                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 3, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 10-3290
 v.                                          (D.C. Nos. 10-CV-01091-JTM and
                                                  6:06-CR-10218-JTM-1)
 BARRY P. FILLMAN,                                       (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Defendant-Appellant Barry P. Fillman, a federal inmate proceeding pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct a

sentence by a person in federal custody. The issuance of a COA is jurisdictional

and requires a movant to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Fillman must show that

reasonable jurists would find the district court’s assessment of a procedural or

constitutional claim debatable or wrong. Tennard v. Dretke, 542 U.S. 274, 282

(2004) (internal quotation marks and citations omitted); Slack v. McDaniel, 529

U.S. 473, 485 (2000). We conclude that he has not met this standard; accordingly
we deny a COA and dismiss the appeal.

      The parties are familiar with the facts and we need not restate them here.

See United States v. Fillman, 325 F. App’x 700 (10th Cir. 2009). Suffice it to

say, Mr. Fillman was convicted of two counts of possession of an unregistered

firearm and three counts of being a felon in possession of a firearm. 1 R. 13. He

was sentenced to a controlling sentence of 292 months with three years’

supervised release on each count to run concurrently. Id. at 14-15. On appeal,

his convictions and sentence were affirmed. Fillman, 325 F. App’x at 709.

      In this appeal from the denial of his § 2255 motion, Mr. Fillman argues that

(1) the indictment and resulting sentence were multiplicitous, (2) various

enhancements to his sentence violated his right to a jury trial, and (3) he received

ineffective assistance of counsel because counsel failed to conduct an adequate

investigation, interview potential witnesses, apply for funds for an expert witness,

and challenge a faulty indictment. Aplt. Br. at 2, 13.

      The first argument is procedurally barred for not having been raised on

direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). A § 2255

motion does not substitute for an appeal; only if Mr. Fillman can show cause and

prejudice or fundamental miscarriage of justice (actual innocence) may the bar be

excused. Bousley, 523 U.S. at 621-22. Mr. Fillman argues that cause is

ineffective assistance of counsel on appeal and the prejudice is a consecutive 120-

month sentence and $300 in special assessment fees. Aplt. Br. at 6. While

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attorney ineffectiveness can constitute cause, see United States v. Challenger, 583

F.3d 745, 749 (10th Cir. 2009) (citing Murray v. Carrier, 477 U.S. 478, 488

(1986)), as we discuss below the district court’s conclusion that counsel was not

ineffective is not reasonably debatable. See Strickland v. Washington, 466 U.S.

668, 687 (1984) (listing requirements for ineffective assistance of counsel).

Further, Mr. Fillman cannot show prejudice as the indictment and sentence were

not multiplicitous. The two unregistered firearm counts involved two

devices—the explosives found on his person and the rifle found in his truck, see

Fillman, 325 F. App’x at *702— and 26 U.S.C. § 5841(b) contemplates

registration for “each firearm.” 26 U.S.C. § 5841(b). We treat each unregistered

firearm “a separate unit for the purposes of criminal prosecution.” Sanders v.

United States, 441 F.2d 412, 414 (10th Cir. 1971). As to the felon-in-possession

counts, 18 U.S.C. § 922(g)(1), the firearms and ammunition were discovered in

different locations and are thus separate offenses. See United States v. Hutching,

75 F.3d 1453, 1460 (10th Cir. 1996). Accordingly, Mr. Fillman cannot

demonstrate cause and prejudice, let alone actual innocence, and the argument is

procedurally barred.

      Insofar as his argument that the factual findings underlying various

enhancements violate his Sixth Amendment right to a jury trial, that contention

was rejected on direct appeal because the district court applied the guidelines in

an advisory manner. Fillman, 325 F. App’x at 707. Absent a change in the law

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of the circuit, issues previously decided on direct appeal may not be raised in a

§ 2255 motion. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).

      We have carefully considered Mr. Fillman’s arguments that counsel was

ineffective at trial and at sentencing, particularly that counsel failed to call

witnesses that would have testified that the devices at issue were merely

fireworks. Aplt. Br. 13-20. Given that Mr. Fillman must establish both deficient

performance and prejudice, the district court’s conclusion that he cannot is not

reasonably debatable. Although Mr. Fillman has identified various acts and

omissions of counsel, we must “evaluate the conduct from counsel’s perspective

at the time” with a heavy dose of deference—particularly with regard to potential

tactical choices. See Strickland, 466 U.S. at 689. Given the expert testimony in

the case, the potential testimony from Mr. Fillman’s friends that he was in the

business of testing fireworks simply does not create a reasonable probability that

the outcome would have been different. Nor does the assertion that another

expert would have provided favorable testimony. Counsel’s advice concerning

Mr. Fillman not testifying given the state proceedings is precisely the type of

tactical decision that we may not second-guess.

      We DENY a COA and DISMISS the appeal.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge

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