                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 2 1999
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-3159
                                                    (D.C. No. 97-CV-3152)
    ANTHONY R. GRAYSON,                                    (D. Kan.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT          *




Before BRORBY , EBEL , and LUCERO , Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
      Petitioner Anthony R. Grayson appeals from the           district court’s partial

denial of his motion to vacate, set aside, or correct his sentence, filed pursuant

to 28 U.S.C. § 2255. Petitioner is currently serving a term of incarceration

following conviction on one count of possession of crack cocaine with intent to

distribute, a violation of 21 U.S.C. § 841(a)(1). We have jurisdiction over this

appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Because petitioner’s § 2255

motion was filed after the enactment of the         Antiterrorism and Effective Death

Penalty Act of 1996, the certificate of appealability provision created by that

act is applicable to his case. See 28 U.S.C. § 2253(c)(1)(B). The district court

denied petitioner a certificate of appealability. We have construed petitioner’s

notice of appeal as a renewed request for a certificate of appealability. See

Fed. R. App. P. 22(b)(2). Petitioner must demonstrate “a substantial showing

of the denial of a constitutional right” before this court considers his appeal.

See 28 U.S.C. § 2253(c)(2).

      In his § 2255 motion, petitioner argued to the        district court that his trial

counsel was ineffective because he 1) failed to file a direct appeal on petitioner’s

behalf, 2) failed to investigate and present the testimony of two witnesses,

3) failed to file a suppression motion as to introduction of the cocaine or file

a motion in limine as to the use at trial of a letter found on petitioner’s person at

the time of his arrest, 4) failed to object at sentencing to the computation of his


                                              -2-
criminal history, and 5) failed to object to the type of cocaine used as a basis to

compute his sentence. Petitioner also argued ineffective assistance of counsel

as a result of the cumulative effect of these alleged errors.

       The district court held a hearing on petitioner’s § 2255 motion, at which

petitioner’s trial counsel and the two witnesses in question testified. At that time,

petitioner abandoned his arguments regarding counsel’s failure to file a

suppression motion as to introduction of the cocaine and to object to the type of

cocaine on which his sentence was based. The court granted petitioner relief on

his claim that counsel had failed to perfect a timely direct appeal on his behalf.

The court ruled that it would resentence petitioner, at which proceeding petitioner

could challenge the computation of his criminal history. Upon resentencing,

petitioner would be able to take a timely direct appeal.    See Rec. Vol. I, tab 58

(District Court’s Memorandum and Order), at 5. The court also ruled that

petitioner’s arguments about introduction of the letter at trial could be heard

on direct appeal.   See id. at 13.

       The district court concluded that counsel’s failure to interview the two

witnesses was a reasonable decision in light of uncontroverted testimony that

petitioner had told counsel the witnesses could add nothing to his defense.

Therefore, the court ruled that the decision not to interview was trial strategy and

did not constitute ineffective assistance.    See id. at 9. Additionally, based on the


                                             -3-
witnesses’ testimony at the § 2255 motion hearing, the court held that no

prejudice resulted from counsel’s decision not to interview the witnesses.

See id. at 10-11.

       On appeal, petitioner reargues three of the points of alleged ineffective

assistance of counsel raised to the   district court. Petitioner contends that his trial

counsel was ineffective for failing to perfect a timely direct appeal. This issue is

moot because petitioner was granted relief by the     district court. Petitioner was

resentenced and the record reflects that he perfected a timely direct appeal from

that proceeding. Petitioner also argues that trial counsel was ineffective for

failing to file a motion in limine or otherwise restrict testimony at trial regarding

the letter. However, petitioner fails to acknowledge that the     district court

declined to rule on this issue. We agree with the     district court that the issue can

be raised in petitioner’s direct appeal, and therefore decline to address it here.

See Anixter v. Home-Stake Prod. Co.     , 77 F.3d 1215, 1228 (10th Cir. 1996) (noting

that appellate court will not generally consider issues not passed upon by the

district court).

       Finally, petitioner contends that his counsel was ineffective because he

failed to interview or present the testimony of two witnesses. After review of

the record on appeal and applicable law, we conclude that petitioner has not

demonstrated his eligibility for a certificate of appealability on this issue.


                                            -4-
Therefore, for substantially the same reasons contained in the    district court’s

Memorandum and Order dated April 7, 1998, petitioner’s motion for a certificate

of appealability is DENIED and this appeal is DISMISSED.



                                                        Entered for the Court



                                                        Wade Brorby
                                                        Circuit Judge




                                            -5-
