                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   JUN 9 2003
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 02-7113
 FREDERICK ALLEN THOMPSON,                               (D.C. No. 02-CV-133-S)
                                                            (E.D. Oklahoma)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Frederick Allen Thompson, a federal prisoner appearing pro se, sought

a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C.

§ 2255 motion. On February 27, 2003, this court granted Thompson a COA on two


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The 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.
issues: (1) whether Thompson received ineffective assistance of trial counsel because

counsel failed to force the government to turn over exculpatory evidence; and (2) whether

he received ineffective assistance of trial counsel because counsel failed to obtain original

audio/video tapes of controlled drug buys. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm. We deny a COA on the remaining issues.

       Thompson was convicted of drug conspiracy, in violation of 21 U.S.C. § 846, and

distribution of cocaine base, in violation of 21 U.S.C. § 841(a), and was sentenced to a

term of imprisonment of 121 months. His conviction was affirmed on direct appeal, see

United States v. Thompson, 237 F.3d 1258 (10th Cir. 2001), and the Supreme Court

denied certiorari, see Thompson v. United States, 532 U.S. 987 (2001). In his § 2255

motion, Thompson asserted (1) denial of his constitutional right to a fast and speedy trial;

(2) selective prosecution; (3) vindictive prosecution; (4) insufficient evidence to prove

conspiracy; (5) ineffective assistance of trial counsel; and (6) ineffective assistance of

appellate counsel. The district court denied relief on the first four claims because they

should have been raised on direct appeal. See United States v. Khan, 835 F.2d 749, 753-

54 (10th Cir. 1987) (holding § 2255 is not available to test the legality of matters that

should have been raised on direct appeal). The district court applied the two-part test

enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and rejected the ineffective

assistance of counsel claims.

       Given Thompson’s pro se status, we construe his contentions liberally. See Haines


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v. Kerner, 404 U.S. 519, 520-21 (1972). Thompson’s ineffective assistance of counsel

claims present mixed questions of law and fact which we review de novo. Fisher v.

Gibson, 282 F.3d 1283, 1290 (10th Cir. 2002). Under Strickland, Thompson “must show

that counsel’s performance was deficient . . . . Second, [he] must show that the deficient

performance prejudiced the defense.” 466 U.S. at 687. Prejudice is shown by

demonstrating “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. Our review of

counsel’s performance is “highly deferential.” Id. at 689.

       Thompson argues his trial counsel “failed to force the government to turn over

‘exculpatory’ evidence, i.e., statements of ‘all’ parties,” in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Aplt. Br. at 12. To establish a Brady violation, Thompson

must demonstrate “(1) the prosecution suppressed evidence; (2) the evidence was

favorable to the accused; and (3) the evidence was material to the defense.” Scott v.

Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002) (internal quotation omitted). Thompson

fails to identify the evidence the government allegedly withheld or how that evidence was

favorable to his defense. A mere conclusory allegation does not establish a Brady

violation and is insufficient to support an ineffective assistance of counsel claim. See

United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (“Although we must liberally

construe Defendant’s pro se petition, we are not required to fashion Defendant’s

arguments for him where his allegations are merely conclusory in nature and without


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supporting factual averments.”).

       Thompson also contends his trial counsel was deficient in failing to obtain the

original audio/video tapes of controlled drug buys to prove the government “doctored”

the copies of the tapes. Before the tapes were admitted into evidence at trial, a special

agent with the Federal Bureau of Investigation testified that the tapes were true and

accurate copies of the originals, but they had been “altered to consolidate down time.”

ROA VI at 64. The tapes were admitted and played to the jury without objection from

defense counsel. Thompson does not explain how the tapes were “doctored” or how his

counsel’s allegedly deficient performance prejudiced his defense. Again, his allegations

are merely conclusory and are insufficient to support his ineffective assistance claim. See

Fisher, 38 F.3d at 1147.

       AFFIRMED. Thompson’s request for a COA on the remaining issues is DENIED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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