                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 15 2004
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,                            No. 04-4138
 v.                                          (D.C. Nos. 2:03-CV-888-DAK and
                                                    2:01-CR-491-DAK)
 DAVID WILLIAM PEER,                                      (D. Utah)

       Defendant - Appellant.


                                     ORDER


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      David William Peer (“Defendant”), a federal prisoner appearing pro se and

in forma pauperis, seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his Motion to Vacate, Set Aside, or Correct Sentence,

which was brought pursuant to 28 U.S.C. § 2255 (2000). For the reasons stated

below, we DENY COA and DISMISS the appeal.



                                BACKGROUND

      On March 13, 2002, Defendant pled guilty to one count of receipt and

distribution of child pornography. The district court sentenced Defendant to 51

months in custody, followed by 36 months of supervised release. Defendant
apparently did not file a direct appeal. On October 8, 2003, Defendant filed the

instant Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. §

2255. In his motion, Defendant alleged ineffective of counsel 1 and a due process

challenge to his guilty plea.

      After ordering briefing from the Government, the district court denied the §

2255 motion. On appeal, Defendant has chosen not to pursue his due process

claim, focusing instead on the ineffective assistance of counsel claim. Defendant

argues to this court that his attorney was ineffective for two reasons: (1) failure to

challenge a sentencing enhancement on the grounds that Defendant did not have

the requisite intent; and (2) failure to challenge the constitutionality of

Defendant’s sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and

Blakely v. Washington , 542 U.S. ___, 124 S. Ct. 2531 (2004)     .2




      1
       Specifically, Defendant asserted three grounds for ineffective assistance of
counsel in the proceedings below: (1) counsel’s failure to present certain statutes
that would have prevented sentencing enhancements; (2) counsel’s failure to
present case law and refer back to expert witness testimony during sentencing;
and (3) counsel’s failure to explain the nature of the criminal accusation and
provide effective advice.
      2
       In a supplemental filing to this court, Defendant also argues that the
government brief in response to his § 2255 motion was not timely filed and thus
should have been struck. (Br. on Appeal at 2-5.) While it is true that the
Government’s brief was not filed by the court-imposed deadline, the district court
chose to consider the document when ruling on the § 2255 motion. Seeing no
abuse of discretion, we decline to consider the matter further.

                                         -2-
                                    DISCUSSION

      Under 28 U.S.C. § 2253(c)(1), this court lacks jurisdiction to consider the

merits of Defendant’s appeal unless he first obtains a COA. In the instant case,

Defendant seeks a COA from this court because the district court denied his

request to appeal its decision. 3 See Fed. R. App. P. 22(b)(1). To prevail,

Defendant must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This is accomplished by establishing that

“reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 483-484 (2000) (quotations omitted).

      We hold that Defendant has failed to meet the Slack standard with regard to

any of the issues on appeal. In order to assert an ineffective assistance of counsel

claim, Defendant must set forth specific “performance” errors on the part of trial

counsel and demonstrate “prejudice,”     i.e. , a “reasonable probability” that, absent

those errors, a different outcome would occur.     Strickland v. Washington , 466

U.S. 668, 688 (1984).




      3
       Defendant applied for a COA below, but the district court took no action
on the application. Under these circumstances, COA is deemed denied. See 10th
Circuit General Order of October 1, 1996.

                                          -3-
      At the outset, we note that Defendant’s Strickland claim regarding

counsel’s failure to raise an Apprendi or Blakely-type argument has been waived

because it was not raised in the original § 2255 motion or in a subsequent motion

for reconsideration. See In re Walker, 959 F.2d 894, 896 (10th Cir. 1992). In any

event, on the record it does not appear that trial counsel was acting in a

constitutionally ineffective manner by failing to make either an Apprendi

argument or the equivalent of a Blakely-type argument at sentencing.

Accordingly, we will not consider the issue.

      Defendant also claims that counsel failed to challenge a sentencing

guideline on the grounds that Defendant did not have the requisite intent.

Specifically, Defendant argues that counsel should have objected to the court’s

imposition of a four-level enhancement for offenses involving sadistic,

masochistic, or violent material because Defendant never intended to receive or

distribute these images.

      This claim fails for two reasons: First, Defendant has failed to demonstrate

an error that satisfies the first prong of the Strickland analysis. Counsel raised

arguments regarding intent through a motion for downward departure, which the

court ultimately denied. Counsel’s failure to raise a duplicative objection to the

enhancement does not render his legal assistance to Defendant ineffective.

Second, Defendant has failed to show prejudice. Since the district court rejected


                                         -4-
the motion for downward departure based on lack of intent, there is no reasonable

probability that it would have sustained an objection to the sentencing

enhancement on exactly the same grounds.

      Having carefully considered each of the arguments before the court, we

remain unconvinced that reasonable jurists could debate that Defendant’s § 2255

motion should have been resolved differently. See Slack, 529 U.S. 483-44.

Accordingly, we DENY COA and DISMISS the appeal.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        -5-
