                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 October 31, 2014
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 14-1199
                                            (D.C. Nos . 1:12-CV-02746-REB and
 WENDEL ROBERT WARDELL, JR.,                      1:05-CR-00342-REB-4)
                                                          (D. Colo.)
              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      Defendant and Appellant, Wendel Wardell, proceeding pro se, seeks a

certificate of appealability (“COA”) to enable him to appeal the dismissal of his

28 U.S.C. § 2255 petition and his subsequent motion to vacate that dismissal.

Concluding that Mr. Wardell has failed to satisfy the requirements for issuance of

a COA, we deny him a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
       The relevant facts are as follows, as explained by the district court:

Following a jury trial, Mr. Wardell was convicted of conspiracy to retaliate

against a witness, in violation of 18 U.S.C. § 371, and retaliation against a

witness, in violation of 18 U.S.C. § 1513(b)(1) and § 2. Three co-defendants

were found guilty of the same charges. The witness who suffered the retaliation

was Jesse Cluff. Mr. Cluff testified against Mr. Wardell and his co-defendant,

Carl Pursley, in an earlier prosecution of Mr. Wardell and Mr. Pursley on charges

of tax fraud. In the witness retaliation case, the government claimed that Mr.

Wardell had arranged to have two inmate friends, Vernon Templeman and Shawn

Shields, brought to the courthouse for the purpose of retaliating against Mr. Cluff.

At the time, Messrs. Wardell, Pursley, Templeman, Shields and Cluff were

incarcerated. Evidence at the witness retaliation trial showed that Mr.

Templeman and Mr. Shields attacked and beat Mr. Cluff while the three were in

the same holding cell in the courthouse. The evidence also showed that this

beating was motivated and encouraged by Mr. Wardell and Mr. Pursley because

of their resentment toward Mr. Cluff and his testimony against them at the tax

fraud trial.

       The district court sentenced Mr. Wardell to 115 months in prison, which

was to run consecutively to other prison sentences he was serving for other

convictions. We affirmed. United States v. Wardell, 591 F.3d 1279 (10th Cir.

2009) (correcting and superseding prior opinion at 581 F.3d 1272). The United

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States Supreme Court denied certiorari. Wardell v. United States, 132 S. Ct. 430

(2011).

      Mr. Wardell filed the instant 28 U.S.C. § 2255 petition, alleging

insufficient evidence to convict and ineffective assistance of appellate counsel for

failing to raise insufficiency of the evidence on direct appeal. The district court

denied the motion and entered judgment. Mr. Wardell appealed. He also filed a

post-judgment motion seeking to vacate or set aside the order denying relief under

§ 2255. The district court determined that it did not have jurisdiction to consider

the matters raised in the post-judgment motion and denied it. Mr. Wardell filed

an amended notice of appeal.

      We note that Mr. Wardell has filed more than thirty cases in our court since

1996, and is therefore a “frequent filer.” He has accumulated three “strikes”

under the PLRA, 28 U.S.C. § 1915(g). The PLRA does not, however, apply to

§ 2255 petitions like this one, so we allow this appeal to proceed without

challenge as to whether Mr. Wardell should pay the filing fee in advance. Mr.

Wardell has filed a request to proceed on appeal in forma pauperis (‘”ifp”), which

we deny.

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

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For those claims

the district court denies on their merits, the petitioner must demonstrate “that

reasonable jurists could find the district court’s assessment of the constitutional

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claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When the district court denies a COA on procedural grounds, the petitioner must

demonstrate “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and . . . whether the

district court was correct in its procedural ruling.” Id.

         In addressing Mr. Wardell’s § 2255 petition, the district court applied the

familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), to Mr.

Wardell’s claim of ineffective assistance of appellate counsel. The district court

also addressed the timeliness of Mr. Wardell’s petition and the government’s

argument that certain issues were procedurally barred. The court carefully

examined each argument and determined that Mr. Wardell’s arguments lacked

merit:

                 Considered independently of the ineffective assistance of
         appellate counsel claim, none of the six issues raised by Mr. Wardell
         . . . present a valid basis for relief under § 2255. Viewing those
         issues in the context of the ineffective assistance of appellate counsel
         claim, those issues do not present a valid basis for relief under
         § 2255. Thus, the motion must be denied.

Order Denying Motion to Vacate at 13; R. Vol. 1 at 112. The court also denied

Mr. Wardell a COA, and denied Mr. Wardell’s request to reconsider its first

Order denying relief under § 2255. Mr. Wardell renews his request for a COA

with this court.




                                            -4-
        We have carefully reviewed the record in this case and we conclude that,

for substantially the reasons stated in the district court’s Orders, we DENY Mr.

Wardell a COA and dismiss this matter. Mr. Wardell fails to demonstrate that the

court erred in its analysis of the applicable law and the application of that law to

the facts of this case. Furthermore, his efforts to reargue evidentiary issues

resolved against him on direct appeal are misplaced. We also DENY Mr.

Wardell’s motion to proceed ifp, and remind him that all filing fees are due in

full.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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