                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    November 25, 2008
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                          No. 08-6139
                                                (D. Ct. Nos. CIV-08-00226-M and CR-
 MICHAEL GAITHER,                                             01-181-M)
                                                             (W.D. Okla.)
               Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       Petitioner-Appellant Michael L. Gaither, a federal prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal from the denial of his habeas

petition under 28 U.S.C. § 2255. We take jurisdiction under 28 U.S.C. § 1291, DENY

Mr. Gaither’s request for a COA, and DISMISS this appeal.

                                   I. BACKGROUND

       Mr. Gaither and two codefendants were convicted after a jury trial of various drug

offenses and sentenced under the then-mandatory United States Sentencing Guidelines.

His conviction and sentence were affirmed on direct appeal, see United States v. Ward, 96

Fed. Appx. 615 (10th Cir. 2004), but the United States Supreme Court vacated his

sentence and remanded to this court following United States v. Booker, 543 U.S. 220
(2005). Gaither v. United States, 543 U.S. 1102 (2005). On remand from this court, see

United States v. Ward, 143 Fed. Appx. 88 (10th Cir. 2005), the district court denied Mr.

Gaither’s request for a de novo sentencing hearing and found the same facts as it had in

the previous sentencing proceeding. It sentenced Mr. Gaither to 540 months’

imprisonment, to run concurrently to lesser sentences.

       Mr. Gaither filed a timely appeal of his sentence, arguing that (1) he was entitled

to a de novo determination upon his resentencing, and (2) that the court’s finding of facts

and application of the Sentencing Guidelines violated his Fifth and Sixth Amendment

rights. We affirmed his sentence, concluding specifically that Mr. Gaither was not

entitled to new factual findings on remand. See United States v. Davis, 213 Fed. Appx.

725, 728 (10th Cir. 2007). Mr. Gaither subsequently petitioned the Supreme Court for a

writ of certiorari, which was denied.

       In his § 2255 petition, Mr. Gaither again contends that the district court should

have conducted a new fact-finding proceeding during resentencing. He further argues

that the government knowingly used perjured testimony during his trial. The district

court denied the petition, concluding that law of the case precludes him from re-arguing

the sentencing issue, and that the second issue was not raised on direct appeal and is

therefore procedurally barred.

                                    II. DISCUSSION

       A habeas petitioner may not appeal from the denial of his petition without first

obtaining a COA. 28 U.S.C. § 2253(c)(1). We will issue a COA “only if the applicant

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has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

When the district court denies the petitioner’s claim on the merits, “[t]he petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When the petition is denied on procedural grounds, the petitioner must demonstrate “that

jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id.

       Mr. Gaither has failed to make this showing. Regarding the de novo sentencing

determination, and as we reasoned on direct appeal, there is no legal authority for the

proposition that a district court must “expand the scope of the resentencing beyond the

issue that resulted in the reversal and vacation of sentence.” United States v. Moore, 83

F.3d 1231, 1235 (10th Cir. 1996). Thus, the district court did not err in adopting its

previous findings and then applying the Guidelines in an advisory fashion on remand

after Booker.

       As to the prosecutorial-misconduct issue, we agree with the district court that this

claim is procedurally barred. A defendant’s failure to present an issue on direct appeal

bars him from raising the issue in a § 2255 petition “unless he can show cause excusing

his procedural default and actual prejudice resulting from the errors of which he

complains, or can show that a fundamental miscarriage of justice will occur if his claim is

not addressed.” United States v. Bolden, 472 F.3d 750, 751–52 (10th Cir. 2006)

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(quotations omitted). Mr. Gaither did not argue on direct appeal that the government used

perjured testimony at trial. Nor does Mr. Gaither explain in his § 2255 petition the reason

for failing to raise this issue previously. In his application for a COA, however, Mr.

Gaither asserts that this failure is attributable to his counsel’s ineffectiveness. Because

this argument is made for the first time in Mr. Gaither’s application for a COA and was

not before the district court as part of his habeas petition, and because Mr. Gaither does

not explain how he was prejudiced by the alleged misconduct, we cannot say that the

district court erred in finding the claim procedurally barred.

       Finally, Mr. Gaither contends in his application for a COA that the district court

erred in the method by which it calculated drug quantities for sentencing purposes, and

that his counsel was ineffective for failing to object to that method. To the extent these

allegations are distinct from his argument that the district court should have made new

findings of fact during resentencing, they are made for the first time as part of his request

for a COA and we therefore do not consider them as part of our analysis of the district

court’s resolution of his habeas claims.




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                               III. CONCLUSION

      For the aforementioned reasons, we DENY Mr. Gaither’s application for a COA

and DISMISS his appeal.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Circuit Judge




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