                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 AUG 11 1998
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                            No. 98-6017
 JOSEPH C. BENNETT,                                    (D.C. No. CIV-97-1359-A)
                                                              (W.D. Okla.)
           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**


       Defendant Joseph C. Bennett seeks a certificate of appealability to appeal the

district court’s decision denying his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. We conclude Defendant has not made a substantial showing of the

denial of a constitutional right. Accordingly, we deny his request for a certificate of


       *
               This order and judgment is not binding precedent, except under the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.
       **
             After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
appealability and dismiss the appeal.

       Defendant is an inmate at the Federal Correctional Institution in Phoenix, Arizona,

where he is serving concurrent 262 month sentences for conspiring to possess with the

intent to distribute methamphetamine, and possession with intent to distribute

methamphetamine in respective violation of 21 U.S.C. §§ 846 and 841(a)(1). After being

sentenced on the above counts, Defendant directly appealed his convictions arguing that

the district court erroneously denied his motion to suppress certain evidence and

improperly instructed the jury by not explicitly stating that interdependence is an element

of a conspiracy. We affirmed his conviction. United States v. Bennett, 78 F.3d 598, 1996

WL 108558 (10th Cir. 1996) (unpublished). Defendant then sought a writ of certiorari,

which the United States Supreme Court denied. United States v. Bennett, 117 S.Ct. 384

(1996).

       Dissatisfied with the fruits of his previous appeals, Plaintiff filed a § 2255 motion

requesting that the district court vacate his sentences and grant him a new trial. As

grounds for relief, Plaintiff raised numerous issues which he failed to bring in his direct

appeal. Defendant also argued for the first time that his appellate counsel was ineffective

for failing to raise the issues in his prior appeal. In a thorough and well-reasoned

memorandum opinion, the district court denied Defendant’s motion. Defendant then

requested that the district court grant a certificate of appealability so that he could appeal

the court’s decision. The district court did not act upon Plaintiff’s request within thirty


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days. Therefore, the court effectively denied Defendant’s request for a certificate of

appealability. See Tenth Circuit Emergency General Order of October 1, 1996.

Defendant now asks us to grant the certificate of appealability and reach the merits of his

appeal.

       In support of his request for a certificate of appealability, Defendant advances

several points of error which he failed to raise in his direct appeal. Specifically,

Defendant claims that: (1) the court violated his right to due process because it failed to

keep a complete record of his trial; (2) the court violated his Fifth and Sixth Amendment

rights by not notifying him of the jury’s request for the exhibit list; (3) the court

improperly instructed the jury regarding circumstantial evidence; (4) the court improperly

enhanced his sentence based on prior unconstitutional convictions. Defendant further

attempts an end run around any procedural problems associated with the above points of

error by contending that his appellate counsel was constitutionally ineffective in not

raising the above issues in his direct appeal.

       We have thoroughly reviewed Defendant’s application for a certificate of

appealability, his brief, the district court’s order, and the entire record before us. We

conclude that Defendant is procedurally barred from raising the issues which should have

been brought in his direct appeal, United States v. Allen, 16 F.3d 377, 378 (10th Cir.

1994), and that he has failed to demonstrate any prejudice arising from his appellate

counsel’s alleged errors. Strickland v. Washington, 466 U.S. 668, 688 (1984). The


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district court’s order denying Defendant’s § 2255 motion to vacate his federal sentence is

not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving

of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983).

Accordingly, because we find that Defendant has not made a substantial showing of the

denial of a constitutional right, we DENY his request for a certificate of appealability and

DISMISS the appeal.



                                                 Entered for the Court,



                                                 Bobby R. Baldock
                                                 Circuit Judge




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