                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 23, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 10-5080
       v.                                             (N.D. Oklahoma)
 CHRISTOPHER LAMAR                         (D.C. Nos. 4:09-CV-00774-JHP-FHM
 GOODLETT,                                      and 4:07-CR-00010-JHP-1)

              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Christopher Lamar Goodlett was indicted in the United States District

Court for the Northern District of Oklahoma on one count of being a felon in

possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1), and one count

of possession of an unregistered firearm, see 26 U.S.C. § 5861(d). After the

district court denied his motion to suppress, Mr. Goodlett pleaded guilty but

reserved the right to appeal the denial. On appeal we affirmed the decision of the

district court. United States v. Goodlett, 287 F. App’x 699, 704 (10th Cir. 2008)

(unpublished). Mr. Goodlett then filed a motion for relief under 28 U.S.C.

§ 2255. The district court denied his motion and his application for a certificate

of appealability (COA). See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal
dismissal of § 2255 motion). He now seeks a COA from this court. We deny the

application and dismiss the appeal.

I.    BACKGROUND

      Tulsa police officer Keith Osterdyk was investigating an alleged violation

of a protective order in the early morning of November 28, 2006, when he

encountered Mr. Goodlett walking down a street about a mile from the victim’s

home. Osterdyk thought that Mr. Goodlett resembled the description of the

suspect, so he pulled up next to him, shined his flashlight at him, rolled down his

window, and asked Mr. Goodlett for his name. Mr. Goodlett responded “Chris.”

Osterdyk then asked if he had any identification. When Mr. Goodlett stated that

he had none, Osterdyk got out of his patrol car and walked toward him. At that

point Osterdyk noticed a pistol-grip handle and what appeared to be a shotgun

protruding from Mr. Goodlett’s coveralls. The officer drew his gun, handcuffed

Mr. Goodlett, removed the shotgun from his clothes, and arrested him.

      Mr. Goodlett moved to suppress the firearm, arguing that Osterdyk did not

have reasonable suspicion to stop him. After an evidentiary hearing the

magistrate judge prepared a Report and Recommendation (R&R) recommending

that the motion to suppress be denied. Mr. Goodlett’s attorney filed a 10-page

objection to the R&R. The district court denied the defense objections and

adopted the R&R.




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        Mr. Goodlett pleaded guilty to both counts of his indictment but reserved

the right to appeal the denial of his motion to suppress. We affirmed the denial of

the motion to suppress, holding that even if Mr. Goodlett was seized within the

meaning of the Fourth Amendment, there was reasonable suspicion to justify the

stop. See Goodlett, 287 F. App’x at 703–04.

II.     DISCUSSION

        A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

        On appeal Mr. Goodlett presents two arguments: (1) that the R&R was

based on unreasonable determinations of fact and (2) that his attorney was

constitutionally ineffective for failing to comply with Federal Rule of Criminal

Procedure 59 when objecting to the R&R. We address each of these arguments in

turn.

        A.    Magistrate Judge’s Ruling

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      We need not resolve the merits of Mr. Goodlett’s argument that the R&R

was based on unreasonable determinations of fact, because the argument is

procedurally barred. When an issue should have been raised on direct appeal, the

defendant ordinarily can raise the issue in a § 2255 motion only if the defendant

raised it on direct appeal but the appellate court failed to address it. If the issue

was fully addressed by the appellate court, it is not cognizable under § 2255, see

United States v. Cook, 997 F.2d 1312, 1318 n.6 (10th Cir. 1993), unless the law

of the circuit has changed, see United States v. Prichard, 875 F.2d 789, 791 (10th

Cir. 1989). And “[s]ection 2255 motions are not available to test the legality of

matters which should have been [but were not] raised on direct appeal,” unless the

movant “can show cause excusing his procedural default and actual prejudice

resulting from the errors of which he complains, or can show that a fundamental

miscarriage of justice will occur if his claim is not addressed,” United States v.

Warner, 23 F.3d 287, 291 (10th Cir. 1994); see also Massaro v. United States,

538 U.S. 500, 504 (2003) (noting the “general rule that claims not raised on direct

appeal may not be raised on collateral review unless the petitioner shows cause

and prejudice”). Mr. Goodlett does not contend that any issue raised in his

§ 2255 motion was raised but not addressed on his direct appeal. Nor does he

argue that circuit law has changed since his direct appeal. Rather, he contends

that some of his arguments challenging the R&R’s fact findings were not made on

appeal. But he did not argue in district court that there was cause for his failure

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to do so, nor does he argue cause on this appeal, even though the district court

clearly set out the cause-and-prejudice requirement. Further, the district court

correctly determined that barring Mr. Goodlett from pursuing this argument in his

§ 2255 motion would not result in a miscarriage of justice.

       The district court’s resolution of this claim was neither debatable nor

wrong.

       B.    Ineffective Assistance of Counsel

       Mr. Goodlett’s ineffective-assistance-of-counsel claim is not procedurally

barred, because there is no requirement that such a claim be raised on direct

appeal. See Massaro, 538 U.S. at 509. To establish that his counsel was

ineffective, he must show both “that counsel’s representation fell below an

objective standard of reasonableness” and that he was prejudiced by the deficient

performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). “[A] court

need not determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, . . . that course should be followed.” Id. at

697.

       Mr. Goodlett’s complaint is that his attorney failed to comply with Federal

Rule of Criminal Procedure 59 in challenging the R&R on his pretrial motion to

suppress. Rule 59 allows parties to object to a magistrate judge’s recommended

                                          -5-
disposition with “specific written objections to the proposed findings and

recommendations.” Fed. R. Crim. P. 59(b)(2). Failure to object in accordance

with the rule waives a party’s right to review. See id. In denying the motion to

suppress, the district court observed that Mr. Goodlett’s counsel had not made

specific written objections but had merely restated the arguments originally

presented in the motion to suppress. Mr. Goodlett argues that his attorney’s

mistake prevented him from challenging the R&R.

      We need not determine whether defense counsel erred in not objecting more

specifically. Mr. Goodlett’s argument must fail because he can show no

prejudice. His attorney’s possible violation of Rule 59 did not hamper review of

the R&R by the district court or by this court on direct appeal. Both the district

court and this court addressed his contentions on the merits. The district court

stated:

      In spite of Defendant’s arguments to the contrary, based on the
      totality of the circumstances, the Court agrees with the Magistrate
      Judge that the officers possessed a reasonable suspicion that
      Defendant had been engaged in criminal activity sufficient to justify
      their stopping and questioning Defendant pursuant to the standards
      articulated in Terry v. Ohio, 392 U.S. 1 (1968).

Order at 3, United States v. Goodlett, No. 07-CR-10-JHP (N.D. Okla. March 19,

2007). Similarly, we affirmed the denial of the motion to suppress because

“[g]iven the totality of the circumstances, . . . we must agree that Officer

Osterdyk had a basis for reasonable suspicion to briefly detain Mr. Goodlett and


                                         -6-
request his name and information.” Goodlett, 287 F. App’x at 704. Nowhere

does our order state that we ignored some contention of Mr. Goodlett’s because of

his attorney’s procedural errors.

       Mr. Goodlett is not entitled to a COA on this issue because he has not

shown that the district court’s resolution was debatable or wrong.

III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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