                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           APR 8 2003
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

         v.                                              No. 02-8083
                                                (D. Ct. Nos. 99-CV-237-B and
    JAY VAN JACKSON, III, also known                     96-CR-78-B)
    as Little Jay,                                        (D. Wyo.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HOLLOWAY, and McKAY, Circuit
Judges.


        After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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 This order and judgment is not binding precedent, except under the doctrines of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. This 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.
                                   I.    Background

      Petitioner Jay Van Jackson, III, was convicted for conspiracy to receive,

possess, and transport stolen firearms, in violation of 18 U.S.C. § 371; possession

of a firearm in relation to a drug trafficking felony, in violation of 18 U.S.C.

§ 924(c); and being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). This court affirmed his conviction and sentence on direct appeal.

United States v. Jackson , 161 F.3d 18 (Table) (10th Cir. 1998). He now seeks a

certificate of appealability (COA) to pursue his appeal of the district court’s

denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2255. Determining that Mr. Jackson has not met the statutory requirements, we

deny his application and dismiss the appeal.

                                   II.   Discussion

                              A.    Standard of Review

      We first note that pro se complaints are held “to less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520-21 (1972). In reviewing the denial of a § 2255 motion, we review for clear

error the district court’s factual findings, and we review legal conclusions de

novo. United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). To be entitled

to a COA, Mr. Jackson must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this showing by


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establishing 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

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

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

                                      B.    Analysis

       Mr. Jackson raises a number of arguments in his habeas petition not raised

on direct appeal. When considering a habeas petition, we are barred from

considering claims that were not raised on direct appeal, absent a showing of

cause and prejudice, or a miscarriage of justice.      United States v. Allen , 16 F.3d

377, 378 (10th Cir. 1994). This bar does not, however, apply to an ineffective

assistance of counsel claim.    United States v. Galloway , 56 F.3d 1239, 1241 (10th

Cir. 1995).

       As to the claims – other than the ineffective assistance claims – raised for

the first time in his habeas petition, Mr. Jackson has failed to make the requisite

showing of cause and prejudice. Accordingly, these claims are procedurally

barred. Allen, 16 F.3d at 378. Further, in reviewing Mr. Jackson’s argument, we

find no merit to these claims.

       Under the separate standard applicable to ineffective assistance claims

articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), defendant

must show that (1) his counsel made sufficiently serious errors that she “was not


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functioning as the ‘counsel’ guaranteed to the defendant by the Sixth

Amendment,” and (2) that such “deficient performance prejudiced the defense.”

Id. We conclude that Mr. Jackson did not receive ineffective assistance of

counsel for substantially the reasons set forth by the district court.

                                  III.   Conclusion

      Mr. Jackson has failed to raise a constitutional claim debatable by

reasonable jurists. The application for a certificate of appealability is therefore

DENIED and the appeal is DISMISSED.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Chief Circuit Judge




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