                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      November 8, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                 Plaintiff - Appellee,                    No. 06-5139
          v.                                           (N. D. Oklahoma)
 M ICH AEL A NTH ONY PHILLIPS,                   (D.C. Nos. 06-CV-254-HDC
                                                    and 02-CR-133-HDC)
                 Defendant - Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      M ichael Anthony Phillips seeks a certificate of appealability (COA) to

appeal the district court’s denial of his application for relief under 28 U.S.C.

§ 2255. See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal denial of habeas

relief). In his application M r. Phillips argued that his sentence is unconstitutional

under United States v. Booker, 543 U.S. 220 (2005), and that he received



      *
       After examining the briefs and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
ineffective assistance of counsel when his trial attorney failed to object to his

sentence on constitutional grounds. The district court entered judgm ent against

him and denied his request for a COA. W e deny a COA and dismiss the appeal.

      M r. Phillips was convicted of possession of a firearm by a convicted felon

on M arch 5, 2003, and was sentenced to a prison term of 65 months on June 16,

2003. W e affirmed his conviction and sentence on April 13, 2004, see United

States v. Phillips, 94 F. App’x 796, 803 (10th Cir. 2004) (unpublished opinion),

but the U nited States Supreme Court vacated the judgm ent and remanded the case

in light of Booker. On remand we engaged in plain-error review because

M r. Phillips had not argued in district court that his sentence was

unconstitutional. See United States v. Phillips, 133 F. App’x 481, 483 (10th Cir.

2005) (unpublished opinion). W e affirmed the sentence, observing that “there is

no basis for us to assume Phillips would receive a lesser sentence if he w ere

resentenced under a discretionary sentencing regime in which the district court is

required to consider the guidelines when it exercises its discretion.” Id. at 484

(internal quotation marks and brackets omitted). On M ay 11, 2006, M r. Phillips

filed his § 2255 application in the United States D istrict Court for the N orthern

District of Oklahoma.

      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing that reasonable jurists could

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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). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      M r. Phillips first argues that a four-level sentence enhancement violates his

Sixth A mendment rights under Booker. But on direct appeal we already

determined that he is not entitled to relief on this claim. See Phillips, 133 F.

App’x at 483–84. “Absent an intervening change in the law of a circuit, issues

disposed of on direct appeal generally will not be considered on a collateral attack

by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789, 791

(10th Cir. 1989). Reasonable jurists could therefore not debate the district court’s

denial of this claim.

      M r. Phillips next argues that he received ineffective assistance of trial

counsel because his counsel failed to object to his sentence as unconstitutional.

To prevail on an ineffective-assistance-of-counsel claim, M r. Phillips must show

that his “counsel’s representation fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694. “[W]e have

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rejected ineffective assistance claims where a defendant faults his former counsel

not for failing to find existing law, but for failing to predict future law and have

warned that clairvoyance is not a required attribute of effective representation.”

Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (internal quotation marks

omitted).

      The district court noted that M r. Phillips had been sentenced even before

certiorari was granted in Blakely v. Washington, 542 U.S. 296 (2004), the

forerunner to Booker, on October 20, 2003. See Blakely v. Washington, 540 U.S.

965 (2003). For his attorney to anticipate Booker at the time of his sentence

would have been a remarkable feat; failure to do so was hardly objectively

unreasonable. Reasonable jurists could not debate the district court’s denial of

this claim. See Slack, 529 U.S. at 484.

      W e DENY M r. Phillip’s application for a COA and DISM ISS the appeal.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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