                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS May 21, 2014

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 14-1054
v.                                          (D.C. Nos. 1:11-CV-02850-WYD and
                                                  1:09-CR-00157-WYD-1)
ALTON JOHN SMITH, also known as                        (D. Colorado)
Austin O. Ikeme,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before LUCERO, ANDERSON, and PHILLIPS, Circuit Judges.


      Alton John Smith, proceeding pro se, seeks a certificate of appealability

(COA) to appeal the district court’s denial of his motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255. A COA is a jurisdictional

prerequisite to our review of the district court’s denial of a § 2255 motion, and it

will issue only if the applicant makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. 2253(c)(1)(B) and (c)(2). He has not done so.




      *
       This order is not binding precedent, except under the doctrines of law of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.
Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we deny the

application and dismiss this matter.

      In 2010 a jury found Mr. Smith guilty of defrauding Wells Fargo Bank

(“Wells Fargo”) and Security Service Federal Credit Union (“Security Service”),

and he was subsequently sentenced to 60 months of imprisonment. On direct

appeal this court affirmed his conviction and sentence. United States v. Smith,

431 Fed. Appx. 617 (10th Cir. 2011) (unpublished). The facts of the case are

extensively detailed in that decision and it is unnecessary to repeat them here.

      On March 6, 2012, Mr. Smith filed an amended § 2255 motion in the

district court. In it he asserted various issues, including, as relevant here, an

ineffective assistance of counsel claim in which he argued that his counsel failed

to investigate and show that Colorado Mortgage Alliance and Centennial Leasing

and Sales, two subsidiaries of Wells Fargo and Security Service that had handled

part of his fraudulently obtained loans, were not FDIC insured and did not qualify

as “financial institutions” under 18 U.S.C. § 1344. In an extensive opinion issued

on December 18, 2013, the district court denied the motion, and subsequently

denied Mr. Smith’s motion to proceed in forma pauperis (“ifp”) on appeal.

      In his Combined Opening Brief and Application for a Certificate of

Appealability filed in this court, Mr. Smith does not assert an ineffective

assistance of counsel claim. Rather, he states that “The sole issue raised is

whether the District Court had federal jurisdiction in this case, due to the

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government’s failure to establish that the defrauded entities Colorado Mortgage

Alliance (“CMA”) and Ferreno Chrysler Jeep Dodge (FCJD), were FDIC

Insured.” Br. at 3. In short, Mr. Smith now attempts to raise a sufficiency of the

evidence claim. For this and other reasons he faces multiple procedural bars.

However, in the interests of brevity we need only point out that this court

addressed this argument on direct appeal and rejected it as frivolous. We stated:

            While Colorado Mortgage Alliance and Centennial Leasing
      and Sales may have initially furnished Mr. Smith the application
      forms and otherwise facilitated his loans, neither Colorado Mortgage
      Alliance nor Centennial Leasing and Sales ultimately loaned him the
      money from which a loss occurred due to Mr. Smith’s fraudulent
      conduct. Therefore, the government was not required to provide
      evidence showing Colorado Mortgage Alliance and Centennial
      Leasing and Sales were “FDIC-insured” or “financial institutions.”
      Accordingly, even if considered on appeal, Mr. Smith’s pro se
      argument is frivolous.

Smith. 431 Fed. Appx. at 627-28.

      This decision stands as the law of this case relative to the issue Mr. Smith

attempts to raise again here. See Abernathy v. Wandes, 713 F.3d 538, 549, 550

n.11 (10th Cir. 2013). And, even if we were generously to recast his contention

in terms of an ineffective assistance of counsel claim it would still be unavailing

since counsel is not ineffective for failing or refusing to pursue a frivolous issue.

See Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002).




                                          -3-
      Accordingly, we DENY Mr. Smith’s motion to proceed ifp, DENY his

application for a COA, and DISMISS this matter.

                                       Entered for the Court


                                       Stephen H. Anderson
                                       Circuit Judge




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