                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                       No. 04-6111
       v.                                      Western District of Oklahoma
                                              (D.C. Nos. 02-CV-1764-T and
                                                      99-CR-42-T)
 LOY CHRIS STEVENS,

             Defendant-Appellant.


                                    ORDER
                             Filed February 21, 2006


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Appellant’s petition for rehearing is granted for the purposes of modifying

the order of December 13, 2005. The modified order is attached and filed nunc

pro tunc.



                                     Entered for the Court
                                     Elisabeth A. Shumaker, Clerk of Court


                                     By:
                                            Deputy Clerk
                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      December 13, 2005
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                       04-6111
                                                Western District of Oklahoma
 LOY CHRIS STEVENS,                            (D.C. Nos. 02-CV-1764-T and
                                                       99-CR-42-T)
              Defendant-Appellant.



                                     ORDER *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Loy Chris Stevens, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B). Because we conclude that Mr. Stevens has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   I. Background

      Mr. Stevens was convicted by a jury in United States District Court on

fourteen counts of violations of federal law relating primarily to illegal possession

of firearms and drugs. He was sentenced to life imprisonment on November 3,

2000. An amended notice of appeal was filed with this Court on November 21,

2000. On March 20, 2001, we granted Mr. Stevens’s motion to proceed pro se on

appeal and allowed his court appointed attorney to withdraw. After several stays

and continuances, we set November 26, 2001, as the deadline for Mr. Stevens to

file his opening brief. Having missed this deadline, Mr. Stevens’s direct appeal

was procedurally terminated. Over a year later, on January 13, 2003, we received

Mr. Stevens’s opening brief and construed it as a motion to reinstate his appeal,

which we subsequently denied. Shortly thereafter, we similarly denied Mr.

Stevens’s petition for rehearing en banc.

      Mr. Stevens then petitioned for habeas corpus relief under 28 U.S.C. §

2255, seeking to vacate his sentence for violation of his constitutional rights.

Because Mr. Stevens filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), his petition is

subject to its provisions. See McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir.

2001). The district court denied Mr. Stevens’s petition. After the district court

denied Mr. Stevens’s COA application, he filed an application for a COA with


                                            -2-
this Court on June 18, 2004. His brief identified numerous alleged constitutional

violations relating to ineffective assistance of counsel, due process, and double

jeopardy.

      In order to appeal the denial of his § 2255 petition, Mr. Stevens must obtain

a COA, which will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires that an applicant establish 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)

(internal citations and quotation marks omitted).

                                   II. Discussion

A. Ineffective Assistance of Counsel

      The majority of Mr. Stevens’s claims relate to various incidents which he

alleges deprived him of his Sixth Amendment right to effective assistance of

counsel. We review a habeas petitioner’s claims of ineffective assistance of

counsel de novo. Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002). In

order to prevail on an claim of ineffective assistance of counsel, an appellant

must show that his attorney’s performance “‘fell below an objective standard of

reasonableness’ and that the unreasonably deficient performance resulted in


                                          -3-
prejudice.” Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting

Strickland v. Washington, 466 U.S. 668 (1984)). Prejudice is shown when an

appellant establishes “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “If we determine [appellant] has failed to prove

prejudice, we need not determine whether counsel’s performance was

constitutionally deficient.” Lucero, 133 F.3d at 1323 (citing Strickland, 466 U.S.

at 697).

      We conclude that none of Mr. Stevens’s claims of ineffective assistance of

counsel have merit. We note in passing that although Mr. Stevens raised an

argument below that his attorney was deficient for failing to object to certain

aspects of the jury form, he appears to have abandoned this claim on appeal.

Therefore, we do not consider it. We turn first to those where he fails to

demonstrate prejudice.

      1.     Failure to demonstrate prejudice

      We reject a number of Mr. Stevens’s ineffective assistance claims because

he fails to identify the prejudice that he suffered. These claims include the failure

to move for Judge Miles-LaGrange to recuse herself; the failure to object to

government misconduct; the failure to (1) subpoena certain witnesses, (2) call

himself as a witness, (3) properly investigate certain testimony, and (4) raise a

                                          -4-
Bruton objection when the trial court admitted a statement by a nontestifying co-

defendant, see Bruton v. United States, 391 U.S. 123 (1968); the failure to object

to the trial court’s allowance of a late motion in limine; and the failure to brief

and argue the district court’s denial of a severance motion on appeal.

      Although Mr. Stevens alleges ineffective assistance of counsel in

connection with each of these claims, he fails to identify any prejudice that he

suffered as a result of his attorney’s failure to take the requested action. Because

he has failed to demonstrate with reasonable probability that the result of the

proceeding would have been different had his attorney performed the actions

complained of, see Strickland, 466 U.S. at 694, we reject each of these claims of

ineffective assistance of counsel.

