                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                         UNITED STATES COURT OF APPEALS                  November 27, 2009
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                             No. 09-3271
 v.                                                (D.C. No. 6:09-CV-01172-MLB)
                                                  (D.C. No. 6:07-CR-10094-MLB-1)
 MALCOM T. BEDFORD,                                           (D. Kan.)
           Defendant–Appellant.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Malcolm T. Bedford, a federal prisoner proceeding pro se,1 requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion

seeking an evidentiary hearing. Because reasonable jurists would agree that the

performance of Bedford’s counsel did not fall below an objective standard of

reasonableness, we deny Bedford’s request for a COA and dismiss the appeal.


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
      Because Bedford proceeds pro se, we liberally construe his application for a
COA. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
                                              I

       In December 2007, Bedford was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C § 922(g)(1) in the United States District Court for the

District of Kansas. Bedford appealed his conviction to this court, arguing that the

evidence was not sufficient for a reasonable jury to find him guilty. In December 2008,

this court rejected Bedford’s claim and upheld his conviction.

       Bedford then brought a motion requesting an evidentiary hearing pursuant to 28

U.S.C. § 2255 on the ground that his trial counsel was ineffective. He argued his trial

counsel was constitutionally deficient for two reasons: (1) counsel stipulated to facts that

established an element of the crime for which Bedford was convicted; and (2) counsel

failed to challenge the court’s instructions to the jury or propose alternate instructions. In

July 2009, the district court denied the motion on the ground that the claims “fail[ed] for

lack of support in the record.” It subsequently denied his request for a certificate of

appealability. Bedford now appeals.2

                                              II

       Because the district court denied Bedford’s request for a COA, he may not appeal

the district court’s decision absent a grant of a COA by this court. 28 U.S.C.


       2
          Although Bedford did not file a notice of appeal until September 24, 2009, we
treat his motion for a certificate of appealability, filed on August 13, 2009, as the
functional equivalent of a timely notice of appeal. See Smith v. Barry, 502 U.S. 244,
248-49 (1992).


                                             -2-
§ 2253(c)(1)(B). To obtain a COA, Bedford must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires him to show “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) (quotation omitted).

       Bedford argues that his trial counsel was constitutionally deficient because counsel

stipulated that the gun Bedford was charged with possessing had traveled in interstate

commerce, a fact the government was required to prove under 18 U.S.C. § 922(g)(1).

On appeal, Bedford does not raise the claim that counsel was constitutionally ineffective

in failing to challenge the court’s instruction to the jury.

       To establish ineffective assistance of counsel under Strickland v. Washington, 466

U.S. 668 (1984), Bedford must demonstrate: (1) that his trial counsel was deficient such

that he was deprived of “reasonably effective assistance”; and (2) that counsel’s deficient

performance prejudiced his case, meaning that “there is a reasonable probability that, but

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

different.” Id. at 680, 694. Bedford must overcome the presumption that counsel’s

decision “might be considered sound trial strategy.” Id. at 689.

       Construing Bedford’s arguments liberally, see Haines, 404 U.S. at 520-21, we read

his brief to contend that counsel misrepresented to the court Bedford’s intention to


                                              -3-
stipulate that the weapon at issue had moved in interstate commerce. However, the

district court judge explained to Bedford the meaning of a stipulation, the facts to which

Bedford stipulated, and the consequences of the stipulation. The judge specifically asked

Bedford if he had any questions about the stipulation and told Bedford that the ultimate

decision about whether to stipulate should be made by Bedford and not his attorney.

Bedford—directly, not through counsel—then affirmatively entered his stipulation. Thus

the record contradicts Bedford’s argument.

       Bedford next asserts that his counsel was deficient for allowing him to enter the

stipulation. As the district court noted, however, there are no firearms manufacturers

located in Kansas. Thus the weapon must have moved in interstate commerce. It was not

unreasonable for Bedford’s counsel to stipulate to a fact that he knew the government

could establish with minimal effort.

       Bedford’s claim that his counsel was deficient such that his Sixth Amendment

rights were violated lacks factual support in the record. He thus has not made a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).




                                             -4-
                                        III

      For the foregoing reasons, we DENY Bedford’s application for a COA and

DISMISS the appeal.

                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




                                       -5-
