                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 1 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-3358
                                                  (D.C. Nos. 97-3082-RDR &
    THEODORE SHANTA MORGAN,                               90-30012)
                                                          (D. Kan.)
                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Theodore Shanta Morgan 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 sentence. Because Mr. Morgan has not made a substantial

showing of the denial of a constitutional right as required by § 2253(c)(2),

we deny his request for a certificate of appealability and dismiss his appeal.

       In 1988, Mr. Morgan and a codefendant were charged with one count of

possession of a prohibited object while in federal prison and a second count of

assault with a deadly weapon in connection with the brutal stabbing of a fellow

inmate in the federal penitentiary at Leavenworth, Kansas. The codefendant

pleaded guilty to the count of assault, and Mr. Morgan was tried and convicted by

a jury on both counts.

       On appeal, this court reversed Mr. Morgan’s conviction and remanded the

case for a new trial.   See United States v. Morgan , No. 91-3169, 1992 WL 37334

(10th Cir. Feb. 25, 1992) (unpublished). Mr. Morgan was retried and again

convicted on both counts. On appeal, this court affirmed.      See United States v.

Morgan , No. 93-3068, 1993 WL 499815 (10th Cir. Nov. 29, 1993) (unpublished).

       Mr. Morgan is now before this court alleging errors in the district court’s

denial of his § 2255 motion. On appeal, he claims that (1) the district court erred

in failing to vacate his sentence based on the government’s presentation of

alleged false testimony at his trial; (2) the district court erred in failing to vacate


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his sentence based on the alleged untruthful testimony of a government witness;

and (3) the district court erred in failing to vacate his sentence on the ground that

his trial counsel rendered ineffective assistance.

       The district court denied Mr. Morgan’s application for a certificate

of appealability. In order for this court to grant Mr. Morgan a certificate

of appealability, he must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). We have carefully reviewed

Mr. Morgan’s application for a certificate of appealability, his brief, the appellate

record, and the district court’s order. We conclude that Mr. Morgan’s first issue,

challenging whether the government intentionally solicited Special Agent Roy

Rymill’s testimony knowing it was false, was not raised in his direct appeal, and

therefore, will not be considered in a § 2255 proceeding.    See United States v.

Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A § 2255 motion is not available to test

the legality of a matter which should have been raised on direct appeal.”).

       Failure to present an issue on direct appeal bars the raising of that issue in

a § 2255 motion unless defendant can show cause excusing procedural default and

actual prejudice resulting from the errors of which defendant complains, or unless

defendant can show that a fundamental miscarriage of justice will occur if the

claim is not addressed.   See United States v. Warner , 23 F.3d 287, 291 (10th Cir.

1994). Mr. Morgan does not address the default issue. Thus, we conclude that he


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has failed to show cause for not raising the issue on direct appeal and his attempt

to raise it in his § 2255 motion is foreclosed.     1



       Mr. Morgan’s second issue, claiming that Special Agent Roy Rymill

intentionally testified falsely at his trial, was raised and ruled on in Mr. Morgan’s

direct appeal.     See Morgan , 1993 WL 499815, at **3. Therefore, this issue is

res judicata and may not be reconsidered in his § 2255 motion.     See Warner ,

23 F.3d at 291 (issues previously raised and disposed of on direct appeal may

not be raised in a § 2255 motion).

       Thus, we address only Mr. Morgan’s final claim alleging ineffