                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-6066
                                                           (W.D. Okla.)
 MONTE SILER,                                       (D.Ct. No. 99-CV-1176-C)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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 case is

therefore ordered submitted without oral argument.



      Appellant Monte Siler, a federal inmate appearing pro se, appeals the


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and 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.
district court’s decision dismissing his motion to vacate, set aside or correct his

sentence under 28 U.S.C. § 2255. We deny Mr. Siler’s request for a certificate of

appealability, deny his motion to proceed in forma pauperis as moot, 1 and dismiss

his appeal.



       Mr. Siler pled guilty to manufacturing methamphetamine. After the district

court denied Mr. Siler’s motion to withdraw his guilty plea, the court sentenced

him to 360 months in prison. We dismissed as frivolous Mr. Siler’s direct appeal

in which he claimed the district court improperly denied his motion to withdraw

his guilty plea. See United States v. Siler, 153 F.3d 729, 1998 WL 458562 (10th

Cir. Aug. 3, 1998) (unpublished opinion).



       Following his direct appeal, Mr. Siler filed his § 2255 motion, raising four

grounds for error. Specifically, Mr. Siler alleged the district court erred in: 1)

failing to reduce his sentence for acceptance of responsibility; 2) basing his

sentence on an erroneous calculation of the amount of methamphetamine he

possessed; and 3) entering a judgment when insufficient facts supported his guilty



       1
        Although Mr. Siler filed a motion for leave to proceed on appeal without
prepayment of costs or fees, he nevertheless paid the appellate filing fee in full, thereby
making his motion moot.


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plea. In addition, Mr. Siler also complained his attorney rendered ineffective

assistance of counsel by failing to: 1) adequately assess the damage his motion to

withdraw his guilty plea would cause; 2) object to the erroneous amount of

methamphetamine attributed to him in the presentencing report; and 3) object to

the insufficient factual basis for the court’s acceptance of the guilty plea.



       In an exceedingly thorough and well-explained order, the district court

denied Mr. Siler’s § 2255 motion. Applying the controlling Supreme Court and

Tenth Circuit authority, the district court presented a comprehensive analysis as to

why Mr. Siler’s claims lacked merit. Specifically, the district court determined

Mr. Siler’s first three grounds were procedurally barred due to Mr. Siler’s failure

to raise them on direct appeal, unless he could show cause for his procedural

default and prejudice therefrom. Recognizing Mr. Siler’s ineffective assistance of

counsel claim could constitute cause for such default, 2 the district court carefully

reviewed the merits of that claim. In so doing, the district court performed an

exhaustive analysis of the grounds underlying Mr. Siler’s claim and determined he

failed to show his counsel’s performance was either constitutionally deficient or


       2
        An ineffective assistance of counsel claim can serve as “cause” to excuse
procedural default of other underlying or “stand alone” claims, but only if the defendant
can meet the “cause or prejudice” standard required for establishing ineffective assistance
of counsel. See Edwards v. Carpenter, ___ U.S. ___, 120 S. Ct. 1587, 1591 (2000);
United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).

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that the alleged deficient performance prejudiced him.



      On appeal, Mr. Siler raises the same issues addressed by the district court.

In addition, for the first time on appeal, Mr. Siler contends his counsel acted

ineffectively by failing to investigate the charges against him before he pled

guilty or request discovery from the Government before rendering his guilty plea.



      We begin our review of Mr. Siler’s appeal with our standard of review.

“[W]e review the district court’s legal rulings on a § 2255 motion de novo and its

findings of fact for clear error.” United States v. Pearce, 146 F.3d 771, 774 (10th

Cir. 1998) (relying on United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996)).

Ineffective assistance of counsel claims involve mixed questions of law and fact

which we review de novo. See United States v. Prows, 118 F.3d 686, 691 (10th

Cir. 1997). In order for Mr. Siler to obtain a certificate of appealability, he must

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

2253(c)(2).



      Under the circumstances presented, we conclude Mr. Siler fails to make a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). We make this determination after carefully reviewing the


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pleadings, record on appeal, and the district court’s decision. Because the district

court presented a comprehensive analysis as to why Mr. Siler’s claims lacked

merit, we decline to duplicate its analysis here. As to Mr. Siler’s summary

allegation that his counsel failed to properly investigate the charges against him

or request discovery prior to Mr. Siler pleading guilty, we generally will not

consider an issue raised for the first time on appeal. In re Walker, 959 F.2d 894,

896 (10th Cir. 1992) (relying on Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

Even if we considered Mr. Siler’s allegation, he fails to show his counsel’s

alleged failure to take such action before Mr. Siler pled guilty prejudiced him. In

other words, it is unclear what, if anything, his counsel would have learned from

such investigation and discovery that would have prevented Mr. Siler from

pleading guilty.



      Accordingly, we deny Mr. Siler’s certificate of appealability for

substantially the same reasons set forth in the district court’s December 30, 1999

Order, and DISMISS this appeal. We further deny Mr. Siler’s request to proceed

in forma pauperis.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge


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