                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 22, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-5137
          v.                                           (N.D. Oklahoma)
 MARK EDWARD BROWN,                         (D.C. No. 4:08-CV-00633-CVE-PJC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Proceeding pro se, Mark Edward Brown seeks to appeal the district court’s

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

The matter is before this court on Brown’s request for a certificate of


      *
        This order and judgment is not binding precedent except under the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.
appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). We grant Brown’s application in part, deny it in part, and

affirm the district court’s denial of habeas relief with respect to the one claim on

which we grant COA.

      A federal jury found Brown guilty of attempted robbery, and aiding and

abetting; brandishing a firearm during a crime of violence, and aiding and

abetting; and being a felon in possession of a firearm. After entry of judgment,

Brown’s counsel filed an appellate brief pursuant to Anders v. California, 386

U.S. 738 (1967). Brown filed a response to the Anders brief. This court denied

relief on all the Anders issues and the additional issues raised by Brown in his

response. United States v. Brown, 255 F. App’x 292, 295-96 (10th Cir. 2007).

      Brown filed the instant § 2255 motion on October 23, 2008, raising three

claims: (1) ineffective assistance of trial counsel, (2) ineffective assistance of

appellate counsel, and (2) the failure of this court to properly address his request

for substitution of counsel. The district court first addressed Brown’s thirteen

individual claims of ineffective assistance of trial counsel. Applying the two-part

test set out in Strickland v. Washington, 466 U.S. 668, 688-89 (1984), the court

concluded Brown was not entitled to relief on any claim because he was either

unable to demonstrate his trial counsel’s performance was deficient or failed to

show he suffered any prejudice from the alleged deficient performance. The court

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next addressed Brown’s ineffective assistance of appellate counsel claim. The

court concluded Brown was not entitled to habeas relief on this claim because the

issues Brown’s counsel failed to include in his Anders brief were raised in

Brown’s response and dismissed by this court as frivolous. See United States v.

Cook, 45 F.3d 388, 392 (10th Cir. 1995) (“If the omitted issue is without merit,

counsel’s failure to raise it ‘does not constitute constitutionally ineffective

assistance of counsel.’”). Finally, the district court concluded Brown was not

entitled to habeas relief on his claim that this court failed to appoint substitute

appellate counsel.

      Brown seeks a COA on five of the issues addressed by the district court: (1)

trial counsel was ineffective for failing to challenge the submission of the

brandishing charge to the jury, (2) trial counsel failed to provide him with access

to discovery materials, (3) trial counsel failed to request an instruction on

identification, (4) appellate counsel was ineffective for failing to raise numerous

issues on appeal, and (5) trial counsel was ineffective for failing to file a motion

to recuse the trial judge. To be entitled to a COA, Brown must make “a

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

§ 2253(c)(2). To make the requisite showing, he 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

presented were adequate to deserve encouragement to proceed further.” Miller-El

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v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether

Brown has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although Brown need not demonstrate his appeal will succeed

to be entitled to a COA, he must “prove something more than the absence of

frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Brown’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Brown is entitled to a COA on his fifth claim. The district court

concluded Brown was not entitled to habeas relief on that claim because he never

previously appeared before Judge Cook. Brown, however, has attached a

judgment showing he appeared before Judge Cook in 1991, and was acquitted of

conspiracy, bank robbery, and carrying a firearm during the commission of a

crime of violence. 1 To prevail on this ineffective assistance claim, Brown must

show both that his attorney’s representation was deficient and the substandard

performance prejudiced him. Strickland, 466 U.S. at 687. Brown, however, has

wholly failed to show how he was prejudiced by counsel’s failure to seek a

recusal. His claim, therefore, fails on the merits and we affirm the district

      1
        It appears the Government responded to Brown’s claim by providing the
district court with a copy of a judgment in a criminal matter involving a different
Mark Edward Brown.

                                          -4-
court’s dismissal of it. See id. at 697 (holding a court may resolve an ineffective

assistance of counsel claim on either the performance or the prejudice prong).

The district court’s resolution of Brown’s remaining claims is not reasonably

subject to debate and the issues he seeks to raise on appeal relating to those

claims are not adequate to deserve further proceedings. Thus, we deny COA on

those claims.

      Brown’s application for a COA is granted in part and denied in part. As

to the issue on which COA is granted, the district court’s denial of relief is

affirmed. As to the remaining issues, COA is denied and Brown’s appeal is

dismissed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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