                                                                           FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 27 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                          No. 02-2069
    v.                                           (D.C. Nos. CIV-01-1360-JP/LCS
                                                        & CR-00-1273-JP)
    JOHNNIE V. PARKER,                                      (D. N.M.)

                Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before EBEL, BALDOCK, and LUCERO, Circuit Judges.



         Pro se petitioner Johnnie V. Parker, a federal prisoner, seeks a certificate of

appealability (“COA”) from this court in order to appeal the district court’s order

denying the relief sought in his motion filed under 28 U.S.C. § 2255. We deny a

COA and dismiss the appeal.

         Parker pled guilty to armed bank robbery, possession of a short-barreled

shotgun in furtherance of a crime of violence, and aiding and abetting. He was


*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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 and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
sentenced to 340 months’ imprisonment with five years’ supervised release and

$10,300.00 restitution. Parker did not directly appeal his conviction or sentence.

      Parker filed this motion in district court seeking relief under § 2255,

alleging he received ineffective assistance of counsel because counsel failed to

investigate his history of mental disorders or to present mitigating evidence

regarding his mental illness at sentencing, as a result of which he was denied a

downward departure. The district court denied relief, concluding that Parker had

stipulated to the sentencing range, the court was aware of Parker’s mental health

history from the presentence report and its power to depart downward on this

basis, and Parker was permitted allocution at sentencing. Parker seeks a COA to

appeal the district court’s decision.

      We may issue a COA only if Parker “has made a substantial showing of the

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

showing by establishing 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 omitted). We

will grant relief if we determine that “the judgment was rendered without

jurisdiction, or that the sentence imposed was not authorized by law or otherwise

open to collateral attack, or that there has been such a denial or infringement of


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the constitutional rights of the prisoner as to render the judgment vulnerable to

collateral attack.” 28 U.S.C. § 2255. Because Parker filed his application for a

COA pro se, we construe his petition liberally.   Haines v. Kerner , 404 U.S. 519,

520–21 (1972) (per curiam).

      Although the district court did not address Parker’s ineffective assistance of

counsel claim under the correct legal framework, we nevertheless conclude that

Parker cannot make the requisite showing to warrant issuance of a COA. To

prevail on an ineffective assistance of counsel claim, Parker must establish both

that counsel’s performance objectively fell below the standard of reasonableness

and that the deficient performance was prejudicial. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment.” Id. at 691.

      Parker contends counsel was deficient in failing to investigate and verify

his mental illness history as presented in the presentence report. He cannot show,

however, that even if counsel had presented verified evidence of Parker’s mental

illness at sentencing, the district court would have chosen to exercise its

discretion to depart downwards. Cf. United States v. Kissick, 69 F.3d 1048, 1056

(10th Cir. 19 95) (holding prejudice prong met when counsel’s deficient

performance caused defendant to improperly be classified as a career offender, as


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a result of which he received “a significantly greater sentence”). Parker has not

shown that there is a “reasonable probability” that the court would have imposed

a shorter sentence had counsel performed as he now desires, particularly because

information relating to his mental health history was in the presentence report,

which was before the district court at the time of sentencing. Strickland, 466 U.S.

at 694.

      Hence, Parker has failed to make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not

debate whether his § 2255 “petition should have been resolved in a different

manner” or whether “the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (quotation omitted).

Accordingly, we DENY a COA and DISMISS this appeal.

      The mandate shall issue forthwith.


                                              ENTERED FOR THE COURT


                                              Carlos F. Lucero
                                              Circuit Judge




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