                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            OCT 3 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-5142
                                                     (D.C. No. 91-CR-158)
    JERRY CRAIG COLEMAN,                                 (N.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before BRORBY, LOGAN, and HENRY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. 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.
      Defendant-appellant Jerry Craig Coleman appeals the district court’s denial

of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We

affirm.


                               I. BACKGROUND

      This is the fourth time this court has dealt with issues arising from

Coleman’s convictions in April 1992 for armed bank robbery, in violation of

18 U.S.C. § 2113(d), and use of a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c). The record shows that Coleman and

a friend, Brian Edmond Turner, were driven to the Stillwater National Bank by

another friend, Johnny Willis. While Willis waited, Coleman and Turner, who

were both unarmed, entered the bank together. Turner went to a teller’s window,

threatened her, grabbed money from her drawer, and fled in Willis’s vehicle.

Coleman scuffled with a security guard for control of the guard’s gun and was

captured. After Turner was apprehended, he entered a plea of guilty to the

offense of bank robbery.

      At the end of a two-day trial, a jury convicted Coleman of bank robbery and

the use of a firearm. On direct appeal, we affirmed the convictions, rejecting

contentions of (1) insufficient evidence of Coleman’s involvement in armed

robbery and (2) lack of sufficient control over the security guard’s gun to



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constitute “use” of a weapon. See United States v. Coleman, 9 F.3d 1480,

1483-84 (10th Cir. 1993).

      Later, Coleman filed a pro se § 2255 motion, alleging numerous grounds

for relief. The district court denied the motion. On appeal, we affirmed the

district court’s order on several issues, but reversed and remanded for specific

findings on Coleman’s claims of ineffective assistance of counsel and allegations

that the government obtained his conviction through the use of false testimony.

See United States v. Coleman, No. 95-5099, 1996 WL 3901, at **5 (10th Cir. Jan.

4, 1996). Upon remand, appointed counsel clarified Coleman’s allegations. The

district court held an evidentiary hearing, listened to argument of counsel, and

again issued an order denying relief. The second denial is the subject of this

appeal.

      While this appeal was pending, however, Coleman filed another § 2255

motion in the district court without first obtaining an order from this court

certifying that it met the standards applicable to a second or successive § 2255

motion. See Coleman v. United States, 106 F.3d 339, 340 (10th Cir. 1997). 1 The


1
       The amendments to Chapter 153 of Title 28 of the United States Code
contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
amended the procedures and standards for a second or successive § 2255 motion
filed after AEDPA’s April 24, 1996 effective date. The relevant language of
§ 2255, as amended, provides:

                                                                        (continued...)

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district court properly transferred the filing to this court, pursuant to 28 U.S.C.

§ 1631. See id. at 341. The second motion challenged the § 924(c) “use”

conviction on the grounds that the government had failed to prove that he

“actively employed” a firearm, as required by Bailey v. United States, 116 S. Ct.

501, 509 (1995). We observed that Bailey established a “‘new nonconstitutional

rule of substantive law,’” Coleman, 106 F.3d at 341 (quoting United States v.

Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996)), not a new rule of constitutional

law, as required by § 2255, Coleman, 106 F.3d at 341. We therefore concluded

that the second motion failed to make the prima facie showing required by

§ 2255, id. at 341, and denied certification, id. at 342.




1
    (...continued)

               A second or successive motion must be certified as provided in
         section 2244 by a panel of the appropriate court of appeals to contain
         --

                (1) newly discovered evidence that, if proven and viewed in
         light of the evidence as a whole, would be sufficient to establish by
         clear and convincing evidence that no reasonable factfinder would
         have found the movant guilty of the offense; or

               (2) a new rule of constitutional law, made retroactive to cases
         on collateral review by the Supreme Court, that was previously
         unavailable.

       These amendments applied to Coleman’s second petition because it was
filed after April 24, 1996.

                                           -4-
                                 II. DISCUSSION

      In this appeal, Coleman continues to argue that his conviction was based on

false testimony and that he received ineffective assistance of counsel. He also

injects the argument made in his second § 2255 motion, concerning the use of a

firearm under Bailey. We address each issue in turn, 2 reviewing the district

court's legal rulings de novo, and its findings of fact for clear error. See United

States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996).

