                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-3298
 v.                                                       (D. Kansas)
 STEVEN C. PERRINE,                          (D.C. Nos. 6:09-CV-01065-MLB and
                                                   6:05-CR-10254-MLB-1)
              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and petitioner, Steven C. Perrine, a prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) in order to appeal the district court’s




      *
       This order is not binding precedent except under the doctrines of law of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.
denial of his 28 U.S.C. § 2255 petition and his accompanying request for an

evidentiary hearing. We deny Mr. Perrine a COA and dismiss this matter.



                                  BACKGROUND

      Mr. Perrine is currently serving a 235-month sentence following his

conviction on counts related to child pornography, illegal possession of firearms

and criminal forfeiture. Our court affirmed his conviction in 2008. See United

States v. Perrine, 518 F.3d 1196 (10 th Cir. 2008). Mr. Perrine contends that he

requested his retained counsel to file a petition for certiorari, but that his counsel

“refused.” Our opinion sets forth all the facts pertaining to Mr. Perrine’s

conviction, so we do not state them here, except where necessary to our

disposition.

      On March 17, 2009, Mr. Perrine filed a § 2255 petition to vacate, set aside,

or correct a sentence. He argued the following: (1) he was convicted by evidence

gained as a result of an unconstitutional search and seizure; (2) he was unlawfully

arrested; (3) he was subjected to double jeopardy; and (4) his retained counsel

was ineffective. The district court rejected the first three grounds for relief, as

these arguments “were either unsuccessfully raised, or could have been raised, on

direct appeal.” Memorandum & Order at 2, R. Vol. 1 at 114. The district court

correctly disposed of those three issues. See United States v. Bolden, 472 F.3d

750, 751 (10 th Cir. 2006) (“We remind [petitioner] that a § 2255 petition is not an

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appropriate vehicle to raise issues that should have been raised on direct

appeal.”). With respect to Mr. Perrine’s claim of ineffective assistance of

counsel, the district court found that Mr. Perrine’s “retained counsel’s

performance more than satisfied the Strickland standards.” Memorandum &

Order at 7, R. Vol. 1 at 119. The district court also denied Mr. Perrine’s request

for an evidentiary hearing.

      Mr. Perrine filed a motion before the district court to reconsider its prior

decision. The district court denied his motion, observing that Mr. Perrine had

been “fairly tried, convicted and sentenced.” Memorandum & Order at 3, R. Vol.

1 at 129. This appeal followed.

      On appeal, Mr. Perrine argues: (1) the government’s delivery of his

computer to him, following his state conviction on pornography charges, 1 with

more than 16,000 images of child pornography still on it “violated the appellant’s

right of privacy by interfering with the conduct of his Court ordered, medically

supervised treatment plan”; (2) the district court erred as a matter of law in

denying his § 2255 petition “where the Court misstated the legal standard and

necessary elements of the ‘outrageous Government conduct’ defense and also

ruled . . . that a finding of ‘no outrageous Government conduct’ precluded a


      1
        As the district court stated, “at the time [Mr. Perrine] came to the attention
of federal authorities, [he] was successfully completing his probation following a
2003 state conviction for sexual exploitation of a child.” Memorandum & Order
at 3, R. Vol. 1 at 115.

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finding of entrapment”; (3) the government violated the court’s ruling in limine

and failed to enforce “its own ruling excluding the presentation at trial of images

that were returned to the defendant on February 9, 2004"; (4) the district court

erred by “effectively prohibit[ing] defense counsel from raising the entrapment

defense”; (5) defense and appellate counsel rendered ineffective assistance; and

(6) the district court erred in failing to grant him an evidentiary hearing.

Appellant’s Op. Br. at (i) and (ii).

      The issuance of a COA is jurisdictional. We will issue a COA “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, Mr. Perrine 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). Where the district court has rejected a

claim on its merits, the “petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Id. When the district court dismisses a petition on procedural grounds,

the applicant must not only make a substantial showing of the denial of a

constitutional right; he must also demonstrate that the district court’s “dismissal

on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

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the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. at 484.

      It appears that the first four issues are raised by Mr. Perrine for the first

time in this appeal. “We ordinarily do not decide issues raised for the first time

on appeal.” Fairchild v. Workman, 579 F.3d 1134, 1144 (10 th Cir. 2009); see also

Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10 th Cir. 1997) (holding

that this court is not “a ‘second-shot’ forum . . . where secondary, back-up

theories may be mounted for the first time”). Moreover, as the district court held

with respect to a number of issues presented to it, those issues are equally subject

to dismissal because they either were, or could have been, raised on direct appeal.

The remaining issues not subject to procedural bar are the question of the

effectiveness of counsel and the propriety of the district court’s denial of an

evidentiary hearing.

      While Mr. Perrine endeavors to challenge the effectiveness of both trial and

appellate counsel on appeal, he only challenged the effectiveness of trial counsel

before the district court. Accordingly, we will only address that issue in this

appeal. As indicated, the district court considered the merits of Mr. Perrine’s

argument that his trial counsel was ineffective. We conclude that no jurist of

reason could debate whether the petition should have been resolved differently on




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that issue. Indeed, no jurist of reason could find fault with the district court’s

analysis of the matter.

      Finally, Mr. Perrine asserts that the district court should have ordered an

evidentiary hearing. “In response to a § 2255 motion, the district court must hold

an evidentiary hearing on the prisoner’s claims unless the motion and files and

records of the case conclusively show that the prisoner is entitled to no relief.”

United States v. Lopez, 100 F.3d 113, 119 (10 th Cir. 1996) (quotations omitted).

Mr. Perrine’s motion and supporting materials conclusively establish that he is

not entitled to any relief. Accordingly, the district court did not abuse its

discretion in denying an evidentiary hearing. See id. (applying abuse of

discretion standard to district court’s denial of evidentiary hearing).



                                   CONCLUSION

      Because we find no jurists of reason would find it debatable whether the

district court was correct in denying Mr. Perrine’s § 2255 petition, we deny

Mr. Perrine’s application for a COA and dismiss this matter. We also conclude

that the district court did not abuse its discretion in denying Mr. Perrine an

evidentiary hearing.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge

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