                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               JAN 30 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                           No. 97-2255
 v.                                                  (D.C. No. CR-95-201-JP)
                                                            (D. N.M.)
 GARY MADEN,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Gary Maden appeals the order of the district court dismissing his motion to

vacate, set aside, or correct sentence under 28 U.S.C. § 2255. We deny Maden a

certificate of appealability and dismiss the appeal.


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
      Pursuant to a plea agreement, Maden pleaded guilty to possession with

intent to distribute more than fifty grams of cocaine base. He was sentenced to

120 months’ imprisonment with five years’ supervised release. No direct appeal

was filed. In his § 2255 before the district court, Maden contended (1) the

government did not prove at sentencing that the substance possessed was “crack,”

(2) he should have received a sentence reduction for acceptance of responsibility,

and (3) his plea was not voluntary because he was under the impression he was

pleading guilty to possession of cocaine powder, not “crack” cocaine. The

government argued Maden’s claims were procedurally defaulted because the

claims should have been raised on direct appeal. Maden asserted his procedural

default was caused by ineffective assistance of counsel and that his defense was

prejudiced by counsel’s deficient performance. Maden also asserted, as further

excuse for his procedural default, the government submitted false information to

the grand jury. Maden argued a fundamental miscarriage of justice would occur if

the court did not review his § 2255 motion. The magistrate judge found Maden

had failed to demonstrate a fundamental miscarriage of justice and found the

motion was procedurally defaulted. The district court adopted the magistrate’s

findings and dismissed the motion.

      On appeal, Maden contends he was denied effective assistance of counsel

and he is serving an illegal sentence. He argues a lab report identified the


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substance he possessed as cocaine but did not specify whether it was cocaine base

or cocaine powder, and that counsel was ineffective in failing to investigate the

nature of the substance and in failing to challenge application of the harsher

guidelines sentence for cocaine base. The magistrate found that although the lab

report did not specify the substance was cocaine base, other evidence, including

Maden’s own statement to the court, established it was cocaine base. Maden has

not shown that this finding was erroneous. We agree with the magistrate and the

district court that Maden has failed to show counsel’s alleged failure to follow up

on any ambiguity in the lab report prejudiced him at sentencing.

      Maden has not established a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984). We conclude Maden has

failed to make a substantial showing of the denial of a constitutional right

required for issuance of a certificate of appealability under 28 U.S.C. §

2253(c)(2).

      We DENY Maden a certificate of appealability and DISMISS the appeal.

The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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