                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 27 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 01-6042
v.                                              (W. District of Oklahoma)
                                                (D.C. No. CIV-00-2062-C)
ROSHELDON NEGIL JENKINS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining Appellant’s brief and the 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.

      The case is before this court on Rosheldon Negil Jenkins’ request for a

certificate of appealability (“COA”). Jenkins seeks a COA so he can appeal the


      *
       This order and judgment is not binding precedent, except under the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.
district court’s denial of his motion to vacate, set aside, or correct sentence

brought pursuant to 28 U.S.C. § 2255.       See 28 U.S.C. § 2253(c)(1)(B) (providing

that the appeal of a final order disposing of a § 2255 petition may not be taken to

a court of appeals unless a COA is issued). Because Jenkins has not made “a

substantial showing of the denial of a constitutional right,” this court     denies

Jenkins’ request for a COA and       dismisses the appeal.     See id. § 2253(c)(2).

       Jenkins pleaded guilty to one count of distribution of crack cocaine in

violation of 21 U.S.C. § 841(a)(1). A motion was brought by the government

pursuant to U.S.S.G. § 5K1.1 and the district court departed downward from the

applicable sentencing guidelines range. The court sentenced Jenkins to 120

months’ incarceration and four years’ supervised release. This court dismissed

Jenkins’ direct appeal for lack of jurisdiction.     See United States v. Jenkins   , No.

99-6340, 2000 WL 1064768 (10th Cir. 2000) (unpublished disposition).

       Jenkins next filed the instant § 2255 habeas petition. In his petition,

Jenkins raised three claims: (1) his guilty plea was not made voluntarily; (2) his

counsel was ineffective for failing to subject the government’s case to a

meaningful adverse testing process; and (3) the government failed to produce any

evidence that the substance in question was crack cocaine. Jenkins had not raised

any of these claims in his direct appeal.




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       The district court determined that the issues Jenkins could have raised on

direct appeal were procedurally barred unless Jenkins could show cause and

prejudice for the default.   1
                                 See Coleman v. Thompson , 501 U.S. 722, 750 (1991).

Recognizing that Jenkins’ ineffective assistance claim could constitute cause for

the procedural default, the district court considered the merits of that claim.            See

United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A defendant may

establish cause for procedural default by showing he received ineffective

assistance of counsel.”). The district court determined that Jenkins could not

show either constitutionally-deficient performance on the part of his counsel or

that he was prejudiced by counsel’s performance.          See Strickland v. Washington          ,

466 U.S. 668, 687 (1984). The district court, thus, entered judgment denying

Jenkins’ § 2255 petition. Jenkins then sought and was denied a COA.               2
                                                                                      In this

appeal, Jenkins raises the same three issues he raised before the district court.




       The district court specifically noted that the relief sought by Jenkins is
       1

resentencing, not the vacation of his guilty plea. Thus, nothing in the record
supports the argument that a fundamental miscarriage of justice would result if
Jenkins’ claims were not considered. “The fundamental miscarriage of justice
exception is available only where the prisoner supplements his constitutional
claim with a colorable showing of factual innocence.” Herrera v. Collins, 506
U.S. 390, 404 (1993) (quotation omitted).

      The district court also denied Jenkins’ motion to proceed in forma
       2

pauperis on appeal. Jenkins renewed that motion before this court. Jenkins’
renewed motion to proceed in forma pauperis on appeal is denied.

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       Jenkins is not entitled to a COA unless he can make “a substantial showing

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

make that showing by demonstrating that: (1) the issues raised are debatable

among jurists, (2) a court could resolve the issues differently, or (3) that the

questions presented deserve further proceedings.       See Slack v. McDaniel , 529

U.S. 473, 483-84 (2000).

       This court has reviewed Jenkins’ request for a COA, Jenkins’ appellate

brief, the district court’s order, and the entire record before us. In his application

for COA and opening brief, Jenkins has not identified any error in the district

court’s analysis and we can find none. Thus, our review demonstrates that the

district court’s disposition of Jenkins’ § 2255 petition is not deserving of further

proceedings, debatable among jurists of reason, or subject to different resolution

on appeal. Accordingly, Jenkins has failed to make the required substantial

showing of the denial of a constitutional right and is not entitled to a COA.      See

28 U.S.C. § 2253(c)(1)(B). This court      denies Jenkins’ request for a COA for

substantially those reasons set forth in the district court’s order dated January 19,

2001, and dismisses this appeal.

                                          SUBMITTED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge


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