                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 21, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 10-1084
                                              (D.C. Nos. 1:07-CV-02002-RPM,
 v.                                               1:01-CR-00395-RPM-3)
                                                          (D. Colo.)
 JACK DOWELL,

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Jack Dowell is a federal prisoner. Through appointed appellate counsel, he

seeks a Certificate of Appealability (“COA”) to appeal the district court’s denial

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

DENY his request for a COA and DISMISS this matter.




      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

       After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
                                  I. Background

      In 1997, a Colorado Springs office of the Internal Revenue Service (“IRS”)

was seriously damaged by arson. In 2001, Mr. Dowell, along with several alleged

co-conspirators, was indicted in connection with the fire. A jury convicted Mr.

Dowell (who was tried separately from his co-conspirators) of destruction of

government property in violation of 18 U.S.C. §§ 2 and 844(f)(1) & (2), and of

forcible interference with IRS employees and administration in violation of 18

U.S.C. § 2 and 26 U.S.C. § 7212(a). The district court sentenced Mr. Dowell to

360 months’ imprisonment. We rejected Mr. Dowell’s challenges to his

conviction and sentence on direct appeal. See United States v. Dowell, 430 F.3d

1100 (10th Cir. 2005).

      In 2007, Mr. Dowell filed a pro se motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence. He raised fifteen claims of ineffective

assistance of counsel. The district court eventually appointed counsel for Mr.

Dowell and held an evidentiary hearing. In a ruling from the bench following the

evidentiary hearing, the district court denied the motion.

      Mr. Dowell filed a timely notice of appeal and an application for a COA.

The district court denied the application. Mr. Dowell renews his request before

us. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).




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                                   II. Discussion

      Unless a petitioner obtains a COA, we lack jurisdiction to consider the

merits of a habeas appeal. 28 U.S.C. § 2253(c)(1)(B). We may only issue a COA

if “the applicant has made a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000);

accord Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).

      Because Mr. Dowell’s COA application rests on claims of ineffective

assistance of counsel, in order to determine if he can make a substantial showing

of the denial of a constitutional right, we must undertake a preliminary analysis of

his claims in light of the two-part test for ineffective assistance outlined in

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner

must show, first, that counsel’s performance was deficient—that the

“representation fell below an objective standard of reasonableness” as measured

by “prevailing professional norms.” Id. at 688. Second, the petitioner must

establish prejudice—“that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694; accord Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008), cert.

                                          -3-
denied, 130 S. Ct. 133 (2009). We may review these two components in any

order, and need not address both “if the defendant makes an insufficient showing

on one.” Strickland, 466 U.S. at 697.

      In his request for a COA, Mr. Dowell raises four of the fifteen claims he

pressed before the district court. First, he contends that his trial counsel, Jody

Reuler, was ineffective for not moving to suppress inculpatory statements

allegedly made by Mr. Dowell to law enforcement agents. At the evidentiary

hearing, Mr. Reuler explained that he did not pursue a motion to suppress because

“Mr. Dowell vehemently denied ever making any confession, so there was no

discussion to suppress a confession that was never made. . . . In fact, the whole

thrust of the case was that the agents made [the confession] up, . . . that was the

strategy that we used.” R., Vol. 2, at 32–33 (Evid. Hr’g Tr., dated Mar. 5, 2010).

Mr. Dowell now contends that Mr. Reuler’s strategy was “foolhardy,” because “it

was absolutely necessary to file such a motion in order to be able to examine the

agents as to the facts and circumstances surrounding the alleged statements.”

Aplt. Br. at 15.

      As framed here, in order to succeed on this ineffective-assistance claim,

Mr. Dowell must establish that there is merit to his contention that his

incriminating statements should have been suppressed. Cf. Kimmelman v.

Morrison, 477 U.S. 365, 375 (1986) (“Where defense counsel’s failure to litigate

a Fourth Amendment claim competently is the principal allegation of

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ineffectiveness, the defendant must also [in addition to the usual Strickland

showing] prove that his Fourth Amendment claim is meritorious and that there is

a reasonable probability that the verdict would have been different absent the

excludable evidence . . . .”); United States v. Cook, 45 F.3d 388, 392 (10th Cir.

1995) (“When a defendant alleges his appellate counsel rendered ineffective

assistance by failing to raise an issue on appeal, we examine the merits of the

omitted issue.”). Before us, Mr. Dowell does not mention the circumstances of

the alleged confession, 1 let alone present legal arguments concerning why it

should be suppressed. Without such support, he cannot make a substantial

showing of the denial of a constitutional right, and we must deny him a COA on

this claim.

