                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         March 26, 2008
                         UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 07-6125
 GARY ALLEN LOTT,                                         (D.C. No. CR-99-30-T)
                                                         (D.C. No. CV-04-511-T)
           Defendant-Appellant.                             (W.D. Oklahoma)



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



       Gary Lott, a federal prisoner appearing pro se, seeks a certificate of appealability

(COA) pursuant to 28 U.S.C. § 2253(c)(1) in order to challenge the district court’s denial

of his 28 U.S.C. § 2255 motion to vacate, set aside or correct sentence. Because Lott has

failed to satisfy the standards for the issuance of a COA, we deny his request and dismiss

the matter.

                                             I.

       In 1999, Lott was indicted and subsequently convicted of multiple drug and

firearms offenses arising out of his involvement in an Oklahoma City-based conspiracy to


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
manufacture and distribute methamphetamine. Lott was sentenced to life imprisonment.

On direct appeal, this court affirmed Lott’s convictions and sentence. United States v.

Lott, 310 F.3d 1231 (10th Cir. 2002). The United States Supreme Court denied certiorari

review on April 21, 2003. Lott v. United States, 538 U.S. 991 (2003).

       On April 23, 2004, Lott filed a pro se § 2255 motion to vacate, set aside or correct

sentence.1 Lott subsequently filed several additional pleadings, including a memorandum

in support of his motion, a reply to the government’s response to his motion, and a

supplemental brief in support of his motion. The district court, on April 30, 2007, issued

an order denying Lott’s motion in its entirety. In doing so, the district court began by

noting that “[t]he vast majority of issues listed in” Lott’s initial motion were

“undeveloped and unsupported by arguments or references to the record.” Dist. Ct. Order

at 3. With respect to those issues, the district court summarily denied them. Id. The

district court also concluded that three of the issues asserted for the first time in Lott’s

reply brief were procedurally barred because they could have been raised on direct

appeal.2 Id. at 4. Continuing, the district court concluded that Lott’s claims of error

       1
          Lott’s motion, which included his declaration under penalty of perjury that he
placed his motion in his prison’s legal mail system on April 14, 2004, was declared by the
district court to have been filed within the one-year statute of limitations for § 2255
motions. See Fed. R. App. P. 4(c)(1) (outlining the “prison mailbox” rule).
       2
          These three issues included: (1) the district court’s treatment, for sentencing
purposes, of the methamphetamine at issue as “actual” or pure, rather than a mixture or
substance containing a detectable amount of methamphetamine; (2) the district court’s
alleged “double-counting” of the methamphetamine attributable to Lott; and (3) the
district court’s allegedly erroneous instructions to the jury on an aiding and abetting
                                                                                   (continued...)

                                               2
based on Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543

U.S. 220 (2005) were foreclosed by the fact that his convictions became final prior to the

issuance of both Blakely and Booker. Dist. Ct. Order at 5. As for Lott’s remaining

claims, all of which raised issues of ineffective assistance of his trial counsel, the district

court addressed and rejected them on the merits. Of note for purposes of this appeal, the

district court rejected Lott’s argument that his trial counsel erred in failing to subpoena

his former girlfriend to testify in his defense, on the grounds that Lott failed to “identify .

. . what favorable evidence (if any) [she] might have provided.” Dist. Ct. Order at 11.

       On May 22, 2007, Lott filed a notice of appeal, which the district court construed

as a request for COA, and a motion for leave to proceed on appeal in forma pauperis. The

district court denied both requests. Lott has now renewed those requests with this court.

                                               II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a federal prisoner may appeal from the denial of a § 2255 motion

only if the district court or this court first issues a COA. 28 U.S.C. § 2253(c)(1). A COA

may be issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). In order to make that showing, a federal prisoner

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


       2
          (...continued)
theory.

                                               3
presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

       In his appellate brief, Lott challenges only the district court’s rejection of his

assertion that defense counsel was ineffective for failing to subpoena his girlfriend and

present her as a witness at trial. According to Lott, his girlfriend provided law

enforcement authorities with what he describes as a “debriefing/statement” regarding his

drug-trafficking activities, and the government at trial used that “debriefing/statement”

“as the foundation of their case . . . .” Aplt. Br. at 8. Lott complains, however, that his

girlfriend was under the influence of methamphetamine at the time she provided the

“debriefing/statement,” and he argues that his defense counsel should have subpoenaed

his girlfriend in order to question her about these matters in front of the jury.

       After examining the materials submitted by Lott, as well as the materials he filed

with the district court in support of his motion, we conclude that Lott has failed to

establish his entitlement to a COA. In particular, it is undisputable that Lott has failed to

identify what, if any, favorable evidence his girlfriend would have provided had she

testified at trial. Thus, as the district court effectively concluded, Lott has failed to

establish any prejudice arising out of defense counsel’s purported failure. See Strickland

v. Washington, 466 U.S. 668, 687 (1984) (requiring defendant to establish that the alleged

deficient performance of counsel resulted in prejudice).




                                               4
     The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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