                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 19, 2011
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff–Appellee,                      No. 11-8020
          v.                                    (D.C. No. 07-CV-00322-ABJ)
 STEVEN B. JONES,                                          (D. Wyo.)

                 Defendant–Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.



      Defendant, a federal prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2255 habeas petition.

Following a nine-day jury trial, Defendant was convicted of participating in a

drug-trafficking conspiracy. His conviction and sentence were affirmed on direct

appeal. See United States v. Jones, 468 F.3d 704 (10th Cir. 2006). In the instant

§ 2255 habeas motion, Defendant raised several claims of ineffective assistance

of trial and appellate counsel, as well as a claim of actual innocence. The district



      *
        This order is not binding precedent except under the doctrines of law of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.
court denied Defendant’s motion without holding an evidentiary hearing.

      In his petition for a certificate of appealability, Defendant argues the

district court committed several errors in denying his habeas petition. Two of his

arguments warrant some discussion. First, Defendant argues the district court

misapprehended the basis for Defendant’s claim regarding the trial testimony of

one of Defendant’s co-defendants, who entered a plea of guilty several days into

the trial. The district court considered whether trial counsel was ineffective for

failing to seek severance, but Defendant points out that his claim was actually

premised on the alleged violation of the trial court’s sequestration order.

However, although we agree with Defendant that the district court apparently

misapprehended the ground on which his claim was based, we nonetheless

conclude that reasonable jurists would not debate whether the court’s denial of

this claim was correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Tenth

Circuit precedent makes clear that sequestration orders “‘only apply to those who

are known to be witnesses at the time,’” United States v. Boley, 730 F.2d 1326,

1333 (10th Cir. 1984) (quoting United States v. Cort-wright, 528 F.2d 168, 176

(7th Cir. 1975)), and thus Defendant’s counsel was not ineffective for failing to

argue that the court’s sequestration order was violated when Defendant’s co-

conspirator testified against him after pleading guilty several days into the trial.

See id.

      We next address Defendant’s contention that the district court’s discussion

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of the facts relating to his selective prosecution claim was contradicted by the

court’s recitation of the testimony of one co-conspirator. Although we agree with

Defendant that the court’s factual recitations appear inconsistent, we nevertheless

conclude that reasonable jurists would not debate whether the court erred in

denying this claim. Defendant argues that his selective prosecution claim was

properly raised and preserved at the trial court level and that his appellate counsel

rendered ineffective assistance by failing to raise this issue on appeal. However,

if this issue had been raised on appeal, the trial court’s finding that Defendant

was not subjected to selective prosecution would have been upheld unless it was

clearly erroneous. See United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.

1986). Because the record before us does not support the conclusion that this

finding was clearly erroneous, we conclude that reasonable jurists would not

debate whether appellate counsel was ineffective for failing to raise this issue on

appeal. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) (“When

a defendant alleges his appellate counsel rendered ineffective assistance by failing

to raise an issue on appeal, we examine the merits of the omitted issue. If the

omitted issue is without merit, counsel’s failure to raise it does not constitute

constitutionally ineffective assistance of counsel.”) (internal quotation marks and

citations omitted).

      As for Defendant’s other claims of ineffective assistance and his claim of

actual innocence, we are persuaded that reasonable jurists would not debate the

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district court’s resolution of these claims. We likewise conclude that reasonable

jurists would not debate the district court’s conclusion that an evidentiary hearing

was not required because the files and records in this case conclusively illustrate

that Defendant is not entitled to any relief.

      We next consider Defendant’s motion for the court to take judicial notice of

adjudicative facts. We construe this as a motion to supplement the record on

appeal and, so construed, we grant the motion. However, these supplementary

materials do not affect our resolution of this matter. Three of the four documents

attached to Defendant’s motion are purported booking documents placing him in

jail during part of the time the drug-trafficking conspiracy was in effect. We are

not persuaded, however, that counsel was ineffective for failing to investigate this

possible defense, where Defendant has not shown that he informed counsel of his

jail time. “An attorney’s failure to investigate cannot be charged as a claim of

ineffective assistance of counsel when the essential and foundational information

required to trigger such an investigation is withheld from the defendant’s attorney

by the defendant himself.” See United States v. King, 936 F.2d 477, 480 (10th

Cir. 1991) (internal quotation marks omitted). Nor are we persuaded that

Defendant’s supplementary materials—the three booking documents and an

affidavit from an acquaintance averring that he never saw Defendant dealing in

illegal drugs or possessing firearms—would cause reasonable jurists to debate

whether the district court erred in denying Defendant’s actual innocence claim.

                                          -4-
      For the foregoing reasons, we DENY Defendant’s request for a certificate

of appealability and DISMISS the appeal. Defendant’s motion for the court to

take judicial notice of adjudicative facts is construed as a motion to supplement

the record and, so construed, GRANTED. Defendant’s request for the

appointment of counsel to represent him on appeal is DENIED. Defendant’s

motion to amend his COA petition to correct a typographical error is GRANTED.

                                              ENTERED FOR THE COURT


                                              Monroe G. McKay
                                              Circuit Judge




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