                                                                                   F I L E D
                                                                             United States Court of Appeals
                                                                                     Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                     OCT 22 2004
                                    TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                         Clerk

 JAMES H. GORDON,

                   Petitioner-Appellant,                       No. 04-6157
           v.                                                 W. D. of Okla.
 RON WARD, Director of the                             (D.C. No. CV-03-1351-M)
 Department of Corrections,

                   Respondent-Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY                           *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.                  **




       Petitioner-Appellant James Gordon, a state prisoner appearing pro se, filed

a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C.

§ 2254 (2000). Upon the magistrate judge’s recommendation, the district court

denied Gordon’s petition. The district court also denied Gordon a certificate of



       *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
appealability (COA).       See 28 U.S.C. § 2253(c)(1) (2000) (providing that a

petitioner may not appeal the denial of habeas corpus relief from a state detention

unless he first obtains a COA). Gordon now seeks to appeal the district court’s

ruling. For the reasons that follow, we deny Gordon’s COA and dismiss the

appeal.

                                          Background

       An Oklahoma state court convicted Gordon of larceny of merchandise from

a retailer in violation of Okla. Stat. tit. 21,         § 1731 (1993). Gordon appealed the

conviction and the Oklahoma Court of Criminal Appeals (OCCA) affirmed.

Subsequently, the state district court denied post-conviction relief and the OCCA

upheld the ruling.

       Thereafter Gordon filed the instant          § 2254 petition in federal district court.

In the district court, Gordon claimed: (1) the state trial court erroneously

instructed the jury on flight; (2) the prosecutor impermissibly used a peremptory

challenge on the basis of race; and (3) the trial and appellate attorneys provided

ineffective assistance of counsel. After adopting the Report and Recommendation

of the magistrate judge and rejecting additional grounds put forward by Gordon to

support his ineffective assistance of trial counsel claim, the district court denied

the petition.

                                           Discussion


                                                  -2-
       On appeal and in his application for a COA from us, Gordon now asserts

for the first time that there was insufficient evidence to support his conviction and

that he was denied a fair trial because of comments made by the prosecutor. In

addition, Gordon asserts that the district court applied the wrong law and

incorrectly determined the facts in rejecting his ineffective assistance of counsel

claims. 1

                          The Insufficient Evidence Claim

       Gordon’s first claim is that there was insufficient evidence to support his

conviction based on the value attributed by the trial court to the items he stole.

More particularly, Gordon claims that he was convicted of stealing a comforter

that the testifying Loss-Prevention Officer, Sara Holley, valued at $145, that

Gordon testified that the comforter was valued at $29.99 in the J.C. Penney

catalog prior to the theft, and that aside from the testimony of Holley, there was

no evidence presented at trial that the value of the comforter was $145.

       Generally, a federal appellate court does not consider an issue not raised in

the lower court.   See Hill v. Kansas Gas Serv. Co.   , 323 F.3d 858, 866 (10th Cir.

2003) (“[A]bsent extraordinary circumstances, we do not consider arguments

raised for the first time on appeal.”) (citation omitted). Gordon did not raise his



       1
        Gordon does not appeal the district court’s determination with respect to
his jury instruction and peremptory challenge claims.

                                           -3-
sufficiency of the evidence claim before the district court, nor did he do so in

front of the Oklahoma state courts. Furthermore, he offers no explanation for his

failure to do so. As a result, we decline to reach the merits of the claim.   2



                        The Prosecutorial Misconduct Claim

       Gordon also argues for the first time on appeal that he was denied the right

to a fair trial when the prosecutor “commented about ‘reasonable doubt’

compared to ‘beyond a shadow of a doubt,’ and other improper comments.”

Though Gordon asserted before the district court that the prosecutor behaved

impermissibly in allegedly excluding a potential juror based on race, Gordon did

not argue that the prosecutor’s comments during trial were constitutionally

deficient. Gordon has made no attempt to justify not addressing this argument to

the district court. Therefore we decline to reach the merits of the claim.

