                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                          April 19, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 18-6220
                                                    (D.C. Nos. 5:18-CV-00468-F
 SHAWN J. GIESWEIN,                                   and 5:07-CR-00120-F-1)
                                                            (W.D. Okla.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Shawn Gieswein, a pro se federal prisoner,1 seeks a certificate of appealability

(COA) to challenge the district court’s denial of his 28 U.S.C. § 2255 motion. For the

reasons below, we deny Gieswein a COA.




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       1
         We liberally construe the briefs of pro se litigants. Toevs v. Reid, 685 F.3d
903, 911 (10th Cir. 2012).
                                  BACKGROUND

      In 2007, Gieswein was convicted in federal court of two crimes: witness

tampering and felon in possession of a firearm. After concluding that Gieswein

qualified as an armed career criminal under 18 U.S.C. § 924(e), the district court

sentenced him to 240 months’ imprisonment. In 2016, our court granted Gieswein

permission to file a second or successive motion to vacate in light of Johnson v.

United States, 135 S. Ct. 2551 (2015). See In re Gieswein, No. 16-6038 (April 27,

2016). The government conceded that under Johnson Gieswein no longer qualified as

an armed career criminal.

      This led to the district court resentencing Gieswein without the armed career

criminal designation. Even so, the district court sentenced him to the same term—

240 months’ imprisonment. United States v. Gieswein, No. CIV-16-531-F, 2016 WL

11200222 (W.D. Okla. July 25, 2016).

      In response, Gieswein filed a direct appeal, and in 2018 we affirmed the new

sentence. See United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018), cert.

denied, 139 S. Ct. 279 (Oct. 1, 2018). Though we agreed with Gieswein that the

district court had “erred in applying a circumstance-specific approach to determine

that his prior conviction for lewd molestation in Oklahoma state court qualified as a

‘forcible sex offense’ and thus a ‘crime of violence’ under the Sentencing

Guidelines,” we deemed the error harmless because the record showed that even

without this error, the district court would have imposed the same 240-month

sentence. Id. at 1056.


                                           2
       Then Gieswein filed a § 2255 motion to vacate his sentence, arguing that his

trial and appellate counsel had furnished him ineffective assistance during the second

sentencing proceeding. The district court denied the motion and denied the

application for a COA. From us, Gieswein now seeks a COA to review this decision.

To obtain a COA, Gieswein must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253. To do so, he “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                     DISCUSSION

       Gieswein argues that both his trial counsel and appellate counsel provided

ineffective assistance concerning his resentencing. Proving ineffective assistance of

counsel requires a two-part showing. Strickland v. Washington, 466 U.S. 668, 687

(1984). First, Gieswein must prove that the counsel’s performance was “deficient”—

that is, the representation “fell below an objective standard of reasonableness.” Id. at

688. Second, he must establish “prejudice”—that is, “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

       In his motion, Gieswein raises four arguments supporting his Strickland

claims: (1) that his resentencing attorneys failed to challenge his witness-tampering

conviction; (2) that they failed to challenge his felon-in-possession conviction;

(3) that they failed to argue that his prior state court conviction for destruction


                                            3
of property by explosive device was not a crime of violence under the guidelines,

which if successful would have lowered his guidelines range; and (4) that they failed

to challenge several errors by the resentencing court—specifically, certain statements

made by the court, the court’s decision to run his sentences consecutively, and the

court’s balancing of the § 3553(a) sentencing factors—and failed to raise nationwide

sentencing disparities.

      Except for the sentencing-disparities argument, the district court considered

and soundly rejected all of these arguments. Because we agree with the district

court’s assessment of the claims, we need not restate the reasoning here. See Chivers

v. Reaves, 750 F. App’x 769, 770 (10th Cir. 2019) (“When a district court accurately

takes the measure of a case and articulates a cogent rationale, we see no useful

purpose for a reviewing court to write at length.”). And because we agree that

reasonable jurists could not debate the correctness of the district court’s ruling, we

deny Gieswein a COA. See Slack, 529 U.S. at 484. As for Gieswein’s argument that

his attorneys should have raised the issue of disparities in national sentencing, neither

his petition nor his brief on appeal provides any support that his counsels’ efforts fell

below an “objective standard of reasonableness.” Strickland, 466 U.S. at 687–88; see

also United States v. Cook, 45 F.3d 388, 394 (10th Cir. 1995) (“The Sixth

Amendment does not require an attorney to raise every nonfrivolous issue on

appeal.”). We therefore find that he has failed to meet his burden to prove

ineffectiveness on this basis. See Strickland, 466 U.S. at 687–88.




                                            4
      Finally, Gieswein has submitted a supplementary brief raising additional

grounds for relief. We generally decline to consider arguments not raised in the

§ 2255 petition. See United States v. Rodriguez, 768 F.3d 1270, 1272 (10th Cir.

2014). And even if we were to consider them, these claims have no merit.2

                                   CONCLUSION

      We deny Gieswein’s application for a COA and dismiss this appeal. His

motion to proceed in forma pauperis is granted.



                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




      2
        First, Gieswein seeks to undermine his felon-in-possession conviction by
directing us to cases he says apply the strict scrutiny standard of review in cases
involving the Second Amendment. Appellant Suppl. Br. at 1–4. But, for starters,
Gieswein’s attorneys could not challenge the underlying conviction during
resentencing. Gieswein’s conviction became final long ago, see 28 U.S.C. § 2255(f)
(allowing § 2255 motions no later than one-year after the conviction), and a Johnson
resentencing does not open the door to challenge his conviction. Any challenge
brought by Gieswein’s counsel would have been untimely under the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 33(b).
       Second, citing Third Circuit cases, Gieswein alleges a Speedy Trial violation,
though he admits that he “did not raise this issue in [his] § 2255 petition” because “he
did not discover this violation until further research.” Appellant Suppl. Br. at 5. Here
again, for the same reasons stated above, Gieswein’s counsel at resentencing could not
challenge his underlying conviction during his Johnson resentencing. Because
reasonable jurists could not debate these points, his application fails on these points
too. See Slack, 529 U.S. at 484.

                                           5
