                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                              July 19, 2010

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                              No. 10-2022
 v.
                                                       (1:05-CV-00761-LH-RHS)
                                                               (D. N.M.)
 JAMES EARL MERIDYTH,

           Defendant-Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.

       James Earl Meridyth, a federal prisoner, seeks a certificate of appealability

(“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2255 habeas petition.1

Meridyth’s petition challenges his 2001 conviction on a number of drug-trafficking

charges on the grounds that he was incompetent during trial and that his trial counsel was

ineffective for failing to investigate his competency. For substantially the reasons stated

by the district court, we deny a COA and dismiss the appeal.

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
        We construe Meridyth’s Notice of Appeal as an application for a COA. See Fed.
R. App. P. 22(b)(2).
                                              I

       In 2001, Meridyth was tried before a jury and convicted on three counts of drug

trafficking. His trial counsel did not investigate Meridyth’s competency to stand trial or

raise concerns regarding Meridyth’s competency to the trial judge.

       After securing new counsel, Meridyth moved to stay sentencing. The district court

determined he was incompetent, and he was committed for treatment and evaluation.

Following a second evaluation, Meridyth was declared competent to proceed to

sentencing, and sentence was imposed. We affirmed his conviction on direct appeal.

United States v. Meridyth, 364 F.3d 1181, 1185 (10th Cir. 2004). Meridyth’s

competency at trial and the effectiveness of trial counsel were not raised. See id. at 1181.

       Meridyth then filed a petition for habeas corpus pursuant to § 2255. After a series

of delays, a magistrate judge ordered an evidentiary hearing to consider whether

Meridyth and his now-ex-wife timely informed trial counsel that they wished Meridyth’s

mental health to be evaluated. At the hearing, Meridyth and his sister testified that trial

counsel had known Meridyth was mentally ill before and during trial. In turn, trial

counsel testified that Meridyth had appeared rational and that counsel had had no reason

to believe Meridyth incompetent before or during trial. During this testimony, Meridyth

objected to certain lines of questioning on the ground that they went beyond the scope of

the hearing, but the magistrate overruled these objections. The magistrate similarly

denied Meridyth’s motion to strike statements he contended were beyond the scope of the

hearing.



                                             2-
       After the hearing, the magistrate issued a report and recommendation concluding

that Meridyth was not entitled to habeas relief, based in part on factual findings that: (1)

Meridyth was not credible when he testified that he suffered from mental illness of which

his counsel was aware; and (2) trial counsel’s testimony that Meridyth appeared rational

was credible and supported by the record. Over objection by Meridyth, the district court

adopted the magistrate’s report and dismissed the petition. The district court also denied

Meridyth’s subsequent application for a COA.

                                              II

       A petitioner may not appeal the denial of relief under § 2255 without a COA.

§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). This requires Meridyth to

show “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).

       Meridyth first argues that the magistrate erred in determining that his testimony

was not credible, while trial counsel’s testimony was credible and supported by the

record. We review a district court’s factual findings for clear error. Clark v. Oklahoma,

468 F.3d 711, 714 (10th Cir. 2006). The magistrate considered the record as a whole in

reaching his legal and factual conclusions. Substantial evidence suggests that Meridyth

fabricated his claims of mental illness in pursuit of legal advantage. In light of this

evidence, reasonable jurists could not conclude that the district court clearly erred in

                                              3-
disbelieving Meridyth’s assertions that he was mentally ill and had informed trial counsel

nor in crediting trial counsel’s testimony to the contrary. Meridyth’s contention that his

visible head scar would cause any capable counsel to investigate competency is without

merit: Counsel testified that Meridyth affirmatively demonstrated competency by being

rationally involved in his own defense.

       Finally, Meridyth contends that the district court erred by failing to strike portions

of the transcript of the evidentiary hearing that allegedly exceeded the hearing’s scope.

We decline to consider this issue because Meridyth failed to specifically present it to the

district court in his objection to the magistrate’s report and recommendation. See

Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (“This court has

adopted a firm waiver rule under which a party who fails to make a timely objection to

the magistrate judge’s findings and recommendations waives appellate review of both

factual and legal questions.”).

                                             III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




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