                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS                    March 31, 2010
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                        No. 09-7113
                                            (D.C. Nos. 6:09-CV-00208-RAW and
 v.
                                                  6:07-CR-00064-RAW-1)
                                                        (E.D. Okla.)
 ALVIN HARRISON,

              Defendant-Appellant.



          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Alvin Harrison, a federal prisoner proceeding pro se, seeks a Certificate of

Appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2255 petition. With jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), we

DENY his application for a COA and DISMISS his appeal.




      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1. 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 matter. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
                                 I. BACKGROUND

         Mr. Harrison pleaded guilty to one count of possessing cocaine base with

the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He

was sentenced to 70 months in prison and 36 months of supervised release. We

dismissed his untimely direct appeal, and granted his appointed counsel’s motion

to withdraw, in an unpublished Order on April 6, 2009. Mr. Harrison then filed

with the district court a motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255, contending he had received ineffective assistance

of counsel. The district court denied the petition. Mr. Harrison then filed a

notice of appeal, along with a motion for a COA and a motion to proceed on

appeal in forma pauperis (“IFP”). The district court denied a COA and denied

leave to proceed IFP. Mr. Harrison now renews each of these requests before this

court.

                                  II. DISCUSSION

         A defendant may not appeal the district court’s denial of a § 2255 petition

without first obtaining a COA from this court. 28 U.S.C. § 2253(c)(1)(B). We in

turn may only issue a COA where “the applicant has made a substantial showing

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

satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

                                           -2-
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Coppage v.

McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Unless we grant a COA, we lack

jurisdiction to resolve the merits of a habeas appeal. Miller-El, 537 U.S. at 342.

      Because Mr. Harrison’s COA application rests on a claim of ineffective

assistance of counsel, in order to determine if he can make a substantial showing

of the denial of a constitutional right we must undertake a preliminary analysis of

his claims in light of the two-part test outlined in Strickland v. Washington, 466

U.S. 668 (1984). Under Strickland, to establish ineffective assistance a petitioner

must show, first, that counsel’s performance was deficient—that the

“representation fell below an objective standard of reasonableness” as measured

by “prevailing professional norms.” Id. at 687–88. Second, the petitioner must

establish prejudice—“that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694; see also Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008), cert.

denied, 130 S. Ct. 133 (2009). We may review these two components in any

order, and need not address both “if the defendant makes an insufficient showing

on one.” Strickland, 466 U.S. at 697.

      Mr. Harrison first argues that his attorney refused his explicit request to file

an appeal. If true, this claim would be a per se Strickland violation. See, e.g.,

United States v. Snitz, 342 F.3d 1154, 1155–56 (10th Cir. 2003). The district

court, however, rejected the claim, concluding that Mr. Harrison was not entitled

                                         -3-
to an evidentiary hearing * to prove his allegations because he had “not provided

any credible testimony that he requested and his counsel ignored his request for

an appeal.” R. at 151 (Dist. Ct. Order, filed Nov. 9, 2009) (citing Snitz, 342 F.3d

at 1156).

      Before this court Mr. Harrison again offers only the sparest argument to

support his claim, contending that, after the district court imposed a longer

sentence than Mr. Harrison expected, “Counsel told Appellant that he need not

worry, as it would all get corrected on Direct Appeal. Then counsel failed to file

a notice or an appeal.” Aplt. Br. at 3. Mr. Harrison does not specifically request

a COA on this issue and does not mention an evidentiary hearing. Nonetheless,

construing his petition liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam), we operate on the view that Mr. Harrison is seeking a COA

regarding the district court’s decision to deny an evidentiary hearing.

      In Machibroda v. United States, 368 U.S. 487 (1962), the Supreme Court

remanded in a § 2255 case for an evidentiary hearing after finding that “the

District Court did not proceed in conformity with the provisions of 28 U.S.C.

      *
             28 U.S.C. § 2255(b) provides, in relevant part:

             Unless the motion and the files and records of the case
             conclusively show that the prisoner is entitled to no relief, the
             court shall cause notice thereof to be served upon the United
             States attorney, grant a prompt hearing thereon, determine the
             issues and make findings of fact and conclusions of law with
             respect thereto.


                                         -4-
§ 2255, when it made findings on controverted issues of fact . . . without a

hearing.” Id. at 494. The Court was careful to note, however, that Mr.

Machibroda had made detailed and specific factual allegations that he had

received certain promises from the Assistant United States Attorney. Id. at

489–90, 495. In this light, the Court emphasized that it did not seek

             to imply that a movant must always be allowed to appear in a
             district court for a full hearing if the record does not
             conclusively and expressly belie his claim, no matter how
             vague, conclusory, or palpably incredible his allegations may
             be. The language of [§ 2255] does not strip the district courts
             of all discretion to exercise their common sense. Indeed, the
             statute itself recognizes that there are times when allegations
             of facts outside the record can be fully investigated without
             requiring the personal presence of the prisoner.

Id. at 495; see also Blackledge v. Allison, 431 U.S. 63, 75 (1977) (“The

allegations in this case were not in themselves so ‘vague [or] conclusory’ as to

warrant dismissal for that reason alone.” (brackets in original) (citation omitted)).

To be sure, this court has not been hesitant to remand for an evidentiary hearing.

See, e.g., United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005). But this does

not imply that a habeas petitioner is automatically entitled to an evidentiary

hearing merely because he makes a bald allegation that his attorney refused to file

an appeal.

      Reasonable jurists could not debate the district court’s conclusion that Mr.

Harrison was not entitled to an evidentiary hearing. Indeed, even though the

habeas form he filed with the district court required him to “[s]tate the facts

                                          -5-
supporting each ground” of relief he claimed, see R. at 7 (§ 2255 Petition, filed

May 29, 2009), and even after the district court dismissed his claim because he

failed to provide “any credible testimony” to support it, see R. at 151, Mr.

