                                                                                     FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                            August 14, 2013
                        UNITED STATES COURT OF APPEALS                    Elisabeth A. Shumaker
                                                                              Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
                                                               No. 13-3092
           v.                                      (D.C. Nos. 6:12-CV-01442-JTM and
                                                         6:09-CR-10008-JTM-1)
 JUDAH PRINCE, a/k/a Rex A. Lutes,                               (D. Kan.)

                 Defendant-Appellant.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Defendant Judah Prince, a federal prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2255 habeas petition.

Following a jury trial, Defendant was convicted on one count of manufacturing marijuana

plants and twenty-five counts of making false statements to a federally licensed firearms

dealer. He was sentenced to ten years’ imprisonment. Defendant appealed, and we

affirmed his conviction and sentence. United States v. Prince, 647 F.3d 1257 (10th Cir.

2011). Defendant then filed the instant habeas petition, alleging that his trial counsel was

ineffective for failing to cross-examine government witnesses on what Defendant


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
maintains was false and misleading testimony and for failing to properly argue that the

government engaged in prosecutorial misconduct relating to the allegedly false and

misleading evidence. The district court denied Defendant’s petition, concluding that the

record demonstrates Defendant’s “counsel cross-examined each witness vigorously and

effectively on his client’s behalf.” (R. at 301.)

       After thoroughly reviewing the record and Defendant’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of habeas

relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We further reject Defendant’s

contention that the district court erred in refusing his request for an evidentiary hearing.1

Defendant contends that such a hearing was necessary because “[c]learly, there is a

conflict between parties.” (Appellant’s Br. at 2.) However, because Defendant’s claims

of ineffective assistance of counsel can be resolved on the basis of the record alone, we


       1
         Defendant attempts to raise two additional claims that were not included in his §
2255 motion: (1) counsel was ineffective in failing to alert the district court to
Defendant’s concerns regarding the prejudice Defendant believed he suffered as a result
of ex parte communications between the court and a juror who had been excused near the
end of trial because of a scheduled work trip, and (2) counsel was ineffective in failing to
challenge Tenth Circuit precedent establishing that “the ‘fact’ of a prior conviction [used
for a sentencing enhancement] may be found by a sentencing judge rather than a jury,”
Prince, 647 F.3d at 1271 (citing cases), which Defendant believes conflicts with the
holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). Because, even construing
Defendant’s pro se petition liberally, both of these arguments were raised for the first
time on appeal, we will not consider them. See United States v. Moya, 676 F.3d 1211,
1213 (10th Cir. 2012) (refusing to consider alternative bases for the petitioner’s
ineffective assistance of counsel claim because the petitioner “did not raise these matters
in [the] district court and has not provided a reason to deviate from the general rule that
we do not address arguments presented for the first time on appeal” (internal quotation
marks omitted)).

                                             -2-
conclude the district court did not abuse its discretion in refusing to hold an evidentiary

hearing. See Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010). Therefore, for

substantially the same reasons given by the district court, we DENY Defendant’s request

for a certificate of appealability and DISMISS the appeal.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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