                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 2 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-6445
                                                  (D.C. No. 00-CV-1538-L)
 LEEROY SEALEY,                                         (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Mr. Sealey, a prisoner appearing pro se, seeks to appeal from the district

court’s order denying his motion to correct or vacate his sentence pursuant to 28

U.S.C. § 2255. Pursuant to a plea agreement, Mr. Sealey pled guilty to a one-

count information charging him with possession with intent to distribute more

than thirty grams of cocaine powder. I R. doc. 36, at 1; id. doc. 60, at 1. Mr.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
Sealey and the government both objected to an amended presentence report;

however, they withdrew their objections based upon a stipulation, resulting in a

guideline range of 210 to 240 months. Id. doc. 56. Mr. Sealey was sentenced to

210 months of imprisonment and three years of supervised release. Id. doc. 60, at

2-3. Mr. Sealey did not appeal his sentence.

      Mr. Sealey’s § 2255 motion was premised on two allegations: (1) that his

attorney failed to appeal his sentence despite Mr. Sealey’s request to do so upon

discovering that the amount of drugs used to calculate his offense level included

500 grams of cocaine base in his possession in 1996, and (2) that his plea was

made involuntarily because his attorney told him at the plea hearing that the

applicable sentence was ten-years to life imprisonment, when in fact it was zero

to twenty-years imprisonment. The district court denied Mr. Sealey’s motion as

procedurally barred, id. doc. 68, but did not determine whether a certificate of

appealability (“COA”) was appropriate. We consider Mr. Sealey’s appeal as if a

COA was denied. United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir.

2000) (citing Emergency General Order of October 1, 1996).

      A COA should issue only if Mr. Sealey has “made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We have reviewed




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Mr. Sealey’s COA application and brief, 1 the legal rulings in district court’s order

de novo, Kennedy, 225 F.3d at 1193, and the record. Having done so, we adopt

the district court’s analysis and hold that Mr. Sealey has failed to make the

requisite showing of a denial of a constitutional right. Mr. Sealey did not receive

ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687

(1984), and therefore cannot prevail upon a substantive claim on that theory, nor

show cause for his failure to appeal his sentence. United States v. Cook, 997 F.2d

1312, 1320 (10th Cir. 1993). At the time of Mr. Sealey’s plea hearing, his

attorney’s calculation of the applicable statutory sentencing range was in

accordance with our precedent. See United States v. Reyes, 40 F.3d 1148, 1150-

51 (10th Cir. 1994), abrogated by United States v. Santos, 195 F.3d 549, 552-53

(10th Cir. 1999), abrogated on other grounds by United States v. Jones, 235 F.3d

1231 (10th Cir. 2000). At sentencing, Mr. Sealey was aware that he could be

sentenced to no more than twenty years. II R. at 9-11. He also knew that his

sentence included his 1996 possession of 500 grams of cocaine base and

knowingly and voluntarily waived any objection to drug amounts. I R. doc. 41, at

3 (objecting to inclusion of drug amount); II R. at 9 (waiving objection).

Furthermore, Mr. Sealey knowingly and voluntarily waived his right to appeal


      1
         Mr. Sealey’s application and brief raise several new issues not presented
to the district court. We decline to consider those issues in this appeal. Walker
v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

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twice, both on the record. Id. at 11, 20-21. His allegation that he asked his

attorney to appeal eight days later is controverted by his attorney’s sworn

statement. I R. doc. 67, Wells aff. at 2. Regardless, the issue Mr. Sealey seeks to

raise is meritless.

       We GRANT IFP status, DENY the motion for appointment of counsel,

DENY a COA, and DISMISS the appeal.

                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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