                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             OCT 6 2000
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 00-3110
          v.                                                 D. Kan.
 ALDWYN GEORGE STEWART,                            (D.C. No. 00-CV-3011)

               Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.           **




      Aldwyn Stewart, proceeding pro se, appeals the district court’s denial of his

application for a certificate of appealability pursuant to 28 U.S.C. § 2255. Mr.

Stewart, a citizen of Jamaica, pleaded guilty to returning to the United States after



      *
        This order and judgment is not binding precedent, except under the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.

      **
         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.
deportation following conviction of an aggravated felony. He was sentenced on

the re-entry charge to 57 months’ imprisonment and three years supervised

release. Mr. Stewart’s judgment was filed on January 4, 1999 and was entered on

the docket sheet the following day.

       In his § 2255 motion before the district court, filed on January 5, 1999, Mr.

Stewart claimed ineffective assistance of counsel based upon his counsel’s failing

to file a notice of appeal following his conviction on the re-entry charge. The

district court determined that the § 2255 motion was time-barred by the statute of

limitations established by 28 U.S.C. § 2244. The district court further stated, that

“even if [Mr. Stewart’s] motion had been timely filed, the files and records

nevertheless conclusively show that he is entitled to no relief.” Rec. vol. I, doc

20 (Order dated Feb. 8, 2000) ¶ 3.

       In its analysis of the merits of Mr. Stewart’s petition, the court’s analysis

suggests that because Mr. Stewart signed a waiver of his right to appeal, he was

foreclosed from basing a claim of ineffective assistance on his counsel’s failure to

file a notice of appeal. The district court subsequently dismissed Mr. Stewart’s

application for a certificate of appealability. A renewed application is before us

now.

       Because the record suggests that there may have been some confusion as to

the exact date on which the judgment on Mr. Stewart’s conviction became final,


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see 28 U.S.C. § 2255, we are reluctant to dispose of Mr. Stewart’s petition

because it was untimely. We may affirm for any reason on appeal, and turn to the

merits of Mr. Stewart’s application and the pleadings, which we construe

liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972).

       Mr. Stewart contends that after he stated his reluctance to sign the waiver,

his counsel suggested to him, through a fellow inmate, that Mr. Stewart would

receive a greater sentence if he chose to appeal his sentence. Based on this

information and alleged pressure from counsel, Mr. Stewart signed the waiver of

his right to appeal. He now contends he was unaware of the preclusive effect of

his assent.

       To demonstrate ineffectiveness of counsel, Mr . Stewart must show that his

counsel’s performance fell below an objective standard of reasonableness, and

that counsel's deficient performance was prejudicial.        See Strickland v.

Washington , 466 U.S. 668, 687, 690 (1984). 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 this case, in order to establish prejudice under    Strickland , Mr. Stewart

would be required to establish that, if his counsel had not induced him to sign the

waiver, there is a reasonable probability that he would have prevailed on appeal.

The record evinces no such reasonable probability. We agree with the district


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court that Mr. Stewart has “failed to make a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), required to obtain a certificate of

appealability.

      Accordingly, we DENY Mr. Stewart’s request for a certificate of

appealability and DISMISS the appeal.



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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