                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 5 2002
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 02-1203
          v.                                D.C. Nos. 99-N-348 & 91-CR-188-N
                                                       (D. Colorado)
 MILTON BEASLEY,

               Defendant - Appellant.




                            ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.



      After examining the appellant’s brief and the 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.




      *
       This order and judgment is not binding precedent, except under the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.
                                   I. BACKGROUND

      Milton Beasley, a federal prisoner proceeding pro se, requests 1) a

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

habeas petition and 2) authorization to proceed in forma pauperis (“IFP”). For

the reasons stated below, we deny a COA, deny IFP status, and dismiss the

appeal.

      Mr. Beasley pleaded guilty to a charge that he conspired to possess more

than fifty grams of cocaine with intent to distribute in violation of 21 U.S.C. §

846. He subsequently moved to withdraw the plea, arguing that his attorney had

provided ineffective assistance of counsel. The district court denied the motion,

conducted sentencing proceedings, and sentenced Mr. Beasley to a 360-month

term of imprisonment.

      On direct appeal to this court, Mr. Beasley argued that the district court

erred in denying his motion to withdraw his plea. We affirmed the district court‘s

decision denying Mr. Beasley’s motion to withdraw the plea. See United States v.

Beasley, No. 97-1104, 1998 WL 688882 (10th Cir. Feb. 20, 1998). Subsequently,

Mr. Beasley filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255,

which the district court denied.

                                   II. DISCUSSION

      Mr. Beasley may only receive a COA if he “has made a substantial showing


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of the denial of a constitutional right.” 28 U.S.C. § 2253(c). To make this

showing, Mr. Beasley must demonstrate that the issues are debatable among

jurists, that a court could resolve the issues differently, or that the questions

presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473,

483-84 (2000). Given Mr. Beasley’s pro se status, we construe his contentions

liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

      Liberally construing Mr. Beasley’s pleadings, he contends that (1) his

sentence violated his constitutional due process rights; (2) his sentence violated

his constitutional right to confrontation; (3) his plea bargain violated his

constitutional equal protection requirements; (4) the operation of the sentencing

guidelines against him violated his right to confrontation and due process rights;

(5) he received ineffective trial counsel; (6) the application of the sentencing

guidelines violated his constitutional rights under Apprendi v. New Jersey, 530

U.S. 466 (2000); and that (7) he received ineffective assistance of appellate

counsel for failure to raise the previous six grounds on direct appeal.

      “When a defendant alleges his appellate counsel rendered ineffective

assistance by failing to raise an issue on appeal, we examine the merits of the

omitted issues.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995)

(internal quotation marks and citation omitted). “If the omitted issues are without




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merit, counsel's failure to raise it does not constitute constitutionally ineffective

assistance of counsel.” Id.

      The district court’s order denying the § 2255 motion recognized that issues

not raised on direct appeal are procedurally defaulted and therefore barred absent

a showing of cause and prejudice. However, evidently construing Mr. Beasley’s

petition to be arguing that his ineffective assistance of counsel claim constituted

cause and prejudice that excused the default, the district court considered the

merits of the claims that Mr. Beasley raised in conjunction with his ineffective

assistance of appellate counsel claim. See Aplt’s App. 1, at 6-9 (Dist. Ct. Order,

filed Mar. 27, 2002). To show ineffective assistance of counsel, Mr. Beasley

must show, among other things, prejudice flowing from deficient representation,

that is, that “there is a reasonable possibility that, but for counsel’s professional

error, the result of the proceeding would have been different.” Strickland v.

United States, 466 U.S. 688, 694 (1984). Applying these criteria by assessing the

merits of the claims raised in conjunction with Mr. Beasley’s ineffective

assistance of counsel claim, the district court determined that Mr. Beasley failed

to show constitutionally deficient performance by his appellate counsel, and that

there was no prejudice from appellate counsel’s failure to raise the other issues

alleged. See Aplt’s App. 1, at 7.




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      In reviewing the district court’s denial of Mr. Beasley’s § 2255 motion, we

review its legal rulings de novo and factual findings for clear error. See United

States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000), cert. denied, 532 U.S.

943 (2001). Ineffective assistance of counsel claims involve mixed questions of

law and fact which we review de novo. See United States v. Prows, 118 F.3d

686, 691 (10th Cir. 1997).

      With these standards of review in mind, we have conducted a thorough

review of the pleadings and entire record on appeal. For the purpose of judicial

economy, we decline to duplicate the district court’s clear and comprehensive

analysis of the claims raised in Mr. Beasley’s § 2255 motion. For substantially

the same reasons as those discussed by the district court, we conclude that the

district court’s disposition of Mr. Beasley’s habeas petition was correct.

                                III. CONCLUSION

      For the foregoing reasons, we DENY Mr. Beasley’s request for a COA,

DENY his request to proceed IFP, and DISMISS the appeal.

                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




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