                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     February 23, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


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

                 Plaintiff - Appellee,                   No. 06-3262
          v.                                              (D. Kansas)
 SH A W N L. D IG H ER A,                        (D.C. No. 06-CV-3026-RDR)
                                                (D.C. No. 97-CR-40072-RDR)
                 Defendant - Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      On M arch 24, 1998, Shawn Dighera pleaded guilty in the United States

District Court for the District of Kansas to possession of methamphetamine with

intent to distribute. See 21 U.S.C. § 841(a)(1). The district court sentenced him

to 70 months’ imprisonment. M r. Dighera filed a motion under 28 U.S.C. § 2255

on January 19, 2006, contending that his conviction should be set aside because a

recent investigation and report by the Shawnee County District Attorney revealed

that certain officers may have tampered with evidence and committed acts of



      *
        This order and judgment is not binding precedent except under the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.
perjury in other cases. The motion was denied by the district court. He then filed

a request for a certificate of appealabilty (COA) w ith the district court. See id.

§ 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). The district

court has not ruled on the request and it is deemed denied. See 10th Cir. R.

22.1(C). He filed a notice of appeal on July 19, 2006, and requests that we grant

a COA . W e deny a COA and dismiss the appeal.

      Topeka law-enforcement officers responded to a security alarm at

M r. Dighera’s home on December 10, 1996. After entering the home and

discovering drug paraphernalia, they obtained a search warrant. Officers Randy

Listrom and Bruce Voigt, who had been trained to evaluate the dangers of

methamphetamine labs, put on protective clothing and equipment and conducted a

sweep of the home. They then informed the other officers that it was safe to enter

the home. The officers discovered 300 grams of methamphetamine.

M r. Dighera’s conviction and sentence were upheld in United States v. Dighera,

185 F.3d 875 (10th Cir. 1999) (unpublished table decision).

      M r. Dighera alleges (though there is no evidence in the record before us to

support his allegations) that in October 2005— long after his conviction— certain

Topeka law-enforcement officers, including Officer Bruce Voigt, were charged

with various crimes involving dishonest practices in collecting evidence against

suspects. These charges were ultimately dismissed. But M r. Dighera contended

before the district court that the allegations against these officers supported a

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claim that his constitutional rights had been violated under Brady v. M aryland,

373 U.S. 83 (1963) (prosecution must disclose exculpatory evidence to defendant

before trial).

       M r. Dighera’s appellate counsel, Stephen W . Kessler, has filed a motion to

withdraw as appellate counsel because his client lacks a meritorious argument.

See Anders v. California, 386 U.S. 738 (1967) (court may grant counsel’s motion

to withdraw after counsel files brief exploring possible avenues of appeal and

demonstrating that all lack merit). M r. Dighera has not responded by filing a pro

se brief. The government has declined to file a brief.

       A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. On appeal of the denial of a § 2255 motion, we review

the district court’s legal conclusions de novo and its findings of fact for clear

error. See United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006)




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      M r. D ighera contends that the prosecution knew or should have known

about the Topeka law -enforcement officers’ alleged misconduct and that its

failure to disclose such information before trial violated his rights under Brady.

“To establish a violation of Brady . . . , a defendant must demonstrate (1) the

prosecution suppressed evidence, (2) the evidence was favorable to defendant,

and (3) the evidence was material.” United States v. Quintanilla, 193 F.3d 1139,

1149 (10th Cir. 1999). The district court properly reasoned, however, that the

report of misconduct by the Topeka police, even if its contents were credited

entirely, would “[a]t best . . . provide[] some impeachment evidence which is

insufficient for relief under § 2255.” R. Vol. One Doc. 91 at 9. As the Supreme

Court stated in United States v. Ruiz, 536 U.S. 622, 633 (2002), “[T]he

Constitution does not require the Government to disclose material impeachment

evidence prior to entering a plea agreement with a criminal defendant.” The

district court’s ruling could not be debated by reasonable jurists. Because the

record and briefs reveal no nonfrivolous issue, M r. Dighera is not entitled to

relief, and his counsel is entitled to withdraw.

      W e DENY M r. Dighera’s application for a COA, DISM ISS the appeal, and

GRANT the motion of M r. Kessler to withdraw as appellate counsel.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge

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