                   The Ineffective Assistance of Counsel Claims

       Gordon alleges that the district court erred in denying his ineffective

assistance of trial and appellate counsel claims. Gordon is entitled to a COA on

these claims only upon making a substantial showing of the denial of a



       2
        In addition, we note that Gordon’s assertion contradicts the trial record in
several respects. First, the jury convicted Gordon of larceny with regard to two
dresses, not a comforter. Second, Holley testified that each dress was valued at
$134. Third, Gordon did not testify at trial as to any value reflected in a catalog,
nor did his attorney offer any evidence as to value. Indeed, Gordon did not testify
at all.

                                             -4-
constitutional right.   See 28 U.S.C. § 2253(c)(2) (2000). Gordon can make such a

showing by demonstrating that the issues he seeks to raise are deserving of further

proceedings, debatable among jurists of reason, or subject to different resolution

on appeal. See Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where a district

court has rejected the constitutional claims on the merits, . . . [t]he petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”       Id.

       Gordon has failed to meet this standard for several reasons. Initially,

Gordon’s application for a COA and brief contain nothing more than conclusory

allegations that the district court erred in evaluating his ineffective assistance

claims. Gordon asserts such error, states that the district court applied the

incorrect law and erred in deciding the facts, and provides a citation to   Strickland

v. Washington , 466 U.S. 668 (1984). Though recognizing that we must liberally

construe Gordon’s pro se petition, “we are not required to fashion [Gordon’s]

arguments for him where his allegations are merely conclusory in nature and

without supporting factual averments.”       U.S. v. Fisher , 38 F.3d 1144, 1147 (10th

Cir. 1994) (citation omitted). Gordon’s application for COA and brief provide no

basis for determining what he finds objectionable about the district court’s

determinations as to the matters in question. Therefore, we find the statements




                                             -5-
contained in these filings insufficient to constitute a substantial showing of the

denial of a constitutional right.

      Furthermore, with respect to Gordon’s assertion that his trial counsel

performed ineffectively, we are not persuaded by Gordon’s argument to the

district court that the court’s determination of this issue is debatable. Gordon

asserted that his attorney failed to present evidence that his codefendant, James

Mann, acted alone in the larceny. Adopting the magistrate judge’s

recommendation on the issue, the district court found that Gordon failed to

establish the prejudice prong of the two-part deficient performance and prejudice

test established by Strickland. See 466 U.S. at 687. More particularly, the

district court found that: (1) Gordon’s trial counsel did argue that Mann acted

alone; (2) a notarized statement authored by Mann and eventually submitted to the

district court, which supposedly exonerated Gordon, in fact suggested that the two

men worked together in the larceny; and (3) Mann’s guilty plea implicating

Gordon in the larceny could have been used to impeach Mann had he taken the

stand and testified that Gordon was not involved.

      Gordon also argued that trial counsel’s performance was defective for

failure to make a prima facie showing that the prosecutor exercised his

peremptory challenge based on a prospective juror’s race. The district court




                                          -6-
found Gordon’s conclusory allegations with respect to this claim insufficient to

meet his burden under Strickland. See 466 U.S. at 689-90.

      As Gordon offers no substantive argument as to why these otherwise

permissible findings of the district court are either erroneous or debatable, we

find Gordon has not made a sufficient showing to justify granting a COA.

      Finally, regarding Gordon’s claim to the district court that his appellate

counsel was ineffective, we are similarly convinced that the conclusion reached is

not debatable. Gordon argued to the district court that his appellate counsel was

ineffective because he did not assert that Gordon’s trial counsel was himself

ineffective for failing to present evidence that Mann worked alone. The district

court correctly recognized that where an ineffective assistance of trial counsel

claim is without merit, appellate counsel’s failure to raise trial counsel’s

performance does not constitute ineffective assistance of counsel.    See Miller v.

Mullin , 354 F.3d 1288, 1299 (10th Cir. 2004). Having found satisfactory the

district court’s determination that Gordon’s trial counsel was not ineffective, we

also conclude that the court’s finding that appellate counsel was not defective for

failing to raise trial counsel’s performance is not debatable.

      For the foregoing reasons, we DENY COA and DISMISS the case.

                                                       Entered for the Court

                                                       Timothy M. Tymkovich
                                                       Circuit Judge

                                            -7-
