                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 30, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff – Appellee,                         No. 07-1051
 v.                                            (D.C. Nos. 06-CV-01433-RPM
                                                  and 01-CR-00395-RPM )
 JAM ES FLOYD CLEAVER,                                   (D . Colo.)

          Defendant – Appellant.



                        OR DER DENY ING A CERTIFICATE
                              OF APPEALABILITY


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


      James Cleaver, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255

habeas petition. 1 Cleaver was convicted by a jury in 2003 on four criminal

counts, all stemming from his participation in the destruction of an Internal

Revenue Service field office by fire in M ay 1997. Cleaver’s conviction and

sentence were affirmed by this court on direct appeal. See United States v.


      1
         The Antiterrorism and Effective Death Penalty Act (“AEDPA ”) conditions
Cleaver’s right to appeal under § 2255 on our grant of a COA. 28 U.S.C.
§ 2253(c)(2). A COA may issue only if Cleaver can demonstrate “that reasonable
jurists could debate w hether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented w ere
adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529
U.S. 473, 484 (2000) (quotation omitted).
Cleaver, 163 F. App’x 622 (10th Cir. 2005) (unpublished). For substantially the

same reasons set forth by the district court, we DENY a COA and DISM ISS.

      Although he includes two separate claims in his petition, Cleaver’s

application is properly construed to present a single claim. Cleaver alleges his

appellate counsel was ineffective for failing to raise alleged prosecutorial

misconduct before the grand jury on direct appeal. 2 He contends that the

prosecutor knowingly presented perjured testimony from law enforcement agents

in an effort to secure Cleaver’s indictment. Under the two-part test established by

the Court in Strickland v. W ashington, 466 U.S. 668 (1984), Cleaver must prove

that “counsel’s representation fell below an objective standard of reasonableness”

and that “any deficiencies in counsel’s performance [were] prejudicial to the

defense.” Id. at 688, 692. W e examine such claims with a “strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. W hen appellate counsel’s performance is alleged to have

been constitutionally ineffective, we examine a petitioner’s claim with due

deference to counsel’s prerogative to select the strongest from what may be many

nonfrivolous claims on appeal. See M alicoat v. M ullin, 426 F.3d 1241, 1248-49

(10th Cir. 2005) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).




      2
        Cleaver also claims that the district court abused its discretion by failing
to conduct an evidentiary hearing on appellate counsel’s alleged ineffective
assistance. This argument merely restates Cleaver’s ineffective assistance claim.

                                        -2-
      In reviewing this claim, we are initially faced with ambiguity in the record

as to whether Cleaver properly presented his claim of alleged prosecutorial

misconduct in front of the grand jury before or during trial. If this claim was not

properly preserved on direct appeal, it would have been reviewed for plain error

even if the alleged prosecutorial misconduct implicated the “fundamental

fairness” of the grand jury proceedings. See United States v. Taylor, 798 F.2d

1337, 1340 (10th Cir. 1986) (“A petit jury determination of guilt will not moot

[errors implicating the fundamental fairness of the grand jury proceedings]

because they go beyond the question of whether the grand jury had sufficient

evidence upon which to return an indictment. Accordingly, to the extent they

have been properly preserved, these issues can be raised upon appeal.”); see also

United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (holding

errors raised for the first time on direct appeal are reviewed only for plain error).

Cleaver has provided a copy of a pretrial motion raising at least some of the same

allegations of misconduct before the grand jury as alleged in his § 2255 petition.

Although this evidence has not been properly appended to the record via motion

to supplement the record, we accept for purposes of this application that Cleaver,

who represented himself at trial, preserved the issue of alleged grand jury

misconduct.

      Under these circumstances, we must determine whether the alleged

misconduct is properly characterized as “technical,” such that it only went to the

                                          -3-
grand jury’s determination of probable cause, or whether it “threaten[ed] the

defendant’s right to fundamental fairness in the criminal process.” United States

v. Lopez-Gutierrez, 83 F.3d 1235, 1244 (10th Cir. 1996) (quotation omitted). The

latter type of error includes any “attempt by the government to unfairly sway the

grand jury or a pervasive attempt to charge without cause or to undermine the

defense.” Id. at 1245 (quotation and alterations omitted). Based upon our careful

review of the record, the alleged prosecutorial misconduct, even if taken as true,

is properly characterized as technical. Cleaver’s allegations do not demonstrate

wholesale fabrication by any of the witnesses who testified before the grand jury,

or a conspiracy to sway the grand jury, but rather indicate specific factual

inconsistencies between witnesses’ grand jury testimony, their testimony at trial,

and their statements on various government-produced recordings. In short, the

alleged misconduct could not have rendered the grand jury proceedings

fundamentally unfair, and Cleaver’s claim was thus mooted by his jury conviction

at trial. See id. at 1246. Accordingly, under the Strickland standard, appellate

counsel’s decision not to raise this claim on direct appeal cannot be characterized

as objectively unreasonable.

      Cleaver’s request for a COA is DENIED and his petition is DISM ISSED.

Because we conclude that Cleaver presents a “reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal,” M cIntosh v. U.S.




                                         -4-
Parole C omm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted), we

G R A N T his motion to proceed on appeal in forma pauperis.



                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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