                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 21, 2012
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 11-8068
 v.                                            (D.C. Nos. 1:08-CV-00252-NDF
                                                  & 2:03-CR-00102-NDF-1)
 STEVEN PAUL BRADLEY,                                   D. Wyoming

              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



      Petitioner, Steven Paul Bradley, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255

motion unless he first obtains a COA). In 2006, Bradley was convicted of being a

felon in possession of both ammunition and a firearm, possession of a firearm not

registered in the national firearms registration and transfer record, interference

with commerce by extortion, and possession of a destructive device during and in

relation to a violent crime. United States v. Bradley, 367 F. App’x 873, 874 (10th
Cir. 2007). Bradley’s convictions were affirmed by this court on July 24, 2007.

Id. at 877.

      Bradley filed the instant § 2255 motion in federal district court on

November 21, 2008, asserting four grounds for relief: (1) ineffective assistance of

trial counsel arising from a conflict of interest; (2) vindictive prosecution; (3)

insufficient evidence to support the extortion conviction; and (4) insufficient

evidence to support the conviction for possession of a destructive device.

Bradley’s § 2255 motion also referenced a fifth ground for relief, but that portion

of his motion included a recitation of facts relating to his mental health and the

government’s trial evidence, and a request that new forensic tests be performed;

no independent claim was raised.

      The district court first addressed Bradley’s ineffective assistance claims

against his attorney, Ronald Pretty. The court concluded the first claim failed

because it was based on unsupported, conclusory allegations that Mr. Pretty

misadvised him on the ramifications of refusing to withdraw an interlocutory

appeal. The conflict-of-interest based claim failed because Bradley was unable to

demonstrate the existence of an actual conflict of interest 1 that adversely affected

Mr. Pretty’s performance. See Mickens v. Taylor, 535 U.S. 162, 171 (2002). The

court next concluded Bradley was barred from seeking habeas relief on his due


      1
       The district court noted the record only established the existence of a
potential conflict of interest.

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process claim that the Government acted vindictively by filing additional charges

against him in retaliation for his refusal to withdraw his interlocutory appeal

because the claim should have been raised on direct appeal and Bradley failed to

show cause and prejudice excusing the procedural default. The district court

likewise concluded Bradley’s sufficiency of the evidence claims were

procedurally barred. Finally, the court construed Bradley’s fifth claim as either a

reiteration of his allegations of ineffective assistance or an assertion that his

mental illness excuses his criminal conduct. The court repeated its ruling that

Bradley’s ineffective assistance claims failed on the merits and concluded any

claim of diminished capacity should have been raised on direct appeal.

      To be entitled to a COA, Bradley 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 v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Bradley 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 Bradley need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove




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something more than the absence of frivolity or the existence of mere good faith.”

Id. (quotations omitted).

      In his appellate brief, Bradley attempts to raise a Brady claim that was not

presented to the district court, presents additional substantive arguments

challenging the defaulted sufficiency-of-the evidence claims, and raises new

arguments in an attempt to show cause and prejudice excusing his procedural

defaults. We will not consider any of these arguments because they were not

presented to the district court. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992,

999 (10th Cir. 2002) (“[A]bsent extraordinary circumstances, [this court] will not

consider arguments raised for the first time on appeal. This is true whether an

appellant is attempting to raise a bald-faced new issue or a new theory that falls

under the same general category as a previous argument.” (quotations and citation

omitted)). Bradley also appears to argue that he met his burden of demonstrating

cause and prejudice by including an assertion in his § 2255 motion that he suffers

from a mental illness and, thus, was unable to present his appellate arguments.

Not only was Bradley’s cause and prejudice argument undeveloped and

conclusory, in light of the fact he was found competent to stand trial and was

represented by counsel on direct appeal, 2 we do not believe “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have


      2
        Bradley did not allege his appellate counsel was ineffective for failing to
raise the defaulted issues.

                                         -4-
been resolved in a different manner.” Miller-El, 537 U.S. at 336 (quotation

omitted).

      Having undertaken a review of Bradley’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 that Bradley is not entitled to a COA. The district court’s resolution of

Bradley’s § 2255 motion is not reasonably subject to debate and the issues he

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court denies Bradley’s request for a COA and dismisses this

appeal. Bradley’s request to proceed in forma pauperis on appeal is granted.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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