appellant,

v.

N.C. ENGLISH, Respondent - Appellee.

No. 19-3146

United States Court of Appeals, Tenth Circuit

October 3, 2019

(D.C. No. 5:18-CV-03264-JWL) (D. Kan.)

Before McHUGH, KELLY, and MORITZ, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY

[*]

NANCY L. MORITZ, CIRCUIT JUDGE

Saleem El-Amin, a habeas petitioner proceeding pro se, 1 seeks to appeal the district court's order denying him relief from judgment under Federal Rule of Civil Procedure 60(b). To do so, El-Amin must first obtain a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1); Eldridge v. Berkebile, 791 F.3d 1239, 1243-44 (10th Cir. 2015) (holding that we treat individuals convicted in District of Columbia Superior Court as state prisoners who must obtain COA to appeal denial of federal habeas relief); Spitznas v Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006) (holding that COA is required to appeal district court's order denying Rule 60(b) motion in habeas proceeding). For the reasons explained below, we deny El-Amin's request for a COA and dismiss this matter.

In 2014, a jury convicted El-Amin of armed robbery. During the trial, the judge opted not to instruct the jury on the lesser-included offense of assault with a dangerous weapon. The trial judge sentenced El-Amin to 120 months in prison. El-Amin appealed, arguing in part that the trial judge should have given the lesser-included-offense instruction. The District of Columbia Court of Appeals (DCCA) rejected that argument and affirmed. See Elamin v. United States, No. 14-CF-1134 (D.C. May 11, 2017) (unpublished).

El-Amin then filed this 28 U.S.C. § 2254 petition in federal district court, raising two ineffective assistance of counsel (IAC) claims. He alleged that his appellate counsel failed to (1) challenge the district court's decision not to instruct the jury on a lesser-included offense and (2) argue that the District of Columbia improperly charged him with the single crime of armed robbery under two different statutes, D.C. Code § 22-2801 and § 22-4502.

The district court rejected El-Amin's first IAC claim because it was indisputable that his appellate attorney did raise a lesser-included-offense argument; indeed, the DCCA addressed and rejected that argument. Next, the district court concluded that El-Amin's second IAC claim was unexhausted and procedurally barred because El-Amin failed to present it to the District of Columbia courts. See § 2254(b)(1)(A) (requiring petitioner...

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