      2.     Counsel was not ineffective

      We turn next to those claims of ineffective assistance of counsel that we

reject because we conclude that Mr. Stevens’s attorney was not ineffective for

failing to take the action described in the complaint. These claims relate to his

attorney’s failure to object to convictions for multiple firearms and narcotics

violations, the classification of methamphetamine as a Schedule II drug, his

prosecution under 18 U.S.C. § 922(g), and the use of 1998 sentencing guidelines.

                 a.    Convictions for multiple firearms and narcotics violations



                                           -5-
        Mr. Stevens alleges that he was denied effective assistance of counsel when

he was prosecuted and cumulatively sentenced for what he characterizes as a

“Single Firearms Violation.” App. Br. 16-C. He argues that, because the district

court considered his crimes to be continuous and related for sentencing purposes,

it was a violation of double jeopardy to punish him for the individual crimes. In

support of his argument, Mr. Stevens cites this Court’s decision in United States

v. Parra, 2 F.3d 1058, 1070–71 (10th Cir. 1993), which held that a defendant

could not be convicted for multiple counts of possession of a firearm during a

single drug trafficking offense because he possessed more than one firearm at the

time.

        Mr. Stevens’s reliance on Parra is misplaced. Unlike the defendant in

Parra, Mr. Stevens was convicted of possession of a firearm during different drug

trafficking offenses. The district court noted that the Second Superseding

Indictment charged Mr. Stevens with possession of a .22 caliber semi-automatic

on or about December 7, 1995, a 12 gauge shotgun on December 21, 1995, and a

.380 caliber pistol on or about August 27, 1997. Because each of these counts

was based on a separate incident of criminal conduct, Mr. Stevens’s counsel was

not ineffective for failing to object to the convictions as a violation of double

jeopardy.




                                          -6-
      Mr. Stevens also contends that he was denied effective assistance of

counsel in connection with charges on six separate counts under three federal

statutes for narcotics violations. He argues that the district court erred in

considering this conduct as separate offenses when it also determined that the

conduct was continuous and related for sentencing purposes. We are aware of no

reason his counsel should have objected to his conviction and sentencing on these

multiple narcotics counts. Although Mr. Stevens relies on Rutledge v. United

States, 517 U.S. 292 (1996), Blockburger v. United States, 284 U.S. 299 (1932),

and United States v. Gore, 154 F.3d 34 (2d Cir. 1998), these cases do not support

his argument. None of the cited authorities, whether considered individually or

collectively, stands for the proposition that a defendant may not be convicted for

separate incidents of criminal conduct where the conduct is considered continuous

and related for purposes of applying the sentencing guidelines. Whether crimes

are separate incidents for purposes of double jeopardy is a different question from

whether they are continuous and related for purposes of application of the

guidelines.

                 b.    Classification of methamphetamine as a Schedule II drug

      Mr. Stevens argues that he was denied effective assistance of counsel when

his attorney failed to object to his sentence that considered methamphetamine a

Schedule II drug, instead of a Schedule III drug. As the district court properly


                                          -7-
noted, however, this argument is directly foreclosed by our decision in United

States v. Zamora, 784 F.2d 1025, 1029–30 (10th Cir. 1986), in which we held that

methamphetamine was properly reclassified as a Schedule II drug. Consequently,

Mr. Stevens’s counsel was not deficient for failing to object to the sentencing

considering methamphetamine as a Schedule II drug and there was no ineffective

assistance of counsel. This panel has no authority to revisit the Court’s holding

in Zamora.

                 c.    Prosecution under 18 U.S.C. § 922(g)

      Mr. Stevens also claims that his attorney should have objected to his

prosecution under 18 U.S.C. § 922(g) because Oklahoma state law allowed his

lawful possession of the firearm and because the shotgun in question was an

antique and therefore not subject to § 922(g). Regarding Mr. Stevens’s first

point, the district court correctly quoted our holding in United States v. Fisher, 38

F.3d 1144, 1147 (10th Cir. 1994), that a “defendant can properly be convicted for

possession of ammunition [or a shotgun] under § 922(g)(1), regardless of whether

that same possession is prohibited under the state’s law.” Therefore, counsel was

not ineffective for failing to raise this argument.

      As to his second point, the district court found that there is no “antiquity”

exception to § 922(g)(1), but that even if there was such an exception, Mr.

Stevens failed to support his statement that the shotgun is an antique. Contrary to

                                          -8-
the district court’s finding, section 922(g)(1) does not include antique shotguns.