Harrison again fails on appeal to present detailed and specific facts to back up his

allegation. Without such facts, his claims are vague, conclusory, and palpably

incredible, and he cannot make a substantial showing of the denial of a

constitutional right. We must deny Mr. Harrison a COA on this issue.

      Mr. Harrison next claims that he received ineffective assistance at his

sentencing hearing. As he argued before the district court, “Counsel . . . did not

object to the use of ‘relevant conduct,’ and did not raise the issue concerning the

government’s lack of evidence to show ‘constructive possession’ of a large

portion of the cocaine base.” R. at 7. He contended that these errors caused him

to receive a greater sentence than was otherwise justified. The district court

rejected this claim, concluding that it was procedurally barred under Bousley v.

United States, 523 U.S. 614, 621 (1998), because Mr. Harrison failed to raise it

on direct appeal: “Petitioner’s . . . argument regarding his counsel’s failure to

object to the relevant conduct at sentencing need not be addressed because it does

not meet an exception to the rule barring collateral attacks on guilty pleas.” R. at

150. As Mr. Harrison points out in his brief on appeal, see Aplt. Br. at 4, this

procedural holding is incorrect. Mr. Harrison is not challenging the district

court’s use of relevant conduct or constructive possession. Rather, he is

                                         -6-
challenging his attorney’s failure to raise these issues at sentencing. See, e.g.,

United States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004).

      This error, however, does not entitle Mr. Harrison to a COA. Where the

district court denies a petition on procedural grounds, we may not issue a COA

unless “the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis

added); see also Coppage, 534 F.3d at 1281 (“If the application was denied on

procedural grounds, the applicant faces a double hurdle.”). Mr. Harrison cannot

clear this double hurdle, for even if reasonable jurists could fault the district

court’s procedural ruling, he cannot show that reasonable jurists could debate

whether there is merit to his Strickland claim. The district court was permitted to

consider Mr. Harrison’s relevant conduct at sentencing, see, e.g., United States v.

Caldwell, 585 F.3d 1347, 1349–51 (10th Cir. 2009), and Mr. Harrison does not

identify why he believes the principle of constructive possession was improperly

applied to his case. He thus cannot establish that his attorney was deficient in

failing to raise these challenges at sentencing. Likewise, because any such

objection would properly have been denied, Mr. Harrison cannot establish

prejudice. In short, Mr. Harrison cannot make a substantial showing of the denial

of a constitutional right, and we must deny his request for a COA on this claim.

                                          -7-
      Finally, Mr. Harrison contends that his attorney misrepresented the length

of the prison sentence he would serve: “Counsel falsely informed his client that

he would only receive a sentence of 37 months if he plead[ed] guilty on the spot.”

R. at 7. Mr. Harrison was in fact sentenced to 70 months’ imprisonment. The

district court rejected this claim for two reasons. It first held that, under Bousley,

Mr. Harrison was required to bring this claim on direct appeal. As discussed

above, this procedural holding was erroneous. However, the district court also

concluded that the claim fell short on the merits under Strickland. Mr. Harrison

could not show that his attorney erred, for “‘[a] miscalculation or erroneous

sentence estimation by defense counsel is not a constitutionally deficient

performance rising to the level of ineffective assistance of counsel.’” R. at 148

(quoting United States v. Gordon, 4 F.3d 1567, 1570–71 (10th Cir. 1993))

(brackets in original). Nor could Mr. Harrison prove prejudice, concluded the

district court. At his change-of-plea hearing Mr. Harrison indicated that he

understood that his sentence was “solely a matter within the control of the

sentencing judge” and stated that he was satisfied with his attorney. R. at 149.

“Given the fact that Defendant pleaded guilty even after being so informed by the

court, his mere allegation that, but for original counsel’s failure to inform him

about the use of relevant conduct in sentencing, he would have insisted on going

to trial, is insufficient to establish prejudice.” Gordon, 4 F.3d at 1571.




                                          -8-
      Mr. Harrison now repeats the claim that his attorney misrepresented his

likely sentence. ** But he does not challenge the analysis offered by the district

court, and he gives no reason to think that reasonable jurists could disagree with

its conclusion that Gordon bars him from establishing deficient performance or

prejudice. We must deny a COA on this issue.

                               III. CONCLUSION

      Mr. Harrison cannot make a substantial showing of the denial of a

constitutional right arising from any of his claims of ineffective assistance of

counsel. Therefore, we DENY a COA for each of his three issues and, lacking

jurisdiction to proceed further, DISMISS his appeal.




      **
              On appeal Mr. Harrison appears to alter the facts behind his claim
that his attorney provided an inaccurate estimate of his sentence. He states:
“Counsel informed this Appellant that the court was required to tell him that he
could face the max statutory sentence, but that it was routine, and that the
resulting sentence would be in the 37–46 month range and would be near or at the
bottom of that range.” Aplt. Br. at 3a.

       Mr. Harrison does not appear to have argued below that counsel told him
that the district court’s warnings were mere formalities. “This court will not
consider material outside the record before the district court.” United States v.
Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). Though a pro se defendant’s
filings are interpreted liberally,“[t]his court has repeatedly insisted that pro se
parties ‘follow the same rules of procedure that govern other litigants.’” Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d
915, 917 (10th Cir. 1992)). We deem this claim waived and decline to address it.
We do not opine on whether the new facts Mr. Harrison alleges on appeal would
constitute a Strickland violation.

                                         -9-
We GRANT his motion to proceed on appeal IFP.



                                  Entered for the Court


                                  JEROME A. HOLMES
                                  Circuit Judge




                                   -10-
