                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        August 18, 2009
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT




 UNITED STATES OF AMERICA,

           Plaintiff - Appellee.                             No. 09-4063
                                                    (D.C. Nos. 2:08-CV-741-TS and
 v.                                                        2:04-CR-141-TS)
                                                               (D. Utah)
 STANLEY L. WADE,

           Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


       Petitioner-Appellant Stanley L. Wade seeks to appeal from the district court’s

denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. Mr. Wade claims that the district court exceeded its jurisdiction by sentencing

him based on facts that were not found by the jury. He also claims that his attorney

provided ineffective assistance of counsel. The district court denied all of Mr. Wade’s

       *
              This Order is not binding precedent, except under the doctrines of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. After examining the appellate record, Petitioner’s application for a
certificate of appealability, and other filings, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a). The case is therefore
ordered submitted without oral argument.
claims on the merits. Affording solicitous construction to Mr. Wade’s pro se filings, see

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we find that no

reasonable jurist could conclude that the district court’s ruling was in error. We therefore

deny his request for a certificate of appealability (COA) and dismiss his appeal.

                                     BACKGROUND

       Mr. Wade was convicted by a jury on seven counts related to tax evasion and

bankruptcy fraud. He was sentenced to 100 months’ imprisonment followed by three

years of supervised release. He was also assessed a fine of $125,000. A previous panel

of this court affirmed Mr. Wade’s conviction and sentence. See United States v. Wade,

203 F. App’x 920 (10th Cir. 2006), cert. denied, 128 S. Ct. 532 (2007).

       Mr. Wade then filed a motion to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. He claimed that the district court impermissibly based his sentence

on factual findings that were not made by the jury—a claim that he also had raised on

direct appeal. He further claimed that he received ineffective assistance of counsel. First,

Mr. Wade claims that counsel’s efforts to challenge the admissibility of a letter written by

Mr. Wade’s attorney (the “Black letter”) were insufficient. Second, he claims that

counsel failed to object to the jury instruction on willfulness. See Cheek v. United States,

498 U.S. 192 (1991). Third, Mr. Wade claims that counsel should have argued that Count

V of the indictment was “preposterous” and “proven false in the indictment itself.”

Application for COA, Attach. at 9-10 (filed June 8, 2009). The district court denied the

motion in a thorough, well reasoned decision. R., Vol. I, Doc. 13 (Mem. Decision &

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Order, filed Feb. 18, 2009). Mr. Wade has now filed both an application for COA and a

brief on the merits.

                                         DISCUSSION

       A COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255

motion. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(1)(B).

We may not issue a COA unless “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must demonstrate

that “reasonable jurists could debate whether . . . 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) (internal quotation

marks omitted); see Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).

       Mr. Wade’s first argument—that any facts affecting his sentence must be found by a

jury—is entirely without merit. In fact, we rejected this argument on direct appeal. As we

explained then, after United States v. Booker, 543 U.S. 220 (2005), “judicial factfinding is

entirely permissible as long as the guidelines are not applied as mandatory.” Wade, 203 F.

App’x at 936 (citing United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005)). The

district court was correct to reject this claim, inter alia, because we had previously rebuffed it

on direct appeal. See, e.g., United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (“As

to Defendant’s remaining issues . . . we have previously considered and disposed of these

issues on direct appeal. Therefore, Defendant may not raise these issues under § 2255.”

(citations omitted)). No reasonable jurist would debate the propriety of this resolution.


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       The district court was also correct to deny Mr. Wade’s claims of ineffective assistance

of counsel. Claims of ineffective assistance of counsel are evaluated under the two-part

test of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Wade must

establish “that counsel’s performance fell below an objective standard of reasonableness

as measured against prevailing professional norms, and he must show that there is a

reasonable probability that the outcome would have been different but for counsel’s

inadequate performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008),

petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 27, 2009) (No. 08-10772); see

Strickland, 466 U.S. at 688, 694.

       With respect to the Black letter, the district court found that counsel challenged the

admissibility of the letter both at trial and on appeal. R., Vol. I, Doc. 13, at 6-7.

Moreover, even if the court was willing to assume that counsel’s performance was

somehow deficient, it concluded that Mr. Wade was not prejudiced, because there was no

reasonable probability that the outcome would have been different. Id. at 7. With respect

to the jury instruction, the court found that the instruction correctly stated the applicable

law and that, therefore, counsel was not ineffective in failing to object to it. Id. at 10.

With respect to Count V, the court found that Mr. Wade’s proposed “defense” did not

negate any of the elements of the offense. Worse, had counsel adopted Mr. Wade’s

suggested strategy, it could have undermined his defense as to Counts VI and VIII. Id. at

12.

       Having thoroughly reviewed Mr. Wade’s application for a COA, his merits brief,

                                              -4-
and the appellate record, we agree, for substantially the same reasons given by the district

court, that counsel was not ineffective. Therefore, Mr. Wade has not “made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

                                     CONCLUSION

       For the foregoing reasons, we DENY Mr. Wade’s application for a COA and

DISMISS his appeal.



                                                  Entered for the Court



                                                  Jerome A. Holmes
                                                  Circuit Judge




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