                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     March 14, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                       No. 06-6335
 v.                                            (D.C. Nos. CIV-05-877-T and
                                                       CR-03-51-T)
 N ICKI M IC HELE PEN N IN G TON,                      (W .D. Okla.)

       Defendant - Appellant.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Nicki M ichele Pennington, a federal inmate appearing pro se, seeks a

Certificate of Appealability (COA) so that she may challenge the district court’s

denial of her motion to vacate, set aside or correct her sentence, 28 U.S.C.

§ 2255. On appeal, M s. Pennington claims that the sentence she is currently

serving was imposed in violation of the Sixth Amendment. See United States v.

Booker, 543 U.S. 220 (2005). She also claims that her appellate counsel was

ineffective for inducing her to withdraw her direct appeal which could have raised

this issue. The district court denied M s. Pennington’s § 2255 motion on grounds

that the Sixth Amendment claim was procedurally defaulted, and that M s.

Pennington could not show prejudice based upon counsel’s actions. Because M s.
Pennington has failed to demonstrate that it is reasonably debatable whether the

district court’s ruling dismissing her petition is correct, see Slack v. M cDaniel,

529 U.S. 473, 484 (2000), w e deny a COA and dismiss the appeal.

      On February 27, 2003, a federal grand jury returned an indictment against

M s. Pennington charging her with: one count of aiding and abetting the

production of child pornography in violation of 18 U.S.C. § 2251(a) and 18

U.S.C. § 2 (count 1); one count of aiding and abetting the possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and 18 U.S.C. § 2 (count

3); and two counts of aiding and abetting the possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 2 (counts 4 and 5). A

little over three months later, M s. Pennington entered a plea of nolo contendere to

these counts.

      Shortly thereafter, a pre-sentence investigation report (PSR) w as prepared.

M s. Pennington eventually filed an untimely objection to the PSR’s

recommendation of a two-level enhancement for physical restraint of the victim

and also its failure to recommend a three-level reduction for acceptance of

responsibility. At sentencing, the district court overruled M s. Pennington’s

objections to the PSR and on October 15, 2003, sentenced her to 210 months’

imprisonment on count 1, 60 months’ imprisonment on each of the remaining

three counts to run concurrently with the sentence on count 1, and three years’

supervised release.

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        M s. Pennington subsequently filed a notice of appeal. Nonetheless, “[a]fter

discussion with counsel, and after being told that if she were to appeal again

before the sentencing judge, she would receive more time, [M s. Pennington]

advised appointed counsel that she wished to dismiss her appeal.” Aplt. Br. at 6-

7. Counsel filed a motion to dismiss the appeal which was granted on M arch 14,

2005.

        On August 1, 2005, M s. Pennington filed her § 2255 motion, and amended

it on M arch 24, 2006. She claims that her sentence was imposed in violation of

Booker because the sentencing court increased her sentence based on facts that it

had only found by a preponderance of the evidence, and that counsel was

ineffective for not advising her to continue her appeal in light of Booker. The

district court held that M s. Pennington’s original claim is procedurally defaulted

because the arguments she now makes should have been presented on direct

appeal. It further held M s. Pennington had not shown cause and prejudice, let

alone argued a fundamental miscarriage of justice, that might excuse the

procedural default. The court rejected the ineffective assistance of counsel claim

for w ant of a showing of prejudice.

        A collateral challenge is not a substitute for appeal. Bousley v. United

States, 523 U.S. 614, 621 (1998). In other words, a § 2255 motion is not a

vehicle through which issues overlooked on direct appeal may be relitigated. See

United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004). Thus, “failure to

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raise an issue . . . on direct appeal imposes a procedural bar to habeas review.”

United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir. 2002). M s.

Pennington pled guilty and had her direct appeal dismissed. Consequently, her

motion is procedurally barred unless an exception applies. See United States v.

W iseman, 297 F.3d 975, 979 (10th Cir. 2002) (“Generally, a movant is barred

from raising an alleged error affecting his conviction or sentence for the first time

on collateral review unless he can show both cause for the default and actual

prejudice.”).

      M s. Pennington attempts to overcome the procedural bar with claims of

ineffective assistance of counsel. One well-established exception to the

procedural bar against defaulted claims is where the “defendant can show both

good cause for failing to raise the issue earlier, and that the court’s failure to

consider the claim would result in actual prejudice to his defense.” Cervini, 379

F.3d at 990. “A meritorious claim of ineffective assistance of counsel constitutes

cause and prejudice for purposes of surmounting the procedural bar.” United

States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004). In order to succeed on a

claim of ineffective assistance of counsel, a defendant must show her counsel’s

performance “fell below an objective standard of reasonableness,” and that actual

prejudice resulted. Strickland v. W ashington, 466 U.S. 668, 687-88 (1984).

      M s. Pennington’s ineffective assistance of counsel argument fails because

she has not shown that her trial or appellate counsel rendered ineffective

                                          -4-
performance. She first claims that trial counsel was ineffective for failing to

object to the district court’s enhancement of her sentence with facts found only by

a preponderance of the evidence. She argues that this judicial fact-finding is

illegal in the wake of Booker. But her sentencing occurred on October 15, 2003,

and Booker was not issued until January 12, 2005. Booker is not retroactive on

collateral review, see United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir.

2005), and trial counsel is not ineffective for failing to anticipate future

developments in the law, see Harms, 371 F.3d at 1212 (“The Sixth Amendment

does not require counsel for a criminal defendant to be clairvoyant.”).

      She also claims that the advice she received concerning her appeal was

“coercive” because appellate counsel advised her that were she to appeal she

would probably receive a higher sentence on remand, and that given that advice

she decided to dismiss her appeal. Despite M s. Pennington’s contrary

characterization, given the possibility of a longer sentence which plainly existed,

the advice given was not “coercive.” See Hannon v. M aschner, 845 F.2d 1553,

1556 (10th Cir. 1988) (noting that counsel must explain the pros and cons of an

appeal in order for a defendant to make a voluntary and intelligent choice not to

do so); Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) (explaining that

for counsel’s advice to be constitutionally ineffective it must be “completely

unreasonable, not merely wrong”); cf. Holcomb v. M urphy, 701 F.2d 1307, 1311

(10th Cir. 1983) (“[T]he principal actor in the decision whether to appeal is the

                                          -5-
criminal defendant.”).

      Additionally, “[w]hen a defendant alleges his appellate counsel rendered

ineffective assistance by failing to raise an issue on appeal, we examine the

merits of the omitted issue.” United States v. Cook, 45 F.3d 388, 392 (10th Cir.

1995). Booker did not eliminate a district court’s fact-finding role (by a

preponderance of the evidence) in sentencing. United States v. M agallanez, 408

F.3d 672, 684 (10th Cir. 2005). Also, the sentencing court in this case merely

exercised its discretion to impose a sentence within the guideline range, which did

not implicate the Sixth Amendment pre-Booker, and does not implicate it post-

Booker. See Booker, 543 U.S. at 233 (“W e have never doubted the authority of a

judge to exercise broad discretion in imposing a sentence w ithin a statutory

range.”). Simply put, M s. Pennington would not have satisfied plain error review

on appeal. See United States v. Gonzales-Huerta, 403 F.3d 727, 736-39 (10th Cir.

2005) (en banc). In conclusion, the district court’s resolution of the ineffective

assistance of counsel claim is not reasonably debatable.

      W e DENY a COA, DENY leave to proceed in forma pauperis, and

DISM ISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge



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