                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALSDecember 5, 2014
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 14-3132
 v.                                         (D.C. Nos. 2:13-CV-02581-JWL and
                                                  2:06-CR-20066-JWL-1)
 JAMES A. McKEIGHAN,                                     (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Defendant-Appellant James McKeighan, a federal inmate appearing pro se,

seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. United States v. McKeighan, Nos.

06–20066–01–JWL, 13–2581–JWL, 2014 WL 2515203 (D. Kan. June 3, 2014).

The district court denied one claim solely on the basis of procedural bar but

reached the merits on the remaining claims. Id. at *1. Because Mr. McKeighan

has not made a “substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability (COA)

and dismiss the appeal. Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

      In 2007, a jury convicted Mr. McKeighan of four counts related to his
possession of marijuana, methamphetamine, and firearms. He was sentenced to a

term of imprisonment of 293 months on the first count—possession with intent to

distribute five or more grams of methamphetamine—and a term of imprisonment

of 120 months on the remaining counts. The sentences run concurrently. On

direct appeal with different counsel, this court affirmed Mr. McKeighan’s

convictions and sentence. United States v. McKeighan, 685 F.3d 956 (10th Cir.),

cert. denied, 133 S. Ct. 632 (2012).

      In his § 2255 motion, Mr. McKeighan asserts claims of ineffective

assistance of counsel and “vindictive prosecution” or misconduct by the

government and court during his arrest and trial. To obtain a COA, Mr.

McKeighan must show “that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For the claim denied solely on

the basis of procedural bar, Mr. McKeighan must show that the district court’s

procedural ruling was debatable and that his motion contained a debatably valid

constitutional claim. Slack, 529 U.S. at 484 (2000).

      To establish ineffective assistance of counsel, Mr. McKeighan must first

demonstrate deficient performance, or “errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). He must then demonstrate

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prejudice, or that these errors deprived him of a “fair trial, a trial whose result is

reliable.” Id. Mr. McKeighan sets forth numerous claims of ineffective

assistance of counsel, including that his counsel: (1) did not file certain motions

upon Mr. McKeighan’s request, (2) did not adequately prepare for Mr.

McKeighan’s suppression hearing, (3) consulted with Mr. McKeighan only during

brief visits to the Correction Corporation of America, (4) did not subpoena or

adequately interview requested witnesses, (5) should have moved to strike two

pro-prosecution jurors for cause rather than using peremptory strikes, (6) assisted

the government in amending the superseding indictment, (7) refused to hire an

expert to analyze fingerprint evidence, (8) rushed through Mr. McKeighan’s trial

by presenting no evidence in his favor, (9) did not seek a mistrial although several

jurors fell asleep, (10) did not show Mr. McKeighan his Presentence Investigation

Report before he was sentenced, (11) refused to call Mr. McKeighan’s friends and

family to testify at his sentencing hearing, and (12) failed to meet various appeal

deadlines. Mr. McKeighan has failed to establish either deficient performance or

prejudice with respect to any of his claims. In particular, he has failed to show

that, but for errors by either his trial or appellate counsel, there is a reasonable

probability that the result of the proceedings would have been different.

Strickland, 466 U.S. at 694. Thus, the district court’s resolution in not reasonably

debatable.

      Mr. McKeighan has also raised several issues with respect to the

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government’s conduct during his arrest, detention, and prosecution and the court’s

conduct during his trial. Because he did not raise these issues on direct appeal, he

is procedurally barred from raising them here unless he can show cause excusing

his procedural default and actual prejudice resulting from the errors of which he

complains, or he can show that a fundamental miscarriage of justice will occur if

his claims are not addressed. United States v. Bolden, 472 F.3d 750, 751–52

(10th Cir. 2006). Mr. McKeighan has made no such showing, and, where the

district court resolved certain issues on the merits, we do not find its resolution

reasonably debatable.

      Accordingly, we DENY a COA, DENY IFP status, and DISMISS the

appeal.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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