                                                                               F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                DEC 14 2004
                                        TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,                       No. 04-1236
          v.                                             (District of Colo.)
 CARLESS JONES,                                         (D.C. Nos. 02-S-2405
                                                         and 97-CR-138-S)
                  Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                       *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.              **




      Pro se petitioner Carless Jones, a federal prisoner convicted of distributing

and possessing with intent to distribute cocaine base in violation of 21 U.S.C. §

841(a), filed this 28 U.S.C. § 2255 petition alleging that he had been denied

effective assistance of counsel and that certain evidence had been improperly

admitted against him at trial. The district court denied Jones’s petition for habeas


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
relief, as well as his subsequent application for a Certificate of Appealability

(COA). On appeal, Jones repeats the arguments he made in front of the district

court, and says in addition that Blakely v. Washington, 124 S. Ct. 2531 (2004),

constitutes additional support for his appeal. We deny COA.

                                 Standard of Review

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must

demonstrate that reasonable jurists could debate whether the petition should have

been resolved in a different manner. Slack v. McDaniel, 529 U.S. 473, 484

(2000).

                         Ineffective Assistance of Counsel

      Jones first argues that his counsel’s failure to object to an erroneous jury

instruction rendered his assistance ineffective. A criminal defendant has a

constitutional right to effective assistance of counsel. Strickland v. Washington,

466 U.S. 668 (1984). To be effective, a counsel’s assistance must meet an

objective standard of reasonableness. Id. at 687-88.

      At trial, Jones’s counsel stipulated the admissibility of a chemist’s report

(Exhibit 15). The report analyzed a substance seized from Jones and concluded

that it was cocaine base. The court explained to the jury that “‘stipulation’ means

that this report is in evidence, and you may give it so much weight as you think


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it’s entitled as evidence in this case.” The court later instructed the jury that

when “attorneys on both sides have stipulated or agreed as to the existence of a

fact, the jury must, unless otherwise instructed, accept the stipulation and regard

that fact as proved.” (emphasis added).

      According to Jones, this instruction required the jury to regard Exhibit 15

as an established fact and should have been objected to by his attorney. To the

contrary, the record shows that while the parties agreed to the admissibility of

Exhibit 15, the court went on to explain that the jury did not have to regard

Exhibit 15’s contents as proven. Furthermore, another instruction stated that the

jury had to determine “whether or not the material in question was in fact cocaine

base.” Therefore, no jurist of reason would conclude that Jones’s counsel was

objectively unreasonable in failing to object to the jury instructions.

                          Improper Admission of Evidence

      Second, Jones argues that Exhibit 15 was admitted into evidence without a

proper foundation. Jones’s counsel stipulated to the admissibility of the exhibit,

and the district court found that counsel’s strategic decision was not ineffective

assistance of counsel given the availability of the chemist to testify about the

preparation of the report and the chemist’s testing of the cocaine base.

      We are procedurally barred from considering Jones’s claim. “A defendant

who fails to present an issue on direct appeal is barred from raising the issue in a


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§ 2255 motion, unless he can show cause for his procedural default and actual

prejudice resulting from the alleged errors, or can show that a fundamental

miscarriage of justice will occur if his claim is not addressed.” United States v.

Allen, 16 F.3d 377, 378 (10th Cir. 1994). Jones did not argue on direct appeal

that Exhibit 15 was improperly admitted. Furthermore, he has shown neither

cause for his procedural default nor that a fundamental miscarriage of justice

would occur if his claim is not addressed. Therefore, no jurist of reason would

consider Jones’s contention that Exhibit 15 was improperly admitted.

                        Sixth Amendment Right to Trial by Jury

         Finally, Jones urges us to consider both of the foregoing arguments in light

of Blakely v. Washington, 124 S. Ct. 2531 (2004). Blakely involved the Sixth

Amendment right to a jury trial, and is therefore not relevant to whether Jones

was denied assistance of counsel or whether evidence was improperly admitted

against him. Therefore, no jurist of reason would conclude that, in light of

Blakely, Jones has made a substantial showing of a denial of a constitutional

right.

         Accordingly, we deny COA.

                                         Entered for the Court

                                         Timothy M. Tymkovich
                                         Circuit Judge



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