                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 2, 2010
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-5132
                                            (D.C. Nos. 4:08-CV-00610-CVE-PJC
 v.
                                                and 4:05-CR-00070-CVE-1)
                                                      (N. Dist. Okla.)
 JOHN THOMAS WATTERS,

          Defendant-Appellant.




                                    ORDER *

Before HARTZ, SEYMOUR and EBEL, Circuit Judges.


      John Thomas Watters seeks a Certificate of Appealability (COA) to appeal

the district court’s denial of his 28 U.S.C. § 2255 petition and verified motion for

evidentiary hearing. For substantially the reasons stated by the district court, we

deny Mr. Watters’ request for a COA. 1

      *
       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). This case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
      1
       Although his notice of appeal was due on or before September 14, 2009,
see Fed. R. App. P. 4(a)(1)(B), Mr. Watters did not file it until September 15,
      Mr. Watters was convicted of conspiracy in violation of 21 U.S.C. § 846

(Count I); possession with intent to distribute in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(A)(vii) (Count II); maintaining, controlling, and profiting

from a premises for the purpose of unlawfully storing a controlled substance in

violation of 21 U.S.C. § 856(a)(2) and (B) (Count III); and being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2)

(Count IV). He received a sentence of 240 months’ imprisonment for Counts I &

II, and 97 months’ imprisonment for Counts III & IV, to be served concurrently.

We affirmed his conviction on appeal. See United States v. Watters, 237 F.

App’x 376 (10th Cir. 2007).

      On October 14, 2008, Mr. Watters timely filed the instant pro se motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, and a verified

motion for an evidentiary hearing. His § 2255 petition alleged five claims:




2009. The notice of appeal contained a statement that it was mailed on September
8, 2009, suggesting that it could be timely under the prison mailbox rule
articulated in Fed. R. App. P. 4(c)(1) (“[i]f an inmate confined in an institution
files a notice of appeal in either a civil or a criminal case, the notice is timely if it
is deposited in the institution’s internal mail system on or before the last day for
filing”). Because the notice did not include the requisite declaration under
penalty of perjury in compliance with 28 U.S.C. §1746 or a notarized statement,
we issued a show cause order providing Mr. Watters thirty days to demonstrate
compliance with Fed. R. App. 4(c)(1) or otherwise show cause why his appeal
should not be dismissed as untimely. See Sept. 16, 2009 Order at 2. He
responded on September 24 with the requested proof, including a copy of a
certified mail receipt showing a September 9, 2009 mailing date. Thus, his appeal
is timely.

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      (1) his conviction was obtained by the use of evidence gained
      pursuant to an unconstitutional search and seizure; (2) his conviction
      was obtained by use of evidence gained pursuant to an unlawful
      arrest; (3) ineffective assistance of trial counsel; (4) ineffective
      assistance of appellate counsel; and (5) actual innocence.

Aplt. Br. App. D, at 4-5.

      In a thorough decision, the district court reviewed each of Mr. Watters’s

claims. The court concluded that it possessed jurisdiction to review his § 2255

challenges only to the extent that they involved ineffective assistance of counsel

because Mr. Watters failed to exercise his opportunity to present his other claims

at trial or on direct appeal. Viewed through the lens of our standards governing

determinations of ineffective assistance of counsel, see Strickland v. Washington,

466 U.S. 668, 687 (1984); Smith v. Robbins, 528 U.S. 259, 285 (2000); Hawkins

v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999), the district court rejected all

five claims.

      In so doing, the court reasoned that to the extent Mr. Watters claimed he

had rented the property to another and had no access to it except to accept

propane deliveries, he possessed no reasonable expectation of privacy in the

disputed land and thus lacked standing to pursue a Fourth Amendment challenge

to the warrantless video surveillance. Alternatively, assuming Mr. Watters had

standing to contest the video surveillance on his property, the court noted that

counsel had researched whether the surveillance was outside the curtilage of Mr.

Watters’ house, concluded that it was, and therefore believed that the surveillance

                                         -3-
was not protected by the Fourth Amendment. The court held that it must defer to

counsel’s tactical decision not to file a motion to dismiss and accordingly

concluded that counsel was not deficient in failing to raise this argument. With

respect to Mr. Watters’ attack on the subsequent search of the house pursuant to

the warrant the officers obtained, the court reasoned that any question as to the

search pursuant to the warrant was undermined by United States v. Leon, 468 U.S.

897 (1984). Finally, the court observed that Mr. Watters’ unlawful arrest claims

were “vague and conclusory and are not entitled to any weight,” rec. vol. I, at

401; and “Watters presents no new evidence to support his claim of actual

innocence and has failed to convince the Court that his trial was marred by

constitutional error.” Id. at 402. Absent any indication that counsel was

constitutionally deficient for failing to raise meritorious claims, the court denied

the § 2255 petition as well as Mr. Watters’s motion for an evidentiary hearing.

      To obtain a COA, Mr. Watters must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing,

he must demonstrate that “reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529

U.S. 473, 483-84 (2000) (internal quotation marks omitted).

      After careful review of the briefs, the record on appeal, and the district

court’s analysis, we conclude that Mr. Watters has not met the standard for

                                          -4-
obtaining a COA. Accordingly, substantially for the reasons set forth in the

district court’s well-reasoned opinion, we DENY Mr. Watters’s request for a

COA and DISMISS the appeal.


                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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