FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 9, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5156
(D.C. Nos. 05-CV-00080-TCK-SAJ
TIM FOREMAN, and 02-CR-135-TCK)
(N.D. Okla.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Tim Foreman was convicted by a jury of various crimes in connection with
an armed bank robbery and subsequent witness tampering. He was sentenced to
894 months imprisonment, followed by five years of supervised release, and he
was ordered to pay restitution. This court affirmed Mr. Foreman’s conviction and
sentence on January 21, 2004. United States v. Foreman, 87 Fed. Appx. 107, 108
(10th Cir. 2004).
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
On February 7, 2005, Mr. Foreman challenged his sentence collaterally,
filing a pro se habeas motion under 28 U.S.C. § 2255. The district court
dismissed the motion, finding that Mr. Foreman was entitled to no relief because
he failed to show that his sentence was unconstitutionally imposed. Mr. Foreman
now seeks a certificate of appealability (“COA”) from us in order to appeal the
district court’s order.
Under the terms of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), we may issue a COA only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under
this standard, Mr. Foreman 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)
(quotations omitted). Our inquiry does not require a “full consideration of the
factual or legal bases adduced in support of [the applicant’s] claims,” but, rather,
“an overview of the claims . . . and a general assessment of their merits.” Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003).
Mr. Foreman is a pro se litigant, so we construe his pleading and others
papers with solicitude. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th
Cir. 2007). Before the district court, Mr. Foreman raised four claims of
ineffective assistance of counsel and one claim of alleged prosecutorial
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misconduct. In a thorough fourteen-page opinion, the district court rejected each
of Mr. Foreman’s constitutional claims. As to his ineffective assistance claims,
the district court held that Mr. Foreman failed to show deficient performance by
his attorney or prejudice resulting from his attorney’s performance; as to Mr.
Foreman’s prosecutorial misconduct claim, the court held that he had failed to
show cause and prejudice to overcome procedural default. After reviewing the
record, we conclude no reasonable jurist could doubt the correctness of the
district court’s disposition. Accordingly, and for substantially the same reasons
given by the district court, we deny Mr. Foreman’s application for a COA. The
appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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