                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  March 29, 2012
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 11-6291
                                             (D.C. Nos. 5:06-CR-00136-M-1 and
 MICHAEL DEWAYNE MAYTUBBY,                          5:09-CV-01128-M)
                                                        (W.D. Okla.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.



      Michael Maytubby was convicted of several drug-related offenses. In due

course, he filed a motion in the district court seeking relief from these convictions

under 28 U.S.C. § 2255. The district court, however, denied the petition as well

as Mr. Maytubby’s request for a certificate of appealability (“COA”). So it is that

Mr. Maytubby now seeks a COA from this court.

      We may grant a COA only if Mr. Maytubby makes a “substantial showing

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


      *
         This order is not binding precedent except under the doctrines of law of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.
standard, Mr. Maytubby 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)

(internal quotation omitted).

      This he has not done. Mr. Maytubby argues that he is entitled to a COA on

three grounds. Two of these involve Mr. Maytubby’s claim that the district court

erred in allowing evidence of uncharged crimes and other allegedly prejudicial

evidence to be admitted at his trial. The problem is, Mr. Maytubby did not raise

this claim on direct appeal, and so it is procedurally barred. See, e.g., United

States v. Hollis, 552 F.3d 1191, 1193-94 (10th Cir. 2009).

      Of course, Mr. Maytubby’s failure to present this claim on appeal may be

excused if he can show cause for the procedural default and actual prejudice. Id.

And here we come to Mr. Maytubby’s third argument for a COA — that his

appellate counsel was constitutionally ineffective in failing to challenge the

admission of this evidence on appeal. See, e.g., United States v. Harms, 371 F.3d

1208, 1211 (10th Cir. 2004) (explaining that ineffective assistance of counsel is

not only an independent ground for relief but also constitutes sufficient cause for

excusing a procedural default). To prevail on this claim, Mr. Maytubby is

required to show two things: (1) that his appellate counsel’s representation “fell

below an objective standard of reasonableness” and (2) “that there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the [appeal]

would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694

(1984).

      After reviewing the record, we conclude that all of the challenged evidence

was properly admitted at trial, and so Mr. Maytubby has failed to meet his burden

under at least the second prong of the Strickland test. The allegedly inadmissable

evidence was certainly relevant to the charges against Mr. Maytubby. Evidence

of his affiliation with the Playboy Gangster Crips was properly offered to show

the existence of a conspiracy and to explain the relationship between the co-

conspirators. See United States v. Brown, 200 F.3d 700, 708 (10th Cir. 1999).

Likewise the testimony that Mr. Maytubby was holding a gun during a shootout

formed the basis for one of the charges against Mr. Maytubby — that he used or

carried a gun in furtherance of a drug trafficking conspiracy — while the

testimony that Mr. Maytubby threatened individuals who might expose his drug

trafficking activity helped demonstrate that Mr. Maytubby was aware of and

involved in the conspiracy. Accordingly, we reject Mr. Maytubby’s claim that

this evidence was prohibited under Fed. R. Evid. 404(b). See United States v.

Smith, 534 F.3d 1211, 1218 (10th Cir. 2008) (“Conduct which occurs during the

life of a conspiracy and is a part of the same is direct evidence of the conspiracy

and therefore not subject to Rule 404(b).” (quotation omitted)). And Mr.

Maytubby’s claim that the district court erred in allowing evidence of an

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unrelated murder is misleading at best. The truth is the prosecutor introduced a

hooded sweatshirt bearing the picture of a former member of the Playboy

Gangster Crips who had presumably been killed by a rival gang. This was

relevant to show Mr. Maytubby’s gang affiliation and ultimately his ties to the

drug trafficking conspiracy.

       At most, then, Mr. Maytubby’s appellate counsel could have argued that the

district court should have excluded the challenged evidence under Fed. R. Evid.

403 because its relevance was substantially outweighed by the danger of unfair

prejudice. But here he would have faced an insurmountable hurdle. In order to

successfully challenge a district court’s ruling under Rule 403, a party is required

to show that the district court abused its discretion in allowing the allegedly

prejudicial evidence to be admitted, see United States v. Burgess, 576 F.3d 1078,

1098 (10th Cir. 2009), and we can’t say that occurred here.

       Because we conclude that no reasonable jurist would debate the district

court’s disposition of Mr. Maytubby’s claims, we deny his application for a COA

and dismiss this appeal. We grant his motion to proceed in forma pauperis and

remind him that he must continue making partial payments until the entire filing

fee is paid in full.

                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge

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