                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            AUG 6 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 02-7014
 v.                                        (D.C. No. CV-01-445-S, CR-99-33-S)
 MALCOLM F. STEPHENS,                                 (E.D. Oklahoma)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the 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 is a pro se federal prisoner 28 U.S.C. § 2255 appeal. Following a jury

trial, Appellant was convicted on one count of attempting to manufacture

methamphetamine in violation of 21 U.S.C. § 846 and was sentenced to 180



      *
       This order and judgment is not binding precedent, except under the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.
months imprisonment. Appellant then filed a motion to vacate, set aside, or

correct his federal sentence with the district court which was denied. On appeal,

Appellant argues his sentence is unconstitutional because he received ineffective

assistance of counsel, because the drug quantity amount was not stated in the

indictment, and because the jury did not find the drug quantity beyond a

reasonable doubt.

      Appellant seeks a certificate of appealability. In order for this court to

grant a certificate of appealability, Appellant must make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Appellant

must demonstrate 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, 484 (2000) (quotations omitted).

      Appellant alleges that his counsel was ineffective because he failed to

contact certain witnesses and because he failed to enter pictures of the crime

scene as evidence. In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court set forth a two-pronged test for judging ineffective assistance of

counsel claims. To warrant relief under this test, a petitioner must show (1) that

his counsel’s performance was constitutionally deficient, and (2) that this

deficient performance prejudiced his defense. Id. at 687. Appellant does not


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meet this test. Contrary to his current assertion, Appellant told the district court

prior to trial that his counsel had secured all of his witnesses. We agree with the

district court that even if counsel had brought the additional witnesses set forth in

Appellant’s complaint, those witnesses could not have refuted his criminal

wrongdoing.

      We also agree with the district court’s determination that counsel’s decision

not to bring pictures of the crime scene into evidence was a “strategic choice” he

made after visiting the crime scene (which counsel swore in an affidavit that he

did), and thus is virtually unchallengeable per Strickland v. Washington, 466 U.S.

668, 691 (1984). Appellant’s complaint fails to show that his counsel was

ineffective or that he was prejudiced by counsel’s failure.

      Appellant also alleges that because the drug amount was not stated in the

indictment nor proven by a jury, Apprendi v. New Jersey, 530 U.S. 466 (2000),

has been violated and his sentence should be overturned. The Supreme Court

held in Apprendi that any fact which increases the punishment for a crime above

the statutory maximum for that crime must be pleaded in the indictment, tried to

the jury, and proved beyond a reasonable doubt. However, as the district court

noted, Appellant’s sentence was less than the statutory maximum for his crime

and thus no Apprendi violation has occurred.

      We have carefully reviewed Mr. Stephens’ brief, the district court’s


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disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or his brief raises an issue which meets our standard for the grant of a certificate

of appealability. We conclude that we cannot say that reasonable jurists could

debate whether “the petition should have been resolved in a different manner.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      For the foregoing reasons, Appellant’s request for a certificate of

appealability is DENIED, and the appeal is DISMISSED. In light of the district

court’s order granting Mr. Stephens’ motion to proceed in forma pauperis on

appeal, his request to this court is moot.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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