                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAY 3 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 99-6369
                                                          (W.D. Okla.)
 GARRETT LERON FOX,                                (D.Ct. No. CIV-99-1058-T)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      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.



      Appellant Garrett Leron Fox, a federal prisoner appearing pro se, appeals


      *
          This order and judgment is not binding precedent except under the doctrines of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.
the district court’s decision dismissing his motion under 28 U.S.C. § 2255 to

vacate, set aside or correct his sentence. In so doing, Mr. Fox seeks a certificate

of appealability to appeal the district court’s denial of his § 2255 motion. 1 We

deny Mr. Fox’s request for a certificate of appealability and dismiss his appeal.



       In his § 2255 motion, Mr. Fox raised several issues, all based on grounds

his trial attorney rendered him ineffective assistance of counsel prior to and

during trial, and at sentencing. Mr. Fox also requested an evidentiary hearing for

the purpose of resolving his claims. In an exceedingly comprehensive order, the

district court dismissed the motion. Applying the controlling Supreme Court and

Tenth Circuit authority, the district court determined Fox: 1) never raised his

§ 2255 arguments in his direct appeal or made the requisite showing of cause and

prejudice for failing to raise them; and 2) failed to show his counsel’s

performance was constitutionally deficient or that the alleged deficient

performance prejudiced him.




       1
          The district court made no ruling on Mr. Fox’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
the notice of appeal as a denial of the certificate. See United States v. Riddick, 104 F.3d
1239, 1241 n.2 (10th Cir. 1997). Accordingly, we construe this appeal as Mr. Fox’s
request to this court for a certificate of appealability. Id.


                                               -2-
      On appeal, Mr. Fox raises the same issues addressed by the district court.

Ineffective assistance of counsel claims involve mixed questions of law and fact

which we review de novo. United States v. Prows, 118 F.3d 686, 691 (10th Cir.

1997). Applying this standard, we have conducted a thorough review of the

pleadings and record on appeal. For the purposes of judicial economy, we decline

to duplicate the district court’s comprehensive and correct analysis and resolution

of Mr. Fox’s claims. We hold Mr. Fox fails to show his counsel’s performance

was constitutionally deficient or that his counsel’s alleged deficient performance,

if any, prejudiced him.



      In order for Mr. Fox to obtain a certificate of appealability, he must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). He fails to do so. Accordingly, we deny Mr. Fox a certificate of

appealability for substantially the same reasons set forth in the district court’s

Order dated July 29, 1999, and DISMISS his appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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