                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 20 2001
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

    v.                                                     No. 00-6096
                                                    (D.C. No. CIV-99-2123-A)
    CHARLES ALBERT STANFIEL, III,                          (W.D. Okla.)

                  Defendant-Appellant.


                              ORDER AND JUDGMENT           *




Before BRORBY , KELLY , and LUCERO , 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.

         Defendant Charles Albert Stanfiel appeals the district court’s denial of his

motion to vacate, set aside or correct sentence, filed pursuant to 28 U.S.C.



*
      This order and judgment is not binding precedent, except under the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.
§ 2255. Because defendant has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss this appeal.

      On July 16, 1997, defendant entered a plea of guilty to one count of

manufacturing methamphetamine, for which he received a 360-month sentence

and a $20,000 fine. This court affirmed his conviction on direct appeal in United

States v. Stanfiel, No. 97-6422, 1998 WL 886773 (10th Cir. Dec. 21, 1998)

(unpublished disposition). On December 30, 1999, defendant filed this § 2255

motion, alleging that both his trial and appellate counsel were ineffective. The

district court found defendant’s claims to be procedurally barred because they had

not been raised on direct appeal, and ruled in a detailed order that none of

defendant’s claims of ineffective assistance of appellate counsel demonstrated

cause and prejudice for the default. Defendant appeals this determination.

      Because defendant filed his § 2255 motion after April 24, 1996, he is

subject to the requirements of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), including the requirement that he obtain a certificate of

appealability as a prerequisite to appellate review. 28 U.S.C. § 2253(c)(1);

Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), cert. denied,

528 U.S. 1120 (2000). To obtain such a certificate, defendant must make a




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“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).

       A defendant may demonstrate cause for a procedural default by showing

that his appellate attorney was ineffective in failing to raise a “dead bang

winner,” which is defined as “an issue which was obvious from the trial record,

. . . and one which would have resulted in reversal on appeal.” United States v.

Cook, 45 F.3d 388, 395 (10th Cir. 1995). “This court’s review of counsel’s

decision to omit an issue on appeal is highly deferential.” Moore v. Gibson,

195 F.3d 1152, 1180 (10th Cir. 1999), cert. denied, 120 S. Ct. 2206 (2000).

      Defendant claims that his appellate counsel should have argued that his

trial attorney was ineffective in (1) failing to file a motion to suppress statements

given by his daughter because she had not been given Miranda warnings, 1 there

was no adult present, and she was threatened; (2) failing to object to the

government’s violation of the plea agreement; (3) stipulating to the amount and

purity of the methamphetamine; and (4) failing to object to the appropriateness of

the $20,000 fine. Defendant’s Motion for a Certificate of Appealability, at 2.

The district court held that the failure to raise these issues on appeal was not

ineffective because (1) defendant could not assert his daughter’s Miranda rights

and, in any event, there was more than enough evidence to support the sentence


1
      See Miranda v. Arizona , 384 U.S. 436, 444 (1966).

                                          -3-
even without the daughter’s testimony; (2) the plea agreement clearly showed that

all relevant conduct would be considered and no sentence was promised, so there

was no breach; (3) given the government’s evidence regarding the purity and

amount of methamphetamine, counsel’s decision to stipulate to these facts was a

tactical decision, and defendant did not show that challenging the government’s

evidence would have succeeded; and (4) given the fine range up to $4,000,000

and defendant’s pre-arrest income, there was no error in failing to object to the

fine.

        After reviewing the record and defendant’s brief, we conclude the district

court was correct in holding defendant had not demonstrated cause for his

procedural default. Because defendant has not demonstrated that his appellate

attorney omitted a “dead-bang winner,” he has not made a substantial showing of

the denial of a constitutional right, and therefore we deny his motion for a

certificate of appealability.

        The appeal is DISMISSED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge



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