                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS                    May 8, 2012
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-4029
                                                (D.C. No. 2:11-CV-01052-TC)
 v.                                                       (D. Utah)
 JEFFREY F. GEDDES,

              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and petitioner, Jeffrey Geddes, appearing pro se, seeks a

certificate of appealability (“COA”) in order to appeal the district court’s denial

of his motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)

      *
       This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(requiring COA to appeal dismissal of § 2255 motion). Because the issues raised

by Mr. Geddes could have been, but were not, raised on direct appeal, we deny

his request for a COA and dismiss this matter.

      Mr. Geddes pled guilty to multiple charges of bank and wire fraud, and a

single charge of failure to appear. He was sentenced to 188 months of

imprisonment. On appeal, his attorney filed an Anders 1 brief and the appeal was

dismissed, following our consideration of the two issues raised by counsel.

United States v. Geddes, 401 Fed. Appx. 387 (10th Cir. 2010).

      Mr. Geddes then filed his § 2255 motion, claiming that he was denied

counsel of his choice in violation of the Sixth Amendment because he was forced

to use the public defender rather than private counsel. On December 5, 2011, the

district court issued an Order and Memorandum Decision, denying Mr. Geddes’

motion, ruling that his claim is procedurally barred because it could have been,

but was not, raised on direct appeal.

      It is well established that “[s]ection 2255 motions are not available to test

the legality of matters which should have been [but were not] raised on direct

appeal,” unless the movant “can show cause excusing his procedural default and

actual prejudice resulting from the errors of which he complains, or can show that

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

United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994); see United States v.

      1
          Anders v. California, 386 U.S. 738 (1967).

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Frady, 456 U.S. 152 (1982); Massaro v. United States, 538 U.S. 500, 504 (2003)

(noting the “general rule that claims not raised on direct appeal may not be raised

on collateral review unless the petitioner shows cause and prejudice”).

      Mr. Geddes does not contend that the issue raised in his § 2255 motion was

raised on his direct appeal. Nor does he argue that circuit law has changed since

his direct appeal. Rather, he contends that his attorney failed to raise issues on

appeal that Mr. Geddes wanted him to raise. Appellant’s Opening Br. at 4.

      Nevertheless, under Tenth Circuit Rule 46.4(B)(1), (2), when counsel files

an Anders brief, and moves to withdraw on the grounds that there are no

meritorious issues on appeal, the clerk of this court sends the defendant, by

certified mail, a copy of counsel’s brief, the motion to withdraw, and a notice

containing instructions to the defendant with respect to his right to raise any

appellate issue he desires. The records of this court show that Mr. Geddes was

sent those documents, including the notice, to the address he continues to list as

the correct one, on June 4, 2010. The court thereafter received a signed return

receipt acknowledging delivery of those items to Mr. Geddes. Copies of that

notice and the return receipt are attached.

      As we indicated in our opinion on Mr. Geddes’ direct appeal, United States

v. Geddes, 401 Fed. Appx. 387, and again reaffirm, from June 4, 2010, to

November 9, 2010, the date we issued our opinion, Mr. Geddes did not file any




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response as directed in the notice, or attempt in any way to advance the arguments

he seeks now to make.

      We will issue a COA “only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Mr. Geddes 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.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). When the district court dismisses a petition on procedural grounds, as it

did here, the applicant must not only make a substantial showing of the denial of

a constitutional right; he must also demonstrate that the district court’s “dismissal

on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. at 484. That is the case here.

      Accordingly, substantially for the reasons set forth in the district court’s

Order and Memorandum Decision dated December 5, 2011, we DENY Mr.

Geddes’ application for a COA and DISMISS this appeal.

                                                ENTERED FOR THE COURT

                                                Stephen H. Anderson
                                                Circuit Judge

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