                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 31, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,                   No. 13-5051
          v.                                          (N.D. Oklahoma)
 RONALD LEE STEWART,                        (D.C. Nos. 4:09-CR-00029-GKF-1 and
                                                 4:11-CV-00402-GKF-FHM)
                 Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


         Defendant Ronald Lee Stewart filed a motion for relief under 28 U.S.C.

§ 2255 in the United States District Court for the Northern District of Oklahoma.

The district court denied the motion. Defendant now seeks a certificate of

appealability (COA) from this court so that he may appeal the district court’s

decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of

§ 2255 relief). We deny a COA and dismiss the appeal.

I.       BACKGROUND

         Defendant pleaded guilty to a charge of bank robbery in 2009 and was

sentenced to 262 months’ imprisonment. We affirmed his conviction and

sentence on appeal. See United States v. Stewart, 378 F. App’x 773 (10th Cir.

2010).
      On June 27, 2011, Defendant filed a motion under 28 U.S.C. § 2255 to

vacate or correct his sentence, arguing (1) that trial counsel was ineffective at

sentencing because she failed to (a) file a motion for downward departure, (b)

challenge conditions of confinement that impeded his ability to assist in his

defense (in particular, his incarceration at a maximum-security facility without

telephone privileges or access to the law library, and the requirement that he wear

an electronic restraint system in the courtroom), (c) defend against his claims that

she was ineffective, (d) discuss the case or sentencing with him, (e) submit his

medical records to the court at sentencing, (f) submit letters from friends and

family requesting leniency, and (g) visit him before sentencing; (2) that the trial

court abused its discretion by not addressing his ineffective-assistance claims or

questioning defense counsel about them; and (3) that the trial court abused its

discretion by not ordering a competency evaluation of Defendant, even though he

had “obviously deficient mental competency,” R. at 48.

      Defendant appeals the denial of his § 2255 motion. His contentions in this

court are (1) that trial counsel was ineffective because she (a) failed to file a

motion for a downward departure, (b) refused to challenge the electronic restraint

placed on him, (c) did not defend against Defendant’s allegations that she was

ineffective, and (d) had a total breakdown in communication with him, including

no contact with him during the month before sentencing; (2) that the district court

abused its discretion in failing to hold an evidentiary hearing or question trial

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counsel about the allegations of ineffectiveness; and (3) that the district court

abused its discretion in not ordering a mental evaluation.

       Defendant also raises the new arguments that trial counsel was ineffective

because (1) she did not request Defendant’s medical records from the Bureau of

Prisons and other facilities from which he received treatment; (2) she failed to

discuss with him the contents of sealed documents she filed with the court; and

(3) she “agreed with the abuse” and “torture[]” that he suffered in county jail,

Aplt. Br. at 4.

II.    DISCUSSION

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

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

requires “a demonstration that . . . includes showing 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 marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

       To establish a claim of ineffective assistance of trial counsel, Defendant

first has the burden of overcoming “a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,” Strickland v.

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Washington, 466 U.S. 668, 689 (1984), by demonstrating that his counsel’s

performance “fell below an objective standard of reasonableness,” id. at 688.

Second, Defendant must demonstrate “that there is a reasonable probability that,

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

been different.” Id. at 694. We may consider the performance and prejudice

prongs in either order; and if Defendant fails to meet his burden on one prong, we

need not consider the other. See id. at 697.

      We do not address the arguments that Defendant raises for the first time in

this court because he “has not provided a reason to deviate from the general rule

that we do not address arguments presented for the first time on appeal.” United

States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (internal quotation marks

omitted). Of the claims raised both in this court and below, the district court was

unquestionably correct to dismiss them. Reasonable jurists would not debate that

Defendant had failed to show that his counsel’s conduct was objectively

unreasonable or prejudicial to him. Defendant advances no nonfrivolous reasons

supporting a downward departure, does not explain how wearing the electronic

restraint in the courtroom prejudiced him, and fails to explain how his counsel’s

decision not to defend herself against his allegations of ineffectiveness harmed

his defense. And Defendant’s allegation of lack of communication with counsel

is contradicted by his attorney’s affidavit (which was credited by the district

court) listing 13 meetings in five months, and Defendant’s own statement at his

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plea hearing that he had a “full opportunity to confer” with counsel. Rep.’s Tr. of

Proceedings at 11, United States v. Stewart, No. 4:09-cr-00029-GKF-1 (N.D.

Okla. Nov. 16, 2009) (Doc. No. 91). Finally, there was no reason for an

evidentiary hearing on counsel’s alleged ineffectiveness, and the court had no

reason to order a mental evaluation when both Defendant and his trial counsel

assured the court that he was competent to proceed.

      We also note that Defendant has filed a Motion for Production of

Documents, seeking records sealed in district court. See Mot. for Produc. of

Docs. at 1, United States v. Stewart, No. 13-5051 (10th Cir. June 27, 2013).

Defendant did not file in district court a motion to unseal the documents until

more than two weeks after he had filed his notice of appeal. The court dismissed

the motion without ruling on the merits because it no longer had jurisdiction to

consider the matter. See United States v. Madrid, 633 F.3d 1222, 1226 (10th Cir.

2011) (“Typically, the filing of a notice of appeal is an event of jurisdictional

significance—it confers jurisdiction on the court of appeals and divests the

district court of its control over those aspects of the case involved in the appeal.”

(brackets and internal quotation marks omitted)). We deny the motion filed in our

court because Defendant did not properly raise the matter in district court, and we

see no reason to deviate from our general rule that “an untimely motion, by itself,

is not sufficient to preserve an issue for appellate review.” Lyons v. Jefferson

Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993). Although Defendant states

                                          -5-
that he learned of the sealed records “only recently,” Mot. for Produc. of Docs. at

1, Stewart, No. 13-5051, the docket sheet had noted the sealing for some time

and Defendant has not explained why he could not have learned of the sealing

earlier.

III.   CONCLUSION

       We DENY the application for COA, DENY the Motion for Production of

Documents, and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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