                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                  December 17, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 13-1328
                                            (D.C. Nos. 1:11-CV-00063-REB and
 CARL W. PURSLEY, Jr.,                            1:05-CR-00342-REB-3)
                                                         (D. Colo.)
          Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.



      After a jury convicted Carl Pursley of retaliating against a witness and

conspiring to the same, all in violation of 18 U.S.C. § 1513(b)(1), this court

affirmed the conviction on direct appeal. Mr. Pursley then filed a collateral

attack under 28 U.S.C. § 2255, alleging primarily that he was denied effective

assistance of counsel in his appeal. The district court disagreed, issued a detailed

memorandum and order dismissing Mr. Pursley’s request, and denied Mr.

Pursley’s request for a certificate of appealability (COA).


      *
         This order is not binding precedent except under the doctrines of law of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.
      Now before us, Mr. Pursley renews his request for a COA. To succeed, he

must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). And to do that he must show reasonable jurists could debate

(or agree on) a different resolution of the habeas petition or the merit of further

proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Even read with the

special solicitude we grant pro se filings, we cannot conclude that Mr. Pursley has

crossed this threshold.

                                        ***

      Mr. Pursley argues that his appellate counsel was constitutionally deficient

for failing to pursue seven separate lines of attack. 1 This is not a case, however,

in which appellate counsel “entirely fail[ed] to subject the prosecution’s case to

meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659

(1984). Much to the contrary, appellate counsel vigorously pursued other

arguments on Mr. Pursley’s behalf. So to succeed on a claim of ineffective

assistance, Mr. Pursley must demonstrate two things. First, he must show that his

attorney’s performance “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must prove that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

      1
         Before the district court, Mr. Pursley also asserted that his appellate
counsel should have argued that (1) his advisory counsel at trial was ineffective
and (2) the district judge should have compelled the testimony of three prisoners.
On appeal, he does not renew these claims so we do not consider them. Bronson
v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

                                         -2-
result of the proceeding would have been different.” Id. at 694. In none of the

seven circumstances Mr. Pursley cites, however, can we discern even deficient

performance.

      1. Mr. Pursley suggests that his appellate lawyer should have argued that

because he (Mr. Pursley) proceeded pro se at arraignment, he was denied

effective assistance of counsel. The most immediate problem with this argument

is that the magistrate judge repeatedly offered Mr. Pursley free counsel. At a

preliminary hearing, the magistrate judge advised Mr. Pursley, “You have the

right to be represented by a lawyer, you may hire a lawyer if you want to. If you

can’t afford a lawyer and if you ask me to, I’ll appoint a lawyer to represent you

free of charge.” Afterward, Mr. Pursley acknowledged that he understood that he

had the right to counsel. Despite this, Mr. Pursley decided to represent himself:

“[R]ight now I want to proceed pro se. I don’t want you forcing [court-

appointed] counsel upon me.” The magistrate judge again asked, “Mr. Pursley,

you also understand that you have the right to have a lawyer appointed to

represent you free of charge?” Again, Mr. Pursley advised that he understood.

Undeterred, the magistrate judge advised Mr. Pursley, “[Y]ou’ll be substantially

disadvantaged if you don’t take advantage of that right. You understand that?”

Yet again, Mr. Pursley advised that he understood. A week later at his

arraignment hearing, the magistrate judge advised Mr. Pursley, “At the trial,

you’ll have the right to be represented by a lawyer. You have that right now. I

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previously asked you if you wanted a lawyer appointed and you said, No. Have

you reconsidered? Would you like me to consider appointing a lawyer to

represent you without charge?” Mr. Pursley advised the magistrate that he did

not.

       On appeal, Mr. Pursley offers no argument and cites no authority

suggesting why these various warnings weren’t enough to discharge the court’s

responsibility to ensure that his waiver of counsel at arraignment was knowing,

intelligent, and voluntary. See Maynard v. Boone, 468 F.3d 665, 676 (10th Cir.

2006). Neither, given their volume and substance, can we conclude that Mr.

Pursley’s appellate counsel was ineffective for failing to argue otherwise in his

direct appeal. Thornton v. Jones, No. 13-6021, 2013 WL 4840498, at *3 (10th

Cir. Sept. 12, 2013) (unpublished) (“Because there is no merit to Applicant’s

claims that he was denied the right to trial counsel, reasonable jurists could not

debate whether Applicant’s appellate counsel was deficient for failing to argue

the matter.”).

       2. Mr. Pursley argues that his waiver of counsel at trial (as opposed to at

arraignment) was not voluntary. But here again the district court advised Mr.

Pursley against representing himself. The district judge also conducted a lengthy

hearing to make sure that Mr. Pursley knew what he was doing in deciding to

represent himself. For his part, Mr. Pursley preferred to skip the proceeding:

“Excuse me, your Honor. Is it possible we can waive this advisement? We have

                                        -4-
been through this before not too long ago.” But the district judge insisted. Given

this record, once again we cannot say that appellate counsel was deficient for

failing to argue that Mr. Pursley knowingly, intelligently, and voluntarily waived

his right to trial counsel. Thornton, 2013 WL 4840498, at *3.

         3. Mr. Pursley next contends that his lawyer on appeal should have argued

that the district court’s denial of his request for a continuance constituted error.

