                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          DEC 7 2004
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee.
                                                        No. 04-5086
v.                                                (D.C. Nos. CV-03-658-C
                                                     and CR-99-33-C)
STEPHEN STERLING THOMAS, sued                           (N.D. Okla.)
as Stephen Thomas,

             Defendant-Appellant.




                                     ORDER


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.



      This is a pro se 28 U.S.C. § 2255 prisoner appeal. Appellant was convicted

by jury of conspiracy to possess with intent to distribute cocaine and cocaine base

in violation of 21 U.S.C. § 846. He was sentenced to 240 months of

imprisonment followed by a three-year term of supervised release and a $5,000

fine. Appellant’s conviction and sentence were affirmed by this court on direct

appeal in United States v. Williams, No. 00-5244, 2002 WL 1815916 (10th Cir.

Aug. 8, 2002). The Supreme Court subsequently denied Mr. Thomas’ petition for

a writ of certiorari. Thomas v. United States, 537 U.S. 1038 (2002).
       In his § 2255 motion, Appellant raised three ineffective assistance of

counsel claims: 1) failure to object to or challenge the applicability of Guideline

provision 2D1.1(b); 2) failure to argue that a single conspiracy cannot stand

where more than one conspiracy was proved at trial; and 3) failure to argue the

applicability of Guideline provision 2D1.1 n.6. The district court, in a well-

reasoned opinion, denied Appellant’s motion holding that Mr. Thomas failed to

allege any fact showing that his counsel’s conduct was unreasonable as the term is

defined in Strickland v. Washington, 466 U.S. 668, 688 (1984). A claim for

ineffective assistance of counsel requires Appellant to show that 1) his attorney’s

“performance was deficient . . . [in that he] made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and 2) “the deficient performance prejudiced the defense.” Id. at

687.

       The district court did not act on the issue of certificate of appealability;

therefore, it is deemed denied. Appellant then applied to this court for a

certificate of appealability. In order for this court to grant a certificate of

appealability, Appellant must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2)(2000). To do so, he 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


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issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

      Appellant’s main argument is that his sentence should have been reduced

like that of his co-defendant whose sentence was vacated and remanded on direct

appeal in United States v. Williams, No. 00-5244, 2002 WL 1815916 (10th Cir.

Aug. 8, 2002). The district court fully addressed this argument and decided that

Appellant could not meet the second element of the Strickland test–showing

prejudice for his attorney’s failure to raise this issue on direct appeal–because it

was not reasonably probable that his sentence would have been reduced if he were

resentenced pursuant to the rationale from Williams. District Court Order,

June 7, 2004, at 7.

      We have carefully reviewed Mr. Thomas’ brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Appellant’s brief raises an issue which meets our standards for the grant of a

certificate of appealability. For substantially the same reasons as set forth by the

district court in its Order of June 7, 2004, we cannot say “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner.” Slack, 529 U.S. at 484.

      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. Appellant’s motion for leave to proceed without


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prepayment of fees is GRANTED.

                                       Entered for the Court



                                       Monroe G. McKay
                                       Circuit Judge




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