                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 12, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                           FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 08-4178
                                               (D.C. Nos. 2:08-CV-00005-TC &
 LESLIE D. MOWER,                                 2:02-CR-00787-TC-SA-2)
                                                           (D. Utah)
              Defendant-Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      Leslie D. Mower was convicted on one count of conspiracy and six counts

of tax evasion for tax years 1992-1997. She was sentenced to twenty-seven

months imprisonment and thirty-six months of supervised release. We affirmed

her conviction and sentence on direct appeal. See United States v. Thompson,

518 F.3d 832 (10th Cir.), cert. denied, 129 S. Ct. 487 (2008). While her direct

appeal was pending, Ms. Mower filed a motion under 28 U.S.C. § 2255 to vacate

her sentence based on ineffective assistance of trial counsel. After an evidentiary

hearing, the district court denied relief. In order to appeal that decision,

Ms. Mower must obtain a certificate of appealability (COA). See 28 U.S.C.
§ 2253(c)(1)(B) (requiring COA to appeal a final order in a § 2255 proceeding).

She filed a motion for a COA in the district court, but the court did not rule on it.

Accordingly, we deem that motion denied. See 10th Cir. R. 22.1(C). Ms. Mower

did not file a motion for a COA in this court, but her notice of appeal constitutes

such a request. See Fed. R. App. P. 22(b)(2).

       The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

A COA may be issued “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Ms. Mower must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation marks omitted). For substantially the same reasons set forth by the

district court in its August 22, 2008, Memorandum Opinion and Order Denying

§ 2255 Petition, we conclude that Ms. Mower has not met the requirements for a

COA.

       To prevail on her claim of ineffective assistance of counsel, Ms. Mower has

the burden of showing by a preponderance of the evidence that counsel’s

performance fell below an objective standard of reasonableness, Strickland v.

Washington, 466 U.S. 668, 688 (1984), and “that there is a reasonable probability

                                          -2-
that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different,” id. at 694. Ms. Mower’s first contention assails the district

court’s application of the standard of review under Strickland. She contends that

the court applied a heightened standard of review to her ineffective assistance

claims by stating that its “review of counsel’s performance must be highly

deferential.” Aplt. Br., Ex. 1, at 2. We disagree. The district court’s deference

to counsel’s performance accords with the Supreme Court’s direction that in

making the determination under the first prong of Strickland, “court[s] should

recognize that counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” See Strickland, 466 U.S. at 690. We see no error in the district

court’s standard of review.

      Ms. Mower also argues that trial counsel (1) failed to adequately

investigate whether her signatures on tax returns and certain checks were forged;

(2) failed to call expert witnesses; (3) failed to present any witness testimony in

her defense; (4) failed to present her with settlement offers; and (5) refused to

allow her to testify. Having reviewed the entire appellate record and the parties’

arguments under the applicable legal framework, we conclude that the district

court’s resolution of these issues is not reasonably subject to debate and that the

issues Ms. Mower seeks to raise on appeal are not adequate to deserve further




                                          -3-
proceedings. We therefore deny Ms. Mower’s request for a COA and dismiss

this appeal.


                                              Entered for the Court


                                              Timothy M. Tymkovich
                                              Circuit Judge




                                    -4-
