                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                              August 12, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-6119
                                                   (D.C. Nos. 5:15-CV-00877-HE and
THOMAS WAYNE GRUVER,                                     5:13-CR-00224-HE-1)
                                                              (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

                ORDER DENYING CERTIFICATE OF APPEALABILITY*

                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Thomas Wayne Gruver, a federal prisoner proceeding pro se,1 seeks a certificate

of appealability (“COA”) to appeal from the denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (requiring a

COA to appeal an order denying a § 2255 motion). Mr. Gruver also requests leave to




       * This order is not binding precedent, except under the doctrines of law of the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.
       1
        Because Mr. Gruver is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we

deny both requests and dismiss this matter.

                                   I. BACKGROUND

       In 2013, Mr. Gruver pled guilty to possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The Presentence Investigation

Report (“PSR”) noted the mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(i) was 60

months of imprisonment. The PSR also detailed Mr. Gruver’s criminal history, noting he

had previously pled guilty to making a life-threatening phone call to his ex-wife. It

additionally noted former charges brought against him and dismissed.

       At sentencing, neither party objected to the PSR. The Government recommended

60 months of imprisonment with 60 months of supervised release. The district court

adopted the findings of the PSR. After considering the sentencing factors in 18 U.S.C.

§ 3553(a), the court varied upward by 84 months, resulting in a sentence of 144 months

of imprisonment. We affirmed Mr. Gruver’s sentence on direct appeal. See United

States v. Gruver, 576 F. App’x 864, 868 (10th Cir. 2014) (unpublished).

       Mr. Gruver subsequently filed a § 2255 motion to vacate, set aside, or correct his

sentence, asserting he had received ineffective assistance of trial counsel. Relevant here,

he asserted counsel (1) misinformed him during the plea bargain stage about the sentence

he would face if he pled guilty, and (2) failed to challenge inaccuracies in the PSR’s

statement of his criminal history. The district court denied Mr. Gruver’s motion,

concluding he failed to point to any inaccuracies in counsel’s advice or the PSR’s

summary of his criminal history.

                                           -2-
                                    II. DISCUSSION

       To obtain a COA, Mr. Gruver must make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and show that “reasonable jurists could

debate whether . . . 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) (quotations omitted). Mr. Gruver fails to make

this showing. We therefore deny a COA.

       To establish ineffective assistance of counsel, Mr. Gruver must show (1) “that

counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Mr. Gruver asserts two deficiencies in counsel’s performance. First, he argues

counsel “misinformed [him] of the ‘actual’ penalty he faced” during the plea bargaining

stage. Aplt. Br. at 2. He suggests counsel advised him that if he pled guilty, he would

receive a maximum of 60 months of imprisonment. But according to Mr. Gruver’s

§ 2255 motion, counsel advised him a guilty plea “could very well” result in the same

sentence he might receive if he went to trial—in other words, that a guilty plea would not

produce a guaranteed sentence. ROA Vol. I at 72. As the district court noted, nothing in

this advice was inaccurate. Mr. Gruver’s first theory of deficient performance lacks

support. The district court’s rejection of this theory is accordingly beyond debate.

       Second, Mr. Gruver asserts counsel failed to contest inaccurate statements in the

PSR’s statement of his criminal history. But Mr. Gruver fails to specify how anything in

the PSR was inaccurate. Mr. Gruver’s second theory of deficient performance again

                                            -3-
lacks support. The district court’s rejection of this theory of ineffective assistance of

counsel is accordingly beyond debate.

                                   III. CONCLUSION

       For the foregoing reasons, we deny a COA and dismiss this matter.2 We also deny

Mr. Gruver’s request to proceed ifp.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




       2
         Mr. Gruver also raises new challenges for the first time in his brief to this court.
He argues the court’s decision to impose a sentence higher than 60 months of
imprisonment violated his due process rights. He also raises a new double jeopardy
challenge, arguing the Government “was without jurisdiction to prosecute the instant
case, because the same criminal conduct was utilized in the State of Oklahoma’s
jurisdiction in relation with a felony prosecution.” Aplt. Br. at 3. “[A]bsent
extraordinary circumstances, [this court] will not consider arguments raised for the first
time on appeal. This is true whether an appellant is attempting to raise a bald-faced new
issue or a new theory on appeal that falls under the same general category as [a previous]
argument . . . . ” McDonald v. Kinder–Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002)
(quotations and citation omitted).

                                             -4-
