                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               SEP 2 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 99-3039
 v.
                                                     (D.C. No. 97-3135-SAC)
                                                       (District of Kansas)
 KEVIN LEWIS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Kevin Lewis, pro se, appeals the district court’s denial of his habeas

petition and requests a certificate of appealability. We deny his request for a

certificate of appealability pursuant to 28 U.S.C. § 2253(c).

                                            I

      Lewis was tried and convicted for possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1) in November 1991. We affirmed


      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
his conviction. See United States v. Lewis, No. 92-3114, 1993 WL 307922 (10th

Cir. Aug. 12, 1993). On April 15, 1997, he filed a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his conviction. The district court denied the motion.

In his appeal, Lewis argues that the district court erroneously admitted evidence

of his prior conviction; that his trial and appellate counsel rendered ineffective

assistance; that there was a constructive amendment to the indictment in violation

of his Fifth Amendment right to be tried only on those charges returned by the

grand jury; that the court violated his right to confrontation when it admitted the

out-of-court confession of a nontestifying codefendant; and that the district court

lacked jurisdiction to try him.

                                          II

      “When reviewing a district court’s denial of a habeas petition, we accept

the court’s findings of facts unless they are clearly erroneous [and] we review the

court’s conclusions of law de novo.” Wildermuth v. Furlong, 147 F.3d 1234,

1236 (10th Cir. 1998) (internal citation omitted).

      We consider Lewis’s challenge to the district court’s admission of evidence

of his prior conviction, and conclude that because this claim was raised and

rejected on direct appeal, see Lewis, 1993 WL 307922 at *3, it cannot be

relitigated in a § 2255 motion. See United States v. Warner, 23 F.3d 287, 291

(10th Cir. 1994).


                                         -2-
      Lewis argues that his trial counsel was ineffective in failing to investigate

discoverable material, including the arrest record of a confidential informant and

witness for the government. To prevail on this claim, Lewis must demonstrate

that (1) his counsel’s performance fell below “an objective standard of

reasonableness,” and (2) there is “a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Rejecting Lewis’s

ineffective assistance of counsel claim, the district court found that counsel’s

failure to advance “every nonfrivolous issue” does not constitute ineffective

assistance of counsel. United States v. Lewis, No. 97-3135-SAC, at 18 (D. Kan.

Dec. 8, 1998) (quoting United States v. Cook, 45 F.3d 388, 394 (10th Cir. 1995)).

Lewis provides us with no basis to doubt the district court’s finding and to

conclude that but for counsel’s failure to investigate the confidential informant,

the result of the trial would have been different. 1 Lewis has thus failed to carry

his burden of proving that his trial counsel rendered constitutionally ineffective

assistance.



      1
        On direct appeal, Lewis attributed his counsel’s failure to investigate the
informant to the government’s untimely disclosure of discovery material. We rejected
this argument and found “no prejudice resulting from the untimely discoveries,” because
Lewis conceded that the police reports “were provided to [him] as soon as the
government became aware of them [and the] court provided time for [Lewis] to review
the report[s].” Lewis, 1993 WL 307992 at *3.

                                          -3-
      In assessing Lewis’s claim of ineffective assistance of appellate counsel,

we also apply the Strickland standard. See Cook, 45 F.3d at 392. “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. . . . If the

omitted issue is without merit, counsel’s failure to raise it ‘does not constitute

ineffective assistance of counsel.’” Id. at 392-93 (quoting United States v. Dixon,

1 F.3d 1080, 1084 n.5 (10th Cir. 1993)). Lewis argues that his appellate counsel

was ineffective because he failed to raise various challenges to the legality of his

sentence. However, Lewis’s conclusory allegations in his petition, including the

claim that the court was without jurisdiction to impose a sentence, are meritless.

      Lewis’s argument that although the government’s evidence may have been

sufficient to support a charge of conspiracy to possess and distribute cocaine

base, that evidence was insufficient to support the charge pled in the

indictment—possession with intent to distribute cocaine base—is equally

meritless. This claim is raised for the first time on appeal and is thus

procedurally barred unless Lewis can demonstrate “cause excusing his procedural

default or actual prejudice resulting from the errors of which he complains or . . .

that a fundamental miscarriage of justice will occur if his claim is not addressed.”

United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993).




                                          -4-
      Lewis has failed to show cause for his failure to raise this claim on direct

appeal. Moreover, Lewis does not challenge the district court’s specific finding

that the jury was instructed only as to the elements of the offense with which he

was charged. The district court’s factual findings, which Lewis does not

challenge on appeal, demonstrate that there was sufficient evidence adduced at

trial from which a reasonable jury could conclude that Lewis was guilty of

possessing crack cocaine with intent to distribute. As such, Lewis has failed to

demonstrate that a fundamental miscarriage of justice will occur if his claim is

not addressed.

      We also reject Lewis’s claim that the court violated his Sixth Amendment

right to confrontation when it allowed a police officer to testify about the

out-of-court confession of a nontestifying codefendant. A defendant’s Sixth

Amendment right of confrontation is violated if the prosecution is allowed to

introduce a nontestifying codefendant’s out-of-court confession that implicates

the defendant in the commission of the crimes charged. See Bruton v. United

States, 391 U.S. 123, 135-36 (1968). However, the Court has refused to extend

Bruton to cases where the nontestifying codefendant’s out-of-court confession is

admitted with a proper “limiting instruction” and is “redacted to eliminate not

only the defendant’s name, but any reference to his or her existence.” Richardson

v. Marsh, 481 U.S. 200, 211 (1987). On appeal, Lewis does not contest the


                                         -5-
district court’s findings that the trial judge gave a proper limiting instruction to

the jury concerning the codefendant’s out-of-court confession and that the

confession was redacted to eliminate any reference to Lewis’s name or his

existence. We thus discern no Confrontation Clause violation.

      We find no merit to Lewis’s claim that the district court lacked jurisdiction

to try him.

      Concluding that Lewis has failed to make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. 2253(c)(2), we deny his request for a

certificate of appealability.

      DISMISSED. The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -6-
