                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   June 24, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,                      No. 08-4004
                                               (D.C. Nos. 2:06-CV-00642-DB &
    v.                                              2:98-CR-00197-DB-1)
                                                           (D. Utah)
    ERNEST GLENN AMBORT,

                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


         Ernest Glenn Ambort, a federal inmate proceeding pro se, requests a

certificate of appealability (COA) to perfect his appeal from the district court’s

order that denied his motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255. We deny the request and dismiss this appeal.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND

      Ambort and various co-defendants operated Association de Libertas (ADL),

an organization that conducted “constitutional history seminars throughout the

United States.” United States v. Ambort, 405 F.3d 1109, 1113 (10th Cir. 2005)

(quotation omitted).

             The basic precept of the ADL’s seminars was that anyone can,
      for federal income tax purposes, claim to be a “nonresident alien”
      with no domestic-source income. ADL instructors told participants
      that the Fourteenth Amendment changed the definition of citizenship
      so that only non-white residents of the territorial United States were
      actually “residents” for income tax purposes. Thus, Ambort and his
      co-defendants told customers that they were to claim on their income
      tax returns that they were nonresident aliens, regardless of their place
      of birth, and to write “n/a” in the place where the tax forms asked for
      the taxpayer’s social security number. They also told customers that
      they could use IRS Form 1040X to file a corrected return for the
      previous three tax years, assert nonresident status for each year, and
      obtain a full refund of any taxes paid or withheld for that period.

Id. ADL charged a fee for assisting attendees complete tax forms, which included

a percentage of any refund obtained by the attendee. “Ambort was aware that the

ADL position was not accepted law, and that the IRS had rejected it. He was

aware that tax returns submitted by numerous ADL clients had been returned as

frivolous by the IRS and had incurred penalties.” Id.

      The government indicted Ambort, and a jury convicted him, on sixty-nine

counts of aiding and assisting the preparation of false tax returns in violation of

26 U.S.C. § 7206(2), and on one count of conspiring to defraud the United States




                                         -2-
in violation of 18 U.S.C. § 371. After an unsuccessful direct appeal, Ambort

moved the district court for § 2255 relief.

      In the § 2255 motion, Ambort advanced numerous arguments, many of

which are not altogether clear to us. The following five arguments from that

motion appear to be relevant to Ambort’s request for a COA: (1) the trial judge

improperly restricted his good-faith defense; (2) the government failed to prove

that refund claims must have legal support; (3) “the statements [about residency]

were . . . the truthful grounds upon which the [refund] claims were based,” R.,

Doc. 1 at 19; (4) he was misled by Supreme Court precedent, tax statutes, tax

regulations, and tax forms into believing that his actions were lawful; and (5) trial

counsel was ineffective because he would not pursue Ambort’s legal strategies,

such as calling a co-defendant to testify on “the modes and procedures used by

the Crown of England to collect its revenues,” id. at 45.

      The district court summarily denied the motion, stating that “[m]any of . . .

Ambort’s arguments were included or should have been included in his [direct]

appeal,” and that the remainder of his arguments were “entirely without merit.”

R., Doc. 5 at 1. The district court did not grant Ambort a COA.

                                    D ISCUSSION

      The granting of a COA is a jurisdictional prerequisite to appealing the

district court’s denial of a § 2255 motion. United States v. Chiquito, 526 F.3d

1310, 1312 (10th Cir. 2008). A COA may be issued “only if the applicant has

                                          -3-
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “To make the requisite showing, [the applicant] must demonstrate

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

[motion] should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Chiquito,

526 F.3d at 1312 (quotation omitted). To determine whether this standard has

been met, “this court undertakes a preliminary, though not definitive,

consideration of the legal framework applicable to each of [the] claims.” Id.

(quotation and brackets omitted). While the applicant need not establish that the

“appeal will succeed to be entitled to a COA, he must prove something more than

the absence of frivolity or the existence of mere good faith.” Id. (quotation

omitted).

      We conclude that it is not reasonably debatable that the district court erred

in denying Ambort’s § 2255 motion or that Ambort’s issues warrant further

attention. First, Ambort’s arguments concerning his good-faith defense, the need

for a lawful basis in claiming a refund, and the use of “truthful grounds” to obtain

refunds were resolved by this court on direct appeal. See Ambort, 405 F.3d at

1114-17. Consequently, those arguments may not be resurrected in these § 2255

proceedings. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).

      Second, Ambort’s argument about misleading tax laws and forms could

have been, but was not, raised on direct appeal. Ambort apparently seeks to avoid

                                          -4-
the procedural bar that typically arises under these circumstances by asserting that

his appellate counsel was ineffective in omitting this argument from his direct

appeal. See United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) (noting

that a § 2255 movant’s failure to raise arguments on direct appeal imposes a

procedural bar to habeas review unless he can show both good cause and actual

prejudice to his defense, or that failure to consider the argument will result in a

fundamental miscarriage of justice).

      But to establish ineffective assistance, Ambort must show that counsel’s

performance was deficient and that there is a reasonable probability that the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,

694 (1984). We conclude that Ambort’s appellate counsel did not perform

deficiently in failing to raise a patently meritless legal issue. See Cargle v.

Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Specifically, there is nothing in

the federal tax laws and the forms he references that supports his view of the

Fourteenth Amendment or his misrepresentation of nonresident-alien status to

obtain refunds. See Ambort v. United States, 392 F.3d 1138, 1140-41 (10th Cir.

2004) (collecting cases). Consequently, Ambort’s argument about misleading tax

laws and forms is procedurally barred.




                                          -5-
      Finally, we find no merit to Ambort’s claim that trial counsel was

ineffective because he rejected Ambort’s legal strategies. 1 Disagreement over

trial strategy is generally not a basis for ineffective assistance of counsel.

See Strickland, 466 U.S. at 688-89. Moreover, Ambort’s strategies were legally

flawed. In particular, testimony about English revenue-collection procedures

would have been irrelevant, and therefore, inadmissible. See Fed. R. Evid. 402.

                                    C ONCLUSION

      Because Ambort has not “made a substantial showing of the denial of a

constitutional right,” § 2253(c)(2), we DENY his request for a COA and

DISMISS this appeal.

      Ambort’s motion to proceed in forma pauperis is DENIED for lack of a

“reasoned, nonfrivolous argument on the law and facts in support of the issues

raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.

2005). Ambort is ordered to pay the entire appellate filing fee of $455.00

within thirty days of the date of this order.

                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge



1
       The procedural-bar rule does not apply to claims of ineffective assistance
of trial counsel, “whether or not the [defendant] could have raised the claim on
direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).

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