But Mr. Pursley’s appellate counsel specifically pursued that line of argument and

this court rejected it on the merits. United States v. Pursley, 577 F.3d 1204,

1227-29 (10th Cir. 2009). Absent an intervening change in law, Mr. Pursley is

not free to raise issues in this collateral proceeding that were addressed in his

direct appeal. See United States v. Fennell, 207 F. App’x 916, 919 (10th Cir.

2006) (“[W]e are precluded on collateral attack from considering issues disposed

of on direct appeal.”); United States v. Prichard, 875 F.2d 789, 791 (10th Cir.

1989).

         To the extent Mr. Pursley now faults his appellate counsel for failing to

argue that the denial of a continuance constituted not just error but structural

error, we see no deficient performance. Structural errors are rare indeed. See

United States v. Pearson, 203 F.3d 1243, 1260 (10th Cir. 2000). They must affect

“the entire conduct of the trial from beginning to end and deprive the defendant of

basic protections, without which a criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or innocence.” Id. (internal quotation

                                          -5-
marks omitted). Mr. Pursley points to no authority suggesting that a denial of the

continuance in his case might be considered structural error — and so no basis on

which we might cite appellate counsel for deficient performance.

      4. Mr. Pursley suggests that his appellate counsel should have argued that

the district court erred by forcing him to wear a stun belt hidden under his

clothing, concealed from the jury. But when Mr. Pursley’s co-defendant

attempted this argument before this court, he lost. This court held that the district

court had articulated specific reasons for the restraint — chief among them, a

tangible risk to witness safety — and held that the district court had taken steps to

limit any prejudice by ensuring the restraint was concealed. United States v.

Wardell, 591 F.3d 1279, 1294-96 (10th Cir. 2009). Even if Mr. Pursley’s and Mr.

Wardell’s situations are not completely flush, we cannot say that Mr. Pursley’s

appellate counsel was ineffective by failing to raise a claim so similar to one this

court has expressly rejected.

      5. Mr. Pursley argues that his lawyer on appeal should have argued that the

district court committed plain error by allowing the jury to consider evidence of

his prior bad acts. But, though he did not request one, the district court provided

limiting instructions regarding the permissible use of this evidence. Given these

facts, Mr. Pursley’s appellate counsel had good reason for not raising this

argument. United States v. Oles, 994 F.2d 1519, 1524 (10th Cir. 1993) (“The

general rule is that the effect of improper evidence may be remedied by

                                         -6-
admonishing the jury to disregard it and by withdrawing it from evidence.”

(internal quotation marks omitted)).

      6. Mr. Pursley says his appellate counsel should have argued that

the district judge should have recused himself because, among other things, the

judge was a witness whom Mr. Pursley wished to call at trial. But the district

judge found that Mr. Pursley had presented no evidence suggesting that the court

had any relevant testimony to offer. We agree. On direct appeal, Mr. Wardell

also argued — admittedly for other reasons — that the district judge should have

recused. This court held that argument “patently frivolous.” Wardell, 591 F.3d at

1306 n.16. It was well within appellate counsel’s discretion to reach a similar

conclusion with respect to Mr. Pursley and so decline to present the argument.

      7. Mr. Pursley argues that his appellate counsel should have argued that his

(Mr. Pursley’s) Sixth Amendment Confrontation Clause rights were violated when

the district court did not permit him to examine a witness (Jessie Cluff) a second

time. Mr. Pursley’s appellate counsel did raise this issue on direct appeal,

however, and this court rejected it. Pursley, 577 F.3d at 1225. Mr. Pursley may

not pursue this line of argument again on collateral review. See Fennell, 207 F.

App’x at 919; Prichard, 875 F.2d at 791.

                                        ***

      Besides his various attacks on appellate counsel’s performance, Mr. Pursley

argues that the district court erroneously denied his requests for a trial transcript

                                         -7-
in connection with his habeas motion, to conduct discovery in aid of his habeas

motion, and to amend his habeas motion. With respect to his request for a free

trial transcript, however, Mr. Pursley must show (at least) that “the suit or appeal

is not frivolous and that the transcript is needed to decide the issue presented by

the suit or appeal.” 28 U.S.C. § 753(f). And this he cannot do. Mr. Pursley says

he needs access to the transcript to show that he, in fact, sought to recall Mr.

Cluff — and, thus, that appellate counsel was deficient for failing to pursue his

Confrontation Clause claim. In this way, he says, the transcript is essential to the

success of his collateral attack on his conviction. But none of this is legally

salient. As we have explained, the Sixth Amendment issue was raised and

resolved on direct appeal and simply cannot be revisited in a collateral

proceeding. See Fennell, 207 F. App’x at 919; Prichard, 875 F.2d at 791. As to

the discovery and amendment requests, the district court found that even if Mr.

Pursley had been allowed additional discovery and an amended petition, he would

not be entitled to relief. We agree.




                                         -8-
                                         ***

      The application for a COA is denied and the appeal is dismissed. Mr.

Pursley’s motion to proceed in forma pauperis is denied. Mr. Pursley is reminded

that he must pay the filing and docket fees in full to the clerk of the district court.

                                         ENTERED FOR THE COURT



                                         Neil M. Gorsuch
                                         Circuit Judge




                                          -9-
