F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 7 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
No. 04-5086
v. (D.C. Nos. CV-03-658-C
and CR-99-33-C)
STEPHEN STERLING THOMAS, sued (N.D. Okla.)
as Stephen Thomas,
Defendant-Appellant.
ORDER
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
This is a pro se 28 U.S.C. § 2255 prisoner appeal. Appellant was convicted
by jury of conspiracy to possess with intent to distribute cocaine and cocaine base
in violation of 21 U.S.C. § 846. He was sentenced to 240 months of
imprisonment followed by a three-year term of supervised release and a $5,000
fine. Appellant’s conviction and sentence were affirmed by this court on direct
appeal in United States v. Williams, No. 00-5244, 2002 WL 1815916 (10th Cir.
Aug. 8, 2002). The Supreme Court subsequently denied Mr. Thomas’ petition for
a writ of certiorari. Thomas v. United States, 537 U.S. 1038 (2002).
In his § 2255 motion, Appellant raised three ineffective assistance of
counsel claims: 1) failure to object to or challenge the applicability of Guideline
provision 2D1.1(b); 2) failure to argue that a single conspiracy cannot stand
where more than one conspiracy was proved at trial; and 3) failure to argue the
applicability of Guideline provision 2D1.1 n.6. The district court, in a well-
reasoned opinion, denied Appellant’s motion holding that Mr. Thomas failed to
allege any fact showing that his counsel’s conduct was unreasonable as the term is
defined in Strickland v. Washington, 466 U.S. 668, 688 (1984). A claim for
ineffective assistance of counsel requires Appellant to show that 1) his attorney’s
“performance was deficient . . . [in that he] made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and 2) “the deficient performance prejudiced the defense.” Id. at
687.
The district court did not act on the issue of certificate of appealability;
therefore, it is deemed denied. Appellant then applied to this court for a
certificate of appealability. In order for this court to grant a certificate of
appealability, Appellant must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2)(2000). To do so, he 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
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issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Appellant’s main argument is that his sentence should have been reduced
like that of his co-defendant whose sentence was vacated and remanded on direct
appeal in United States v. Williams, No. 00-5244, 2002 WL 1815916 (10th Cir.
Aug. 8, 2002). The district court fully addressed this argument and decided that
Appellant could not meet the second element of the Strickland test–showing
prejudice for his attorney’s failure to raise this issue on direct appeal–because it
was not reasonably probable that his sentence would have been reduced if he were
resentenced pursuant to the rationale from Williams. District Court Order,
June 7, 2004, at 7.
We have carefully reviewed Mr. Thomas’ brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Appellant’s brief raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
district court in its Order of June 7, 2004, we cannot say “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner.” Slack, 529 U.S. at 484.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. Appellant’s motion for leave to proceed without
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prepayment of fees is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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