See United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995). The statute

defines firearm as

      (A) any weapon (including a starter gun) which will or is designed to
      or may readily be converted to expel a projectile by the action of an
      explosive; (B) the frame or receiver of any such weapon; (C) any
      firearm muffler or firearm silencer; or (D) any destructive device.
      Such term does not include an antique firearm.


18 U.S.C.§ 921(a)(3) (emphasis added). Any firearm manufactured in or before

1898 is an antique firearm under the statute. Id. § 921(a)(16)(A). Accordingly,

Mr. Stevens could not have been prosecuted under § 922(g)(1) if he was in

possession of an antique shotgun.

      However, Mr. Stevens has offered no evidence that the 12 gauge pump-

action shotgun that he was charged with possessing was, in fact, manufactured in

or before 1898. It is true that a western style Winchester Model 1894 rifle, which

was seized during the investigation, was introduced into evidence at trial. It was

identified as Government Exhibit 21.3. But this was not the same weapon as the

12 gauge pump-action shotgun Mr. Stevens was charged with possessing, which

was introduced at trial as Government Exhibit 12. Three witnesses testified about

this shotgun, and nothing in their testimony supports an inference that it was an

antique. Agent Delbert Knopp, who also was responsible for seizing the 1894

Winchester, testified that he found the 12 gauge shotgun in Mr. Stevens’s home.

                                         -9-
Agent James S. Allison testified that Mr. Stevens initially told him that the

shotgun “did not belong to him; that it, in fact, belonged to his [now ex-]wife’s

mother.” R. Vol. III, p. 292. Finally, Jeanne Burns, Mr. Stevens’s ex-wife,

testified that the shotgun was not originally her mother’s, that the gun was “old,”

but that it was never treated like an heirloom. Moreover, defense counsel’s cross-

examination of Agent Knopp made clear that the 1894 Winchester was relevant

only to his co-defendants and had nothing to do with Mr. Stevens or his alleged

crimes. Accordingly, Mr. Stevens has failed to present any evidence that his

shotgun was an antique and therefore exempt from prosecution under § 922(g)(1).

Counsel was therefore not ineffective in failing to raise the antiquity exception.

                 d.    Use of the 1998 sentencing guidelines

      Finally, we consider Mr. Stevens’s claim that he was denied effective

assistance of counsel when his attorney failed to object to his sentencing under

the 1998 revision of the United States Sentencing Guidelines instead of the 1995

version. The conduct that gave rise to the first count on which Mr. Stevens was

convicted occurred in December 1995, while the conduct giving rise to the last

count did not occur until January 1999. Mr. Stevens alleges that the application

of the 1998 guidelines to pre-1998 criminal conduct was a violation of the Ex

Post Facto Clause and should have been objected to by counsel.




                                         -10-
      Relying on our decision in United States v. Sullivan, 255 F.3d 1256 (10th

Cir. 2001), the district court determined that Mr. Stevens’s conduct was

continuous from December 1995 until January 1999, and therefore the application

of the 1998 guidelines to all of the counts was proper. In Sullivan, we rejected a

similar ex post facto challenge to the sentencing guidelines where the defendant

had committed tax offenses over a period of several years. Sullivan, 255 F.3d at

1262-63. We concluded that the defendant’s offenses were in the “same course of

conduct” and therefore were properly sentenced under the most recent revision of

the sentencing guidelines. Id. at 1263.

      “We review de novo questions of law regarding application of the

sentencing guidelines, and review for clear error the district court’s factual

findings, mindful of our obligation to give due deference to the district court’s

application of the guidelines to the facts.” United States v. Spencer, 178 F.3d

1365, 1367 (10th Cir. 1999) (internal quotation marks and citations omitted).

Although Mr. Stevens disagrees with the district court’s factual determination that

his conduct was continuous for the purposes of application of the sentencing

guidelines, he offers no support for his position other than the conclusory

assertion that his conduct was not continuous or related. Because the district

court’s determination was not clearly erroneous, we conclude that Mr. Stevens




                                          -11-
was properly sentenced under the 1998 Guidelines and his counsel was not

deficient for failing to raise an objection.

      3. Action complained of was taken by counsel

      We next address those claims of ineffective assistance of counsel that we

conclude are barred because Mr. Stevens’s counsel took the action specified in

the complaint. Mr. Stevens alleges that the admission of evidence seized from the

addresses of 2107 and 2106 S. West 14th Street, and later determined by an

Oklahoma state court to have been illegally seized, should have been objected to

by his attorney. As the trial court noted, however, the record indicates that an

objection to the admission of the evidence was lodged on behalf of Mr. Stevens

by his attorney. Because the action complained of was taken by his attorney, we

conclude that Mr. Stevens’s counsel was not deficient.