      Second, Mr. Dowell contends that Mr. Reuler provided ineffective

assistance because he “failed to call certain witnesses [o]n his behalf, and failed

to interview them or determine their availability.” Aplt. Br. at 12. But he does

      1
              In his pro se filings before the district court, Mr. Dowell presented
some facts surrounding the statements that he says Mr. Reuler should have sought
to suppress. See R., Vol. 1, Pt. 1 at 13–14 (Pet’r’s § 2255 Mot., Attach. A, filed
Sept. 24, 2007); id. at 132–33 (Pet’r’s Mem. in Supp. § 2255 Mot., filed Sept. 24,
2007). But Mr. Dowell did not argue why these facts supported his contention
that his statements should be suppressed. He did not attempt to do so before the
district court either in his pro se filings or after counsel was appointed, and does
not make that argument on appeal. In such circumstances, “the court cannot take
on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). This principle arguably is more important in
this case because, unlike the plaintiff in Garrett, Mr. Dowell has enjoyed the
assistance of habeas and appellate counsel.

                                         -5-
not say who these witnesses are; indeed, Mr. Dowell offers no facts to show why

Mr. Reuler’s performance was deficient or how Mr. Dowell was prejudiced by

any such deficiency. 2 For this reason, even though the district court did not

specifically discuss this claim, we still can say that no reasonable jurist could

question the district court’s decision to dismiss Mr. Dowell’s motion. We will

not grant a COA on this issue.

      Third, Mr. Dowell claims that Mr. Reuler failed to effectively cross-

examine Ronald Sherman, an alleged co-conspirator who testified against Mr.

Dowell at trial. The district court rejected this claim, stating that “Ronald

Sherman was cross-examined by Mr. Reuler at some length, and . . . a fair

inference is the jury believed Mr. Sherman’s testimony.” R., Vol. 2, at 56. The

court acknowledged that the attorney for one of Mr. Dowell’s co-conspirators

“had a more effective cross-examination of Ronald Sherman than Jody Reuler did,

and to some extent took a different approach with respect to Sherman.” Id. at 57.

But “this is not so unusual a circumstance where one jury believes a witness, and

another jury doesn’t, and the witness is key to the prosecution. And, that’s the

      2
             At the evidentiary hearing, Mr. Dowell’s habeas counsel asked Mr.
Reuler why he failed to call one of Mr. Dowell’s co-conspirators as a witness.
Mr. Reuler responded that, when he asked the co-conspirator’s attorney about the
possibility of his client testifying, the attorney “said there’s no chance I’m going
to let him get up and testify.” R., Vol. 2, at 35. Mr. Dowell does not now
challenge Mr. Reuler’s explanation. Moreover, although in his pro se § 2255
filings before the district court Mr. Dowell obliquely referenced other possible
witnesses, he does not pursue these arguments here, and we will not pursue them
for him. See supra note 1.

                                         -6-
case here.” Id. Mr. Dowell offers no argument to challenge the district court’s

conclusion. Thus, he cannot make a substantial showing of the denial of a

constitutional right. We deny him a COA on this claim.

      Finally, in what he calls his “main argument,” Aplt. Br. at 12–13, Mr.

Dowell contends that Mr. Reuler was generally ineffective because he was under

investigation by state bar authorities for instances involving the misuse of client

funds. Ultimately, Mr. Reuler was disbarred for these actions. At the evidentiary

hearing, the district court heard testimony about the incidents from Mr. Reuler

and from an attorney with the Colorado Supreme Court’s Office of Attorney

Regulation. The court concluded that the disciplinary issues did not “indicate that

Mr. Reuler was so distracted that he could not render effective assistance of

counsel.” R., Vol. 2, at 55. On appeal, Mr. Dowell marshals no specific facts

suggesting that the disciplinary proceedings caused Mr. Reuler to provide

deficient representation, or that Mr. Dowell was prejudiced by any such deficient

representation. Instead, as with his other claims, he provides only bald

allegations. That is not enough to show that reasonable jurists could disagree

with the district court’s ruling, so we deny Mr. Dowell a COA on this claim.

                                  III. Conclusion

      Because Mr. Dowell has not made a substantial showing of the denial of a

constitutional right concerning any of his claims, we must DENY his application




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for a COA and DISMISS this matter.



                                     Entered for the Court


                                     JEROME A. HOLMES
                                     Circuit Judge




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