                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-6018
                                                     (D.C. No. 97-CV-657)
    CHARLES EDWARD MCINTYRE,                             (W.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




         After examining the briefs and 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      This order and judgment is not binding precedent, except under the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.
      Defendant Charles Edward McIntyre, a federal inmate appearing pro se,

seeks a certificate of appealability to appeal the district court’s denial of his

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

conclude defendant has not made a substantial showing of the denial of a

constitutional right, as required by 28 U.S.C. § 2253(c). Accordingly, we deny

his request for a certificate of appealability and dismiss the appeal.

      Defendant was convicted of conspiracy to distribute cocaine and cocaine

base in violation of 21 U.S.C. § 846, possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1), and traveling and causing travel

in interstate commerce to facilitate the distribution and possession of cocaine and

cocaine base with intent to distribute in violation of 18 U.S.C. § 1952(a)(3) and

18 U.S.C. § 2. He was sentenced to life imprisonment on two of the counts, to

480 months on one of the possession counts, and to 60 months on the remaining

counts. Defendant appealed his conviction, raising 25 allegations of error.         See

United States v. McIntyre , 997 F.2d 687 (10th Cir. 1993). His conviction was

affirmed. See id.

      Defendant filed this § 2255 petition in 1997 alleging ineffective assistance

of counsel. During opening statement and closing argument, defendant’s trial

counsel admitted that defendant had been stopped at an airport with cash in his

possession, that during a subsequent airport stop, police had found glass beakers


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similar to the kind used to cook crack cocaine in defendant’s luggage, and that

defendant was later arrested in a hotel room with cocaine in his underwear.

Defendant contends that, by these admissions, his counsel conceded his guilt,

depriving him of effective assistance of counsel, and that prejudice should be

presumed from such conduct. The district court rejected this argument,

concluding that defendant’s claim of ineffective assistance of counsel fails under

Strickland v. Washington , 466 U.S. 668 (1984), because his counsel made a

strategic decision to portray defendant as guilty of only simple possession of

cocaine for his personal use and to show that the evidence was insufficient to

support the government’s charges that defendant was involved in a major drug

conspiracy.

       We have thoroughly reviewed defendant’s brief, his application for a

certificate of appealability, the district court’s order, and the entire record before

us. We conclude that defendant has failed to demonstrate any prejudice arising

from his trial counsel’s alleged errors.   See Strickland 466 U.S. at 688, 692;

United States v. Williamson , 53 F.3d 1500, 1511-12 (10th Cir. 1995) (concluding

that trial counsel’s strategy of conceding during closing argument defendant’s

guilt with respect to lesser drug counts, and denying involvement with the more

serious conspiracy counts did not constitute ineffective assistance of counsel).

The district court’s order denying the § 2255 motion is not debatable, reasonably


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subject to a different outcome on appeal, or otherwise deserving of further

proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983).

Accordingly, because we conclude that defendant has not made a substantial

showing of the denial of a constitutional right, we DENY defendant’s application

for a certificate of appealability and DISMISS this appeal.

      The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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