                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 7 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                Nos. 01-6104 and 01-6199
v.                                            (Western District of Oklahoma)
                                                (D.C. No. 00-CV-2118-A)
ERIC WAYNE DOTSON,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.



      After examining Appellant’s brief and the 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.




      *
       This order and judgment is not binding precedent, except under the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.
       The case is before this court on Eric Wayne Dotson’s request for a

certificate of appealability (“COA”). Dotson seeks a COA so he can appeal the

district court’s denial of his motion to vacate, set aside, or correct sentence

brought pursuant to 28 U.S.C. § 2255.       See 28 U.S.C. § 2253(c)(1)(B) (providing

that the appeal of a final order disposing of a § 2255 motion may not be taken to

a court of appeals unless a COA is issued). Because Dotson has not made “a

substantial showing of the denial of a constitutional right,” this court     denies

Dotson’s request for a COA and       dismisses the appeal.     See id. § 2253(c)(2).

       Dotson was charged in a three-count indictment with robbery in violation

of 18 U.S.C. § 1951; carrying a firearm during a crime of violence in violation of

18 U.S. C. § 924(c)(1); and transporting at least $5,000 worth of stolen property

in interstate commerce in violation of 18 U.S.C. § 2314. Dotson represented

himself at his trial and a federal public defender was appointed as standby

counsel. Dotson was convicted on all three counts. On direct appeal, this court

affirmed the judgment of conviction.       See United States v. Dotson     , No. 99-6436,

2000 WL 1820375 (10th Cir. Dec. 12, 1996) (unpublished disposition).

       Dotson filed the § 2255 motion on December 27, 2000. In his motion,

Dotson raised four issues: (1) his trial counsel and his standby counsel were

ineffective; (2) he was coerced into making statements to officers; (3) he had

inadequate time to prepare for trial; and (4) his appellate counsel was ineffective.


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      The district court first concluded that Dotson could not base an ineffective

assistance of counsel claim on his own   pro se performance at trial.   See McKaskle

v. Wiggins , 465 U.S. 168, 177 n.8 (1984) (“[A] defendant who exercises his right

to appear pro se cannot thereafter complain that the quality of his own defense

amounted to a denial of effective assistance of counsel.” (quotations omitted)).

The court also concluded that claims of ineffective assistance of standby counsel

cannot be brought by pro se defendants. S ee id . at 183 (“A defendant does not

have a constitutional right to choreograph special appearances by counsel.”).

Even assuming that Dotson could bring an ineffective assistance claim regarding

his standby counsel, his conclusory allegations concerning the performance of

standby counsel are wholly insufficient to support his claim that counsel’s

performance was deficient and that he was prejudiced by the alleged deficient

performance. See Strickland v. Washington , 466 U.S. 668, 687 (1984) (holding

that a defendant must demonstrate that counsel’s representation fell below an

objective standard of reasonableness, and that he was prejudiced by counsel’s

deficient performance);   United States v. Fisher , 38 F.3d 1144, 1147 (10th Cir.

1994) (rejecting ineffective assistance of counsel claims as “conclusory in nature

and without supporting factual averments”).

      Dotson also alleged that his due process rights were violated because he

was coerced into making statements to investigating officers. In addition, he


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claimed his standby counsel was ineffective for failing to subpoena other

incriminating statements because they would have illustrated the coercion. The

district court addressed this claim, noting that Dotson’s § 2255 motion contained

only vague assertions and that he had failed to demonstrate how the statements

were coerced or how he was prejudiced by standby counsel’s failure to subpoena

the statements.   See id.

      The district court next considered Dotson’s claim that his due process

rights were violated because he did not have adequate time to prepare for his trial

and was unfamiliar with the Federal Rules of Criminal Procedure. The district

court noted that Dotson voluntarily, knowingly, and intelligently waived his right

to counsel. See Dotson , 2000 WL 1820375, at * 2. The district court concluded

that Dotson, having been adequately informed of the inherent risks of proceeding

pro se, could not raise a due process claim based on the alleged trial difficulties.

       Finally, the district court considered Dotson’s claims that his appellate

counsel was ineffective. The district court addressed each alleged instance of

constitutionally ineffective performance and determined that the allegations

either lacked merit or were conclusory and unsupported.     See Strickland , 466

U.S. at 687; Fisher 38 F.3d at 1147. The district court, thus, entered judgment

denying Dotson’s § 2255 motion. Dotson then sought and was denied a COA.




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       Dotson is not entitled to a COA unless he can make “a substantial showing

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

make that showing by demonstrating that: (1) the issues raised are debatable

among jurists, (2) a court could resolve the issues differently, or (3) that the

questions presented deserve further proceedings.       See Slack v. McDaniel , 529

U.S. 473, 483-84 (2000). This court has reviewed Dotson’s request for a COA,

Dotson’s appellate brief, the district court’s order, and the entire record before

us. Our review demonstrates that the district court committed no reversible error

in its disposition of Dotson’s § 2255 motion. Thus, the issues raised in the

motion are not deserving of further proceedings, debatable among jurists of

reason, or subject to different resolution on appeal. Accordingly, Dotson has

failed to make the required substantial showing of the denial of a constitutional

right and is not entitled to a COA.    See 28 U.S.C. § 2253(c)(1)(B).

       This court denies Dotson’s request for a COA for substantially those

reasons set forth in the district court’s order dated March 2, 2001, and    dismisses

this appeal. Dotson’s motion to proceed       in forma pauperis on appeal is denied .

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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