F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-1224
D.C. Nos. 01-WM-1866 and
v. 99-CR-291-WM
(D. Colorado)
MARVIN JOSE GONZALES,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, HENRY, and BRISCOE, 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.
Marvin Gonzales, a federal prisoner appearing pro se, seeks a certificate of
appealability to appeal the district court's denial of his 28 U.S.C. § 2255 motion. Because
*
This order and judgment is not binding precedent, except under the doctrines of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.
he has failed to make a “substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.
In March 2000, Gonzales was convicted by a jury of four counts of bank robbery
and one count of attempted bank robbery, in violation of 18 U.S.C. § 2113(a). His
convictions were affirmed on appeal. United States v. Gonzales, No. 00-1238, 2000 WL
1804562 (10th Cir. 2000) (unpublished). In September 2001, Gonzales filed his § 2255
motion, asserting (1) he received ineffective assistance of counsel; (2) his conviction was
based on perjured testimony; (3) the district court lacked jurisdiction to sentence him
because the Sentencing Reform Act of 1984 was not properly enacted. The district court
denied the motion on April 12, 2002.
As regards Gonzales' ineffective assistance of counsel claim, we agree with the
district court that Gonzales has failed to meet the two-part standard enunciated in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, he first must show that
his counsel's performance “fell below an objective standard of reasonableness.” Id. at
688. “In applying this test, we give considerable deference to an attorney's strategic
decisions and 'recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.'” Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland,
466 U.S. at 690). Gonzales must also demonstrate that the deficiency in performance
prejudiced him by showing “there is a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Counsel's decision to rely solely on the
identification defense, her advice that Gonzales plead guilty, and her suggestion that he
take a polygraph test were strategic decisions, or decisions that did not affect the outcome
of the trial.
As noted by the district court, Gonzales' perjury claim was disposed of on direct
appeal. See Gonzales, 2000 WL 1804562 at *3. Therefore, he may not raise the issue
here. See United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (“Absent an
intervening change in the law of a circuit, issues disposed of on direct appeal generally
will not be considered on a collateral attack by a motion pursuant to § 2255.”).
The district court correctly concluded that the Sentencing Reform Act of 1984,
part of the Comprehensive Crime Control Act of 1984, has been found to have been
properly enacted. See United States v. Zapata-Alavarez, 911 F.2d 1025, 1027 (5th Cir.
1990); United States v. Barnerd, 887 F.2d 841, 842 (8th Cir. 1989).
As a final matter, we note that Gonzales attempts to raise an issue regarding
outrageous government conduct. This issue was not asserted in the district court and we
decline to address it here. See United States v. Mora, 293 F.3d 1213, 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.”).
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We DENY a certificate of appealability and DISMISS the appeal. Gonzales'
request to proceed in forma pauperis on appeal is DENIED. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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