      Mr. Stevens also argues that he was denied effective assistance of counsel

when his attorney failed to object to “double counting” during Mr. Stevens’s

sentencing. He argues that he was sentenced under 18 U.S.C. § 924(c), which

includes possession of a firearm as an element of the crime, and then given a two-

point enhancement under section 2D1.1(b)(1) of the United States Sentencing

Guidelines for possession of a dangerous weapon. The district court, however,

noted that an objection to the enhancement was lodged on behalf of Mr. Stevens.

Thus, his attorney was not deficient in this regard.

                                          -12-
B. Procedurally barred claims not raised on direct appeal

      We next address those claims by Mr. Stevens that the trial court found to be

procedurally barred for not having been raised on direct appeal. Failure to raise

an issue on direct appeal precludes a defendant from later raising the issue in a §

2255 motion unless the defendant “can show cause excusing [the] procedural

default and actual prejudice resulting from the errors of which [the defendant]

complains, or can show that a fundamental miscarriage of justice will occur if

[the] claim is not addressed.” United States v. Cook, 997 F.2d 1312, 1320 (10th

Cir. 1993); see also United States v. Frady, 456 U.S. 152, 165 (1982) (“[W]e

have long and consistently affirmed that a collateral challenge may not do service

for an appeal.”).

      Mr. Stevens argues that the district court improperly dismissed as

procedurally barred his double jeopardy, due process, and government misconduct

claims. In liberally construing his brief, we discern only one reason Mr. Stevens

has asserted for excusing his procedural default: this Court’s dismissal of his

appeal. However, “existence of cause for a procedural default must ordinarily

turn on whether the prisoner can show that some objective factor external to the

defense impeded counsel’s efforts to comply with the . . . procedural rule.”

Murray v. Carrier, 477 U.S. 478, 488 (1986) (explaining that examples of cause

include situations where the factual or legal basis for a claim was unavailable to


                                         -13-
counsel or where interference by officials made compliance with the rule

impossible). As the Supreme Court has stated, “[s]o long as a defendant is

represented by counsel whose performance is not constitutionally ineffective

under the standard established in Strickland v. Washington, . . . we discern no

inequity in requiring him to bear the risk of attorney error that results in a

procedural default.” Id.

      Mr. Stevens has not shown cause for excusing his procedural default.

Despite his numerous claims of ineffective assistance of counsel, his brief is

devoid of any claim that counsel was ineffective by failing to timely file an

appeal. Even if he had raised such a claim, it would necessarily fail because

appellate counsel’s error in filing the notice of appeal one day late did not

prejudice Mr. Stevens, as this Court nonetheless agreed to hear his appeal. Nor

has Mr. Stevens attempted to explain his failure to timely file his opening brief.

Because he was appearing pro se at the time his brief was due, Mr. Stevens’s

failure to meet the filing deadline cannot be attributed to ineffective assistance of

counsel. Thus, in the absence of additional information demonstrating that

external factors caused his procedural default, Mr. Stevens has failed to show

cause sufficient to excuse the default. Accordingly, we conclude that the double

jeopardy, due process, and government misconduct claims raised by Mr. Stevens

are procedurally barred. Additionally, Mr. Stevens argues that the District Court


                                          -14-
erred in considering his double jeopardy claims as substantive and therefore

barred. He asserts that the district court should have considered the claims to

have been couched in terms of ineffective assistance of counsel and, accordingly,

should have declined to hold his double jeopardy claims procedurally barred. We

note, however, that the district court did liberally construe his pleadings and

stretched to consider claims of ineffective assistance of counsel even though they

were not explicitly raised. In each instance the district court found, as we have

found, that there was no ineffective assistance of counsel. Thus, even if the

district court had considered the ineffective assistance of counsel claims as an

attempt to show cause to remove the procedural bar, the court’s determination that

Mr. Stevens’s attorney was not ineffective leaves the procedural bar firmly in

place.

C.       District court’s failure to hold an evidentiary hearing

         Finally, Mr. Stevens argues that the district court erred in denying his §

2255 motion without an evidentiary hearing. We review the denial of an

evidentiary hearing in the context of a § 2255 motion for abuse of discretion.

United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992). Mr. Stevens

offers no support for his conclusion that he was entitled to an evidentiary hearing.

Although he cites a number of cases that discuss the circumstances under which a

court should allow an evidentiary hearing, he does not explain how they apply to


                                           -15-
his case or support his argument. We conclude that the district court did not

make a “clear error of judgment or exceed[] the bounds of permissible choice in

the circumstances,” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994), and

reject this claim.




                                  III. Conclusion

      Accordingly, we DENY Loy Chris Stevens’s request for a COA and

DISMISS this appeal. Petitioner’s motion to proceed in forma pauperis is

GRANTED.




                                               Entered for the Court,




                                               Michael W. McConnell
                                               Circuit Judge




                                        -16-
