                            UNITED STATES CO URT O F APPEALS
                                      TENTH CIRCUIT
                             Byron W hite United States Courthouse
                                       1823 Stout Street
                                   Denver, Colorado 80257
                                        (303) 844-3157
E lisabeth A . Shum aker                                                D oug las E . C ressler
         C lerk                                                         C hief D eputy C lerk


                                         August 16, 2006


        TO :    ALL RECIPIENTS OF THE ORDER

        RE:     06-7013, United States v. Scarborough

              The O rder filed August 4, 2006, contained a clerical error. The Court
        hereby amends the Order and has attached it hereto. The corrected Order is filed
        nunc pro tunc to the original filing date of August 4, 2006.


                                             Sincerely,
                                             Elisabeth A . Shumaker, Clerk of Court


                                              By:
                                                    Deputy Clerk




        encl.
                                                                        F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        August 4, 2006
                               TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AM ERICA,
             Plaintiff-Appellee,                        No. 06-7013
 v.                                              (D.C. No. CIV-05-398-P)
 STA N LEY D A Y NE                                     (E. D. Okla.)
 SCARBOROUGH,
             Defendant-Appellant.



                                     OR DER


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.




      Stanley Dayne Scarborough is a federal prisoner, appearing pro se, seeking

habeas relief pursuant to 28 U.S.C. § 2255. On September 5, 2003, during an

undercover sting in W agoner, Oklahoma, law enforcement officers recovered

76.08 grams of cocaine base, 27.06 grams of cocaine, and more than nine grams

of methamphetamine from M r. Scarborough’s residence. He was indicted by a

federal grand jury on three counts of violating 21 U.S.C. § 841(a)(1). M r.

Scarborough, represented by counsel, pleaded guilty to all three counts. He

subsequently filed a pro se motion to withdraw his plea, which motion was denied

after a hearing. At M r. Scarborough’s sentencing, he objected to the presentence

report’s recommended two-level enhancement for possessing a firearm in relation
to the underlying crime and requested a reduction of sentence for acceptance of

responsibility. The district court denied his motions and sentenced him to 151

months’ imprisonment on each count, with each count to be served concurrently.

M r. Scarborough filed a direct appeal to question whether (1) the district court

abused its discretion by denying the motion to withdraw plea, (2) the district

court committed clear error by finding the firearm enhancement, and (3) the

district court committed clear error by refusing a reduction for acceptance of

responsibility. On appeal, we found that the district court did not abuse its

discretion by denying the motion to withdraw plea, that M r. Scarborough was not

entitled to a reduction for acceptance of responsibility, and that the two-level

enhancement was not plain error. United States v. Scarborough, 134 Fed. Appx.

238 (10th Cir. 2005).

      M r. Scarborough, following his loss on appeal, filed this motion for

resentencing under Blakely v. Washington, 542 U.S. 296 (2004), and claimed

ineffective assistance of counsel.

      Although M r. Scarborough did not make a Blakely objection at sentencing,

he did raise it on direct appeal. W e determined that the district court’s imposition

of the two-level enhancement was plain error, even though Blakely had not been

decided at the time of M r. Scarborough’s sentencing, but we did not find that it

seriously affected his substantial rights. See Scarborough, 134 Fed. Appx. at 243.

At this time, M r. Scarborough is not entitled to relief under Blakely because his §

                                          2
2255 motion is a collateral attack on his sentence. See United States v. Bellamy,

411 F.3d 1182, 1188 (10th Cir. 2005) (holding that Blakely principles do not

apply retroactively to cases on collateral review).

      The trial court erroneously concluded that M r. Scarborough’s ineffective

assistance of trial counsel claim was waived when he failed to raise the issue on

direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003) (“W e hold

that an ineffective-assistance-of-counsel claim may be brought in a collateral

proceeding under § 2255 whether or not the petitioner could have raised the claim

on direct appeal.”). Despite the erroneous legal conclusion regarding waiver, the

district court also addressed the merits of M r. Scarborough’s ineffective

assistance of counsel claim. W e find no error in the district court’s treatment of

the merits.

      M r. Scarborough also raises a claim of ineffective assistance of appellate

counsel, specifically that his appellate counsel failed to submit a transcript of

sentencing to the appellate court. Here, we are in accord w ith the district court’s

application of the Strickland v. Washington, 466 U.S. 668, 686 (1984), test and

determine that his claim is meritless.

      M r. Scarborough now seeks from this court a certificate of appealability.

The issues he raises on appeal are identical to those brought before the district

court. To grant a certificate of appealability, M r. Scarborough must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

                                           3
2253(c)(2) (1994). To meet this burden, he must demonstrate “that reasonable

jurists could debate w hether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented w ere

adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529

U.S. 473, 484 (2000) (quotation omitted).

      W e have carefully reviewed the briefs of M r. Scarborough and Appellee,

the district court’s disposition, and the record on appeal. Nothing in the facts, the

record on appeal, or M r. Scarborough’s filing raises an issue which meets our

standard for the grant of a certificate of appealability. For substantially the same

reasons set forth by the district court in its Order of January 31, 2006, we cannot

say “that reasonable jurists could debate w hether (or, for that matter, agree that)

the petition should have been resolved in a different manner.” Id.

      Accordingly, we D EN Y M r. Scarborough’s request for a certificate of

appealability and DISM ISS the appeal.

                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




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