                                                                                     FILED
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit

                         UNITED STATES COURT OF APPEALS                         December 2, 2009

                                     TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                                 Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                            No. 09-8059
                                                   (D.C. Nos. 2:07-CV-00139-CAB and
 RON ALONZO BANKS,                                       2:04-CR-00108-CAB-1)
                                                                (D. Wyo.)
           Defendant-Appellant.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.


       Defendant Ron Alonzo Banks seeks a certificate of appealability (COA) from this

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

sentence pursuant to 28 U.S.C. § 2255. Because Mr. Banks has failed to meet the

standards required before this court can issue a COA, we DENY his request and

DISMISS the appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
I.       BACKGROUND

         After initially pleading guilty to drug-trafficking and weapons-possession charges,

Mr. Banks withdrew his plea and proceeded to trial. In 2005, a jury convicted Mr. Banks

of five counts of cocaine-related offenses and one count of carrying a firearm during and

in relation to a drug-trafficking offense. The district court sentenced him to 151 months

for the drug charges and 60 months for the firearm charge, to run consecutively. The

following year, this court affirmed his conviction on direct appeal. United States v.

Banks, 451 F.3d 721 (10th Cir. 2006). On September 18, 2008, following the decision by

the United States Supreme Court in Kimbrough v. United States, 552 U.S. 85 (2007), the

district court resentenced Mr. Banks, reducing his sentence on the drug counts from 151

months to 120 months, to run consecutively to the unaltered 60-month sentence for the

firearm count.

         Mr. Banks filed the instant § 2255 motion in the district court on June 25, 2007.

In his motion, Mr. Banks identified three grounds for relief: that he received ineffective

assistance of counsel during plea negotiation, trial, sentencing, and direct appeal; that

there was insufficient evidence to support his conviction for carrying a firearm during a

drug crime; and that the district court improperly sentenced him by applying the

Sentencing Guidelines in a mandatory fashion in violation of United States v. Booker,

543 U.S. 220 (2005), and that his counsel was ineffective for failing to object to this

error.


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       The district court concluded that no evidentiary hearing was necessary, and held

that Mr. Banks failed to show that his counsel performed deficiently—let alone “that

counsel’s errors were so serious so as to deprive the defendant of a fair trial,” see

Strickland v. Washington, 466 U.S. 668, 687 (1984)—and so declined to order relief on

his ineffective-assistance claims. The district court also concluded that his claim of

insufficient evidence had already been addressed on direct appeal, see, e.g., United States

v. Cook, 997 F.2d 1312, 1318 n.6 (10th Cir. 1993) (holding that issue addressed on direct

appeal “is not cognizable under § 2255”), and his claim of a Booker violation was

procedurally defaulted by his failure to raise it on direct appeal, see, e.g., United States v.

Hollis, 552 F.3d 1191, 1193 (10th Cir.) (holding that defendant’s failure to present issue

on direct appeal precludes him from challenging the issue in a § 2255 motion unless the

defendant can establish cause and prejudice excusing his failure to raise it on direct

appeal), cert. denied, 129 S. Ct. 2419 (2009). The district court also denied Mr. Banks a

COA, and denied his motion to proceed in forma pauperis on appeal.

II.    DISCUSSION

       Mr. Banks now seeks a COA from this court only on his claims of ineffective

assistance of counsel. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge

issues a certificate of appealability, an appeal may not be taken to the court of appeals

from . . . the final order in a proceeding under section 2255.”). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). To make a “substantial showing” that a constitutional right was
                                               3
denied, Mr. Banks must show “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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)).

       Mr. Banks makes a number of arguments for the first time on appeal. While his

arguments are often unclear, we note that he is proceeding on this appeal pro se and

construe his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Among the arguments Mr. Banks raises for the first time in this court are claims that his

counsel provided ineffective assistance by failing to challenge the district court’s

jurisdiction over him as a member of the United States Air Force; by failing to protect his

constitutional rights as a service member during his proffer with the Assistant United

States Attorney; by failing to move to suppress statements he made at his bond hearing

because he believed that a superior officer had ordered him to cooperate with law

enforcement; by failing to argue on appeal that a government witness offered perjured

testimony; and by failing to object when the government “used” Mr. Banks’ withdrawn

guilty plea at his trial.1 Even in light of our obligation to construe Mr. Banks’ filings


1
  It is unclear from Mr. Banks’ brief whether the government introduced evidence of the
withdrawn guilty plea at trial, and the record does not contain a transcript of the trial. At
any rate, Mr. Banks did not argue, either on direct appeal or in his § 2255 motion filed in
the district court, that the government improperly introduced evidence at his trial of his
withdrawn guilty plea.

