                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 14 2003
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 02-2339

 KOREY SANDUSKY,

       Defendant-Appellant.




                                     ORDER



Before KELLY, BRISCOE, and LUCERO, Circuit Judges.




      Korey Sandusky, a federal prisoner, requests a certificate of appealability

(“COA”) to appeal the denial of his 28 U.S.C. § 2255 habeas petition. For

substantially the same reasons set forth by the magistrate judge and adopted by

the district court in its Order of October 15, 2002, we deny a COA.

      In 1999, a federal jury convicted Sandusky of conspiring to possess more

than 100 kilograms of marijuana with intent to distribute, a violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846. Sandusky was sentenced to 110 months’

imprisonment and four years’ supervised release. He then appealed to this court,

and we affirmed his conviction and sentence. United States v. Osborne, 12 Fed.

Appx. 815, 2001 WL 603878 (10th Cir. June 4, 2001). On January 30, 2002,

Sandusky timely filed a habeas petition under 28 U.S.C. § 2255, claiming that his

trial counsel was ineffective for (1) failing to challenge at sentencing the quantity

of marijuana involved in the offense, (2) failing to challenge the court’s

“deliberate ignorance” instruction, and (3) committing a “multiplicity of errors.”

(R. Doc. 1 at 38, 49, 52.) Adopting the recommendations of the magistrate judge,

the district court denied the petition and dismissed the matter.

      Because Sandusky’s petition was filed after April 24, 1996, the effective

date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s

provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1

(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA

provides that a petitioner may not appeal a denial of habeas relief under 28 U.S.C.

§ 2255 unless a COA is granted. 28 U.S.C. § 2253(c)(1)(B). A COA may be

issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). This standard requires “a demonstration that

. . . includes showing that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or


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that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

Because the district court denied Sandusky’s application for a COA, we proceed

to analyze whether a COA should have been granted.

       In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

articulated the standard for determining whether counsel provided constitutionally

ineffective assistance. First, the petitioner “must show that counsel’s

performance was deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id. at 687. Second, the petitioner “must show that the

deficient performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id.

      Having reviewed petitioner’s appellate brief, the magistrate judge’s

recommendation adopted by the district court, and the material portions of the

record on appeal, we conclude that Sandusky has failed to make a debatable

showing that both Strickland prongs were met with respect to any of his claims.

No reasonable jurist would conclude that it is debatable whether Sandusky’s

habeas petition should have been granted. Accordingly, Sandusky has failed to

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.


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§ 2253(c)(2). Sandusky’s application for a COA is DENIED, and the matter is

DISMISSED.

                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




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