                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             MAR 24 2000

                                 TENTH CIRCUIT                          PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 99-3027
 v.                                                  (D.C. No. 97-CV-3204)
                                                            (Kansas)
 GEORGE W. TURLEY,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      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 cause is

therefore ordered submitted without oral argument.

      George Turley, a pro se federal prisoner, brought this proceeding under 28

U.S.C. § 2255 asserting three grounds for relief: (1) the sentencing guidelines are

unconstitutional, (2) his trial attorney was ineffective in failing to object to a

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
sentence enhancement for obstruction of justice, and (3) the enhancement was not

supported by clear and convincing evidence or by proper fact findings. While the

motion was pending in district court, Mr. Turley filed two supplemental pleadings

asserting additional grounds for relief.

      The district court ruled that the first and third claims in the initial motion

were procedurally barred by Mr. Turley’s failure to raise them on direct appeal.

See United States v. Turley, 37 F. Supp. 2d 1262, 1264 (D. Kan. 1998). The court

addressed the ineffective assistance claim on the merits and denied it. See id. at

1265. Finally, the court construed the two supplemental pleadings as

unauthorized successive motions under section 2255 and transferred them to this

court under Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). See

Turley, 37 F. Supp. at 1265-66. This court notified Mr. Turley that he had thirty

days in which to file a proper motion for permission to bring successive section

2255 motions and that his failure to do so would result in the denial of

authorization. When Mr. Turley did not respond, the matter was dismissed.

Turley v. United States, No. 99-3002 (10th Cir. Apr. 6, 1999).

      Mr. Turley now appeals, raising four arguments. He first contends the

district court erred by failing to follow USSG § 5G1.3 and in failing to credit him

with time previously served on related counts. He further contends the

government erred in grouping his counts. These claims were first raised in Mr.


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Turley’s supplemental pleadings and were dismissed as unauthorized by this

court. Accordingly, we do not consider them. 1

      Mr. Turley argues that his sentence violated due process because the

enhancement for perjury was not supported by clear and convincing evidence.

The district court held this claim procedurally barred by Mr. Turley’s failure to

raise it in his direct appeal. See Turley, 37 F. Supp. at 1264. “A defendant who

fails to present an issue on direct appeal is barred from raising the issue in a §

2255 motion, unless he can show cause for his procedural default and actual

prejudice resulting from the alleged errors, or can show that a fundamental

miscarriage of justice will occur if his claim is not addressed.” See United States

v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Mr. Turley does not argue on appeal

that the district court erred in applying procedural bar to this claim and we

therefore do not consider it. 2

      Mr. Turley also contends the district erred in applying this enhancement


      1
         In his motion for certificate of appealability filed with this court, Mr.
Turley argues that the district court improperly construed his attempts to amend
his initial motion as successive section 2255 petitions. These arguments come too
late. Mr. Turley was given notice that this court was treating his supplements as
successive motions and had an opportunity to respond and make these arguments
at that time. When he failed to do so the matters were dismissed. They are
therefore no longer before us.
      2
        We note, as did the district court, that this claim would fail on the merits
in any event because this enhancement need be proven only by a preponderance of
the evidence. See United States v. Pelliere, 57 F.3d 936, 938 (10th Cir. 1995).

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because the court’s findings were not adequate and the evidence was insufficient.

Mr. Turley did not raise these issues either at sentencing or in his direct appeal.

In his initial section 2255 motion, Mr. Turley raised them only by asserting that

his counsel was ineffective at sentencing in failing to do so. The district court

addressed the ineffectiveness argument on the merits and rejected it, ruling

counsel had not been ineffective because the presentence report, which the

sentencing court had adopted, detailed the evidence of Mr. Turley’s false trial

testimony and was sufficient to support the enhancement. Mr. Turley does not

assert in this appeal that his trial counsel was ineffective. Because the challenges

Mr. Turley makes to the enhancement itself are otherwise barred by his failure to

raise them on direct appeal, and he has not offered us any argument against the

application of the bar, we do not address these claims on the merits.

      In sum, we conclude that none of Mr. Turley’s claims are before us on the

merits. We deny his motion for a certificate of appealability and dismiss his

appeal.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Chief Judge




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