                                              4
liberally, we cannot identify any extraordinary circumstances that exist that would permit

us to consider these arguments for the first time on appeal. See Turner v. Pub. Serv. Co.

of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we

will not consider arguments raised for the first time on appeal.”). Accordingly, “we find

no reason to deviate from the general rule that we do not address arguments presented for

the first time on appeal,” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002),

and decline to issue a COA on any of these issues.

       On appeal, Mr. Banks also argues that his counsel provided ineffective assistance

by failing to object to his indictment as overbroad as to the firearm count. In district

court, he raised this as a separate claim from his ineffective-assistance claims, but on

appeal he now contends that this was part of his ineffective-assistance claims. Mr. Banks

urges that a liberal construction of his filings requires us to recognize this claim as an

ineffective-assistance claim because his “entire 2255 motion was based on ineffective

assistance at every stage of the proceedings.” (Apt.’s Br. at 15.) However, a review of

his filing in district court reveals that Mr. Banks did not bring this as an ineffective-

assistance claim at all; while all of the ineffective-assistance claims were listed in his first

ground for relief, ground two argued that “Ron Banks is innocent of the gun charge for

which his sentence was severely lengthened” and did not so much as mention ineffective

assistance. (§ 2255 Mot. at 23.) Even liberally construing the references to the

indictment contained in his § 2255 motion as challenging the indictment as overbroad,

nothing in his motion raised this particular ineffective-assistance claim. It is only now,
                                               5
after the district court concluded that he could not bring this claim in his § 2255 motion

because it had already been decided on direct appeal, that Mr. Banks seeks to frame that

ground as an ineffective-assistance claim. Mr. Banks is thus barred from making this

argument for the first time on appeal. Mora, 293 F.3d at 1216.

       Mr. Banks does raise several ineffective assistance claims in his petition for a

COA that he also raised below. Specifically, Mr. Banks claims that he was provided

ineffective assistance by counsel’s alleged failure to call witnesses on Mr. Banks’ behalf;

by failing to make the proper arguments on direct appeal; by failing to subpoena essential

documents; and by failing to present a complete record of all relevant evidence on appeal.

The district court concluded that these arguments were conclusory and unsupported by

factual allegations, and we agree. Mr. Banks has not even made clear precisely what

missteps his attorneys made, nor has he shown “that counsel’s errors were so serious so

as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687. For example, Mr.

Banks claims that if his attorney had acquired his military training file, then “the jury

would have [had] to analyze[] the events testified to from Banks’ perspective” (Apt.’s Br.

at 9), but he never clearly explained what the file contained and how his attorney’s failure

to obtain the file deprived him of a fair trial. Such arguments are insufficient even for a

pro se litigant. 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 supporting factual averments.” (internal citation omitted)).
                                              6
       Finally, Mr. Banks asserts at several points that the district court should have

ordered an evidentiary hearing. “In response to a § 2255 motion, the district court must

hold an evidentiary hearing on the prisoner’s claims unless the motion and files and

records of the case conclusively show that the prisoner is entitled to no relief.” United

States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quotations omitted). For the reasons

given above, Mr. Banks’ motion and supporting materials conclusively establish that Mr.

Banks is not entitled to any relief. Accordingly, the district court did not abuse its

discretion in denying an evidentiary hearing. See id. at 121 (applying abuse of discretion

standard to district court’s denial of evidentiary hearing).

III.   CONCLUSION

       In sum, we conclude that reasonable jurists could not debate the propriety of the

district court’s dismissal of Mr. Banks’ § 2255 petition. We therefore DENY Mr. Banks’

application for a certificate of appealability and DISMISS the appeal. We also GRANT

Mr. Banks’ motion to proceed in forma pauperis. Finally, because the supplemental

material offered by Mr. Banks in his motion to supplement the record would not alter our

decision, his motion to supplement the record is DENIED.



                                           ENTERED FOR THE COURT



                                           David M. Ebel
                                           Circuit Judge

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