      A.     False Testimony Issue

      The prosecution’s knowing use of false testimony violates due process if

that testimony contributed to the verdict. See United States v. Langston, 970 F.2d

692, 700 (10th Cir. 1992). Coleman alleges that the prosecution allowed Willis,

the driver, to testify that he was unaware of any robbery plans. At the evidentiary

hearing on remand, it became apparent that Willis had discussed the robbery with

Coleman and Turner. Although Coleman showed that Willis’s testimony was

false, he did not show either that the prosecutor knew of its falsity or that the

testimony had any material effect on the outcome of the trial. Indeed, truthful



2
       Coleman has requested that we issue him a certificate of appealability so
that he may prosecute his appeal. In United States v. Kunzman, No. 96-1310 at
n.2 (10th Cir. Oct. 1, 1997), we held that § 2255 petitioners who filed their
petitions in district court prior to AEDPA’s effective date do not need a
certificate of appealability. Because Coleman filed his original § 2255 motion on
August 2, 1994, a certificate of appealability is unnecessary.

                                         -5-
testimony from Willis would have provided additional support for the jury

verdict.

      B.     Ineffective Assistance of Counsel Issue

      We review claims of ineffective assistance of counsel de novo. See Hoxsie

v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997), petition for cert. filed (U.S.

June 9, 1997) (No. 96-9364). To prevail, Coleman must demonstrate that

counsel's performance “fell below an objective standard of reasonableness,”

Strickland v. Washington, 466 U.S. 668, 688 (1984), and that counsel's deficient

performance was so prejudicial “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” id. at 694.

      Coleman’s arguments concerning ineffective assistance of counsel are

meritless. First, he asserts that counsel failed to object when the district court

refused to instruct the jury that “mere presence” at a crime scene is insufficient to

prove participation in the commission of an offense. “If the government’s case is

based on more than just a defendant’s presence, and the jury is properly instructed

on all elements of the crime, then a ‘mere presence’ instruction is unnecessary.”

United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992). See also

United States v. DeMasi, 40 F.3d 1306, 1315 (1st Cir. 1994) (quoting United

States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir. 1994) (further quotation


                                         -6-
omitted)) (“[A] defendant’s ‘mere presence’ argument will fail in situations where

the ‘mere’ is lacking.”). Here, Coleman’s activities on the day of the robbery go

well beyond mere presence in the bank. Moreover, Coleman does not allege any

errors in the jury instructions covering the elements of bank robbery.

      Coleman also claims that counsel was ineffective for failing to investigate

and impeach Willis’s testimony and for entering into a stipulation that Turner

need not be called as a witness at trial. As we have previously discussed, the lack

of truthful testimony from Willis did not prejudice Coleman. Similarly, the

absence of testimony from Turner could not harm Coleman’s case. Concerning

the allegation that counsel failed to deliver a plea offer, Coleman provided no

evidence that any such offer was made.

      After reviewing the entire record, we note that counsel provided Coleman

with a professional defense and conclude that his performance was neither

deficient nor prejudicial to Coleman.

      C.     Use of Firearm Issue

      As a general rule, this court will not consider an issue on appeal that was

not raised below. Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992). The rule, however, “‘is not inflexible and the matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to

the discretion of the courts of appeals, to be exercised on the facts of individual


                                         -7-
cases.’” United States v. McRae, 81 F.3d 1528, 1532 n.1 (10th Cir. 1996)

(quoting Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir. 1996)

(further quotations omitted)).

      We exercise our discretion to reach and dispose of Coleman’s challenge to

his firearm conviction under the Supreme Court’s holding in Bailey that “use,” as

articulated in § 924(c), means an “active employment” of a firearm. Bailey, 116

S. Ct. at 509. We agree with the government that this holding does not affect our

determination on direct appeal that Coleman’s struggle with the guard for

possession and control of the gun was a “use” sufficient for § 924(c) purposes.

See Coleman, 9 F.3d at 1484.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. Coleman’s motion to file supplemental briefs is

GRANTED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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