                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 11, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 UNITED STATES OF AM ERICA,

               Plaintiff-Appellee,
                                                         No. 07-3094
          v.                                   (D.C. Nos. 06-CV-3322-SA C and
                                                      04-CR-40003-SAC)
 TERRY L. CORBER,                                          (D . Kan.)

               Defendant-Appellant.



                                      OR DER *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Petitioner, a federal prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2255 habeas petition.

Petitioner contends that he received ineffective assistance of counsel in his trial

for distributing crack cocaine because his attorney had him testify in support of

an entrapment defense when the attorney should have known that the facts w ould

not sustain a jury instruction on entrapment. Petitioner points out that the trial

court’s decision not to instruct the jury on entrapment was affirmed by this court

on direct appeal. United States v. Corber, 159 F. App’x 54 (10th Cir. 2005). H e


      *
        This order is not binding precedent, except under the doctrines of law of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.
argues that he would not have testified had the attorney realized, as he should,

that the entrapment defense “could not prevail” and indeed that Petitioner’s

testimony would prejudice his defense. (Doc. 85, Petitioner’s M emorandum at

12.)

       The district court denied the habeas petition, ruling that defense counsel’s

strategy was not unreasonable under the standard set out in Strickland v.

Washington, 466 U .S. 668 (1984). The district court pointed out that defense

counsel’s legal arguments and citations to authority at trial and on appeal showed

that he was aware of the relevant law and of the facts of this case. Although

counsel’s attempts to submit an entrapment defense to the jury were unsuccessful,

the court concluded that this was insufficient to prove that counsel’s performance

was unreasonable. See id. at 688; Boyd v. Ward, 179 F.3d 904, 914 (10th Cir.

1999) (“For counsel’s performance to be constitutionally ineffective, it must have

been completely unreasonable, not merely wrong.”)

       To obtain a certificate of appealability, Petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).

In order to meet this burden, Petitioner must demonstrate “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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

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      W e have carefully reviewed Petitioner’s filings, the district court’s

disposition, and the record on appeal. Nothing in these materials raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the reasons set forth by the district court, we DENY Petitioner’s

request for a certificate of appealability and DISM ISS the appeal.

                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




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