                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               FEB 16 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 98-5145
                                                     (D. Ct. No. 97-CV-393-BU
 GERALD MARSHAL PAYNE,                                   & 94-CR-150-BU)
                                                             (N.D. Okla.)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

      This appeal is from an order of the district court denying the motion to

vacate, set aside, or correct defendant’s sentence pursuant to 28 U.S.C. § 2255.

In particular, defendant appeals the finding of the district court that he was not


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
denied effective assistance of counsel and that the remainder of his claims were

procedurally barred.

      Defendant was found guilty on nine counts of an indictment and sentenced

to 420 months imprisonment. Defendant appealed the conviction and sentence

relating to Counts III and VII of the original indictment charging him with armed

car-jacking in violation of 18 U.S.C. §§ 2, 2119. This court affirmed the

conviction and sentence in an order dated May 8, 1996.

      In this § 2255 petition, defendant challenges his conviction and sentence as

to all of the counts of the indictment. He argues that the conviction and sentence

should be vacated on three grounds. First, defendant alleges that his counsel

rendered ineffective assistance of counsel during trial and on appeal. Second,

defendant argues that there was a double jeopardy violation because he was

convicted and sentenced in state court for the same conduct for which he was

convicted and sentenced in federal court. Finally, defendant alleges that his

conviction and sentence were based upon improper jury instructions. The double

jeopardy claim and the improper jury instruction claim were not raised in

defendant’s direct appeal. They therefore cannot be raised in this collateral

proceeding in the absence of a showing of cause excusing the procedural default

and a showing of actual prejudice resulting from the errors, or a showing that a

fundamental miscarriage of justice will occur if the claims are not addressed. See


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United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). The only claim

defendant asserts in his § 2255 petition that may show cause sufficient to excuse

his procedural default is that his appellate counsel rendered constitutionally

ineffective assistance because he failed to raise issues on direct appeal. 1

      To establish a claim for ineffective assistance of counsel, defendant must

show both that his counsel’s performance was deficient and that this deficient

performance prejudiced the outcome of the proceedings. See Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). In order to determine whether

defendant’s appellate counsel rendered ineffective assistance by failing to raise

issues on direct appeal we, like the district court, must examine the merits of the

omitted issues. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). “If

the omitted issue[s are] without merit, counsel’s failure to raise [them] ‘does not

constitute constitutionally ineffective assistance of counsel.’” Id. at 393 (quoting

United States v. Dixon, 1 F.3d 1080, 1084 (10th Cir. 1993)). The omitted issues

which form the basis of defendant’s ineffective assistance of appellate counsel

claim are his double jeopardy and improper jury instruction claims.

      Defendant argues that appellate counsel should have raised a double



      1
        Because defendant has not supplemented his § 2255 petition “with a colorable
showing of factual innocence,” Hickman v. Spears, 160 F.3d 1269, 1275 (10th Cir. 1998)
(internal quotation marks and citation omitted), he cannot show that denying review of his
procedurally defaulted claims will result in a miscarriage of justice.

                                           -3-
jeopardy claim because the prosecutions in the state courts and the federal courts

were for the same conduct. The prosecutions involved in this case were

undertaken by separate sovereign governments and thus do not raise double

jeopardy concerns. See United States v. Trammell, 133 F.3d 1343, 1349 (10th

Cir. 1998). Therefore, we agree with the district court that this claim is without

merit and cannot be used to establish defendant’s ineffective assistance of

appellate counsel claim.

      With respect to the jury instruction claim, defendant fails to point to any

specific jury instruction that he claims was improper. We must look to the jury

instructions “as a whole to determine whether they adequately state the law and

provide the jury with an ample understanding of the issues and controlling

principles of the law.” United States v. Dashney, 117 F.3d 1197, 1201 (10th Cir.

1997). After examining the jury instructions in this case, we agree with the

district court that there were no improper jury instructions given and therefore

that this claim cannot support an allegation of ineffective assistance of counsel.

      Because we find that the omitted issues forming the basis of defendant’s

ineffective assistance of appellate counsel claim are without merit, this claim

fails. Consequently, defendant also has failed to show cause sufficient to excuse

his procedural default, and he is therefore not entitled to habeas relief on his

defaulted claims.


                                         -4-
      Defendant’s only remaining claim is that he has been denied effective

assistance of counsel during his trial. We agree with the district court that

defendant has failed to articulate facts sufficient to establish that his trial

counsel’s performance fell below an objective standard of reasonableness or that

his counsel’s performance prejudiced his defense. Consequently, defendant

cannot prevail on this claim.

      For the reasons discussed above, we conclude that the claims raised by

defendant in this § 2255 petition fail to make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), and that defendant is therefore

not entitled to a certificate of appealability in this court. The appeal is dismissed.

                                         ENTERED FOR THE COURT,


                                         Deanell Reece Tacha
                                         Circuit Judge




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