                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
               UNITED STATES COURT OF APPEALS                               FEB 1 2005

                              TENTH CIRCUIT                            PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 04-2095
                                            (D.C. Nos. CIV-03-1435 LH/KBM and
 v.
                                                      CR-00-1152-LH)
                                                        (New Mexico)
 RAFER HARRISON,

       Defendant-Appellant.




                                      ORDER


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Rafer M. Harrison, a federal prisoner appearing pro se, filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2255 in federal district court. The

district court refused to issue the writ or a certificate of appealability (COA).

Despite our liberal construction of Mr. Harrison’s pro se submissions to this

court, see Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), Mr. Harrison

has not satisfied the standard for obtaining a COA. We therefore deny his

application and dismiss the appeal.

      To be entitled to COA, Mr. Harrison must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, Mr. Harrison 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 deciding whether Mr. Harrison has carried

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 Mr. Harrison need not demonstrate that his appeal will succeed to

be entitled to COA, he must “prove something more than the absence of frivolity

or the existence of mere good faith.” Id. (quotations omitted).

      A jury convicted Mr. Harrison of one count of aggravated sexual abuse of a

child under twelve years old in violation of 18 U.S.C. §§ 2241(c) and 2256(2)(A),

and one count of abusive sexual contact with a child in violation of 18 U.S.C. §§

2244(a)(1), (c) and 2246(3). Mr. Harrison was sentenced to 324 months

imprisonment and this court affirmed his conviction on direct appeal. See United

States v. Harrison, 296 F.3d 994 (10th Cir. 2002). The Supreme Court denied his

petition for writ of certiorari, Harrison v. United States, 537 U.S. 1134 (2003),

and Mr. Harrison timely filed for habeas relief. The district court adopted the

recommendations of a magistrate judge and dismissed Mr. Harrison’s petition.


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This appeal followed.

      In his application for a COA, Mr. Harrison first complains that the jury

selection process was unconstitutional because only one Native American was

included in the forty-member venire. This claim could have been raised on direct

appeal. “Section 2255 motions are not available to test the legality of matters

which should have been raised on direct appeal.” United States v. Warner, 23

F.3d 287, 291 (10th Cir. 1994). Mr. Harrison is barred from raising this issue

now “unless he 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.” Id. at

291. Mr. Harrison has not proffered any reason for his failure to raise his venire

challenge on direct appeal. He has alleged neither good cause nor actual

prejudice. This claim is therefore procedurally barred and the district court

properly denied relief.

      Mr. Harrison next claims that his trial attorney was constitutionally

ineffective for failure to offer into evidence certain medical documents. In order

to prevail on an ineffective assistance claim, a petitioner must demonstrate both

that his attorney’s performance was deficient and that the deficiencies prejudiced

his defense. Strickland v. Washington, 466 U.S 668, 687 (1984). A showing of

prejudice requires a demonstration of “a reasonable probability that, but for


                                         -3-
counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

      Mr. Harrison submits that trial counsel’s failure to put into evidence the

report of Dr. Caitlin Hall’s medical examination of the alleged victim constituted

ineffective assistance of counsel. He asserts the report was critical to his defense

because it provided medical proof that refuted the alleged victim’s claim of

penetration. Although defense counsel did not introduce the medical report at

trial, Dr. Caitlin did testify. Mr. Harrison does not refute the government’s

assertion that the substance of the medical report - that there was no physical

evidence the victim had been abused - was a significant part of Dr. Caitlin’s

testimony, which was subjected to cross-examination. In other words, the

substance of the medical report was admitted into evidence. Because the jury was

aware through Dr. Caitlin’s testimony that the sexual abuse physical examination

had come back with normal results, Mr. Harrison’s allegations are insufficient to

meet the prejudice prong of Strickland. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991) (holding that even pro se plaintiffs must allege sufficient facts

on which a recognized legal claim can be based, and that conclusory allegations

will not suffice). Mr. Harrison’s claim simply fails to establish a reasonable

probability that admission of the actual medical report would have resulted in a

different outcome at trial.


                                         -4-
     For the foregoing reasons, we DENY Mr. Harrison’s application for a COA

and DISMISS the appeal.

                                  SUBMITTED FOR THE COURT

                                  Stephanie K. Seymour
                                  Circuit Judge




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