                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 16 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-1347
 v.
                                                   (D.C. No. 98-M-1666)
                                                         (D. Colo.)
 DONALD C. SCARBOROUGH,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Petitioner-Appellant Donald Scarborough (“Scarborough”) was convicted

of knowingly possessing with the intent to distribute 500 grams or more of

cocaine in violation of 18 U.S.C. § 841(a)(1). On direct appeal, this court

affirmed a number of district court rulings challenged by Scarborough and

ultimately affirmed his conviction. See United States v. Scarborough, 128 F.3d



      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
1373 (10th Cir 1997). Thereafter, Scarborough filed a motion under 28 U.S.C. §

2255 seeking to vacate, set aside, or correct his sentence. The district court

denied the motion. Further, the district court issued an order denying leave for

Scarborough to file his appeal in forma pauperis and an order denying a

certificate of appealability.

      On October 16, 1998, Scarborough filed an application for a certificate of

appealability and a motion to proceed in forma pauperis on appeal with this court.

Scarborough’s application for a certificate of appealability before this court

asserts the same four errors considered and rejected by the district court.

Scarborough claims:

      1) That his trial counsel rendered ineffective assistance “when he
      unwittingly relieved the government of its burden of proof,” in
      violation of the Sixth Amendment to the United States Constitution;

      2) That government agents mishandled evidence resulting in a violation of
      Scarborough’s due process rights;

      3) That the government failed to turn over exculpatory evidence in
      violation of Brady v. Maryland, 373 U.S. 83 (1963), and the Fifth and
      Fourteenth Amendments to the United States Constitution; and

      4) That “[t]he district court failed to require the government to prove,
      beyond a reasonable doubt that there was territorial jurisdiction to try the
      criminal case in a legislative territorial court created under Article IV, Cl. 2
      of the Federal Constitution.”

      Scarborough failed to raise the first, second, and fourth issues either at his

trial or on direct appeal. In order to excuse his “double procedural default,”


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Scarborough must show “cause” and “actual prejudice” resulting from the errors

about which he complains. See United States v. Frady, 456 U.S. 152, 167-68

(1982). After careful review of the record, construing his pro se pleadings

liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we have determined

that Scarborough has failed to meet his burden under Frady.

      Scarborough’s third issue, his Brady claim, has previously been resolved by

this court. In resolving Scarborough’s direct criminal appeal, we held the very

evidence that Scarborough now claims the government withheld in violation of

Brady was ultimately disclosed to him at trial, that his counsel “extensively cross-

examined [the government’s forensic expert] regarding the tardily-disclosed

evidence,” and that his counsel “used the evidence to strong effect in his closing

argument.” Scarborough, 128 F.3d at 1376. In short, we held that Scarborough

failed to meet Brady’s materiality standard. Id. We reject the invitation to

overrule our earlier decision based on the exact same facts presented by the

identical party.

      Accordingly, we DENY Scarborough’s application for a certificate of

appealability. Moreover, because we find that Scarborough’s appeal is frivolous

and fails to present a substantial question, we DENY his motion to proceed in

forma pauperis.




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The mandate shall issue forthwith.

                               ENTERED FOR THE COURT



                               David M. Ebel
                               Circuit Judge




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