                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 15 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 CHERLYN VALERIE MCCLUNG,

                Petitioner - Appellant,                   No. 00-6360
           v.                                           (W.D. Oklahoma)
 UNITED STATES OF AMERICA,                           (D.C. No. 00-CV-838)

                Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , 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)(2); 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        This order and judgment is not binding precedent, except under the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.
       Cherlyn Valerie McClung, a federal prisoner appearing pro se, filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The district

court dismissed Ms. McClung’s habeas petition, denied a certificate of

appealability (COA), and denied Ms. McClung’s motion to proceed in forma

pauperis (IFP) on appeal. Ms. McClung appeals the dismissal of her petition and

the denial of a COA, and also renews her motion to proceed IFP on appeal. We

have jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that Ms.

McClung has not made a substantial showing of the denial of a constitutional

right, we deny Ms. McClung’s request for a COA. We also deny leave to proceed

IFP, and dismiss this appeal.

       Ms. McClung was charged in a twenty-five count federal indictment with

various drug trafficking offenses, and pled guilty to two counts of traveling

interstate in aid of racketeering. She was sentenced to two consecutive sixty-

month terms of imprisonment. Ms. McClung then appealed to this court, arguing

ineffective assistance of counsel, but we dismissed without prejudice on the

ground that ineffective assistance of counsel claims should ordinarily be raised on

collateral review.   See United States v. McClung , No. 98-6337, 1999 WL 311674

(10th Cir. May 18, 1999) (citing   United States v. Galloway , 56 F.3d 1239, 1242

(10th Cir. 1995) (en banc)).




                                          -2-
       Ms. McClung then filed a § 2255 petition with the district court, raising a

number of issues regarding ineffective assistance of counsel. She alleged that the

sentencing court denied her effective counsel when it denied her counsel’s request

for a continuance of her sentencing proceedings; that her appointed counsel

should have requested a continuance to communicate with her retained counsel

(when her retained counsel rejoined the case); that her counsel should have

reviewed the presentence report with her at an earlier date; that her counsel

should have moved for a downward departure (for various reasons); that her

counsel should have objected to an enhancement for weapons possession; and that

her counsel failed to timely file an appeal. The district court denied relief on all

these claims, finding either that they lacked a basis in fact or that Ms. McClung

had not been prejudiced thereby.     See Rec. doc. 1, at 2-10 (Dist. Ct. Order, filed

Aug. 25, 2000).

       On appeal, Ms. McClung asserts four major categories of error. Two

concern alleged prejudice arising from the failure to grant a continuance, one

concerns counsel’s alleged failure to object to an enhancement, and one concerns

counsel’s alleged failure to timely appeal.         See Aplt’s Br. at 5. Although we will

not act as her advocate, we construe Ms. McClung’s complaint liberally because

she is proceeding pro se.   See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per

curiam).


                                              -3-
      We review a claim of ineffective assistance of counsel de novo.     See United

States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). In order to obtain habeas

relief for ineffective assistance of counsel, “a petitioner must establish both that

his attorney’s representation was deficient and that he was prejudiced by that

deficiency.” James v. Gibson , 211 F.3d 543, 555 (10th Cir. 2000) (citing

Strickland v. Washington , 466 U.S. 668, 687 (1984)). A claim of ineffective

counsel “may be resolved on either performance or prejudice grounds alone.”

United States v. Kennedy , 225 F.3d 1187, 1197 (10th Cir. 2000) (citation

omitted). In order to show prejudice, a petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”     Id. (quoting

Strickland , 466 U.S. at 694). There is a strong presumption that counsel provided

effective assistance, and a § 2255 petitioner has the burden of proof to overcome

that presumption.   Id.

      After reviewing Ms. McClung’s brief and the appellate record, we find that

Ms. McClung has clearly failed to overcome the presumption that her counsel

provided effective assistance. Accordingly, for substantially the same reasons

contained in the district court’s August 25, 2000 Order, we DENY Ms. McClung

a COA, as she has not made the “substantial showing of the denial of a


                                           -4-
constitutional right” required by 28 U.S.C. § 2253(c)(2). We further DENY Ms.

McClung’s motion to proceed in forma pauperis.



                                            Entered for the Court,



                                            Robert H. Henry
                                            Circuit Judge




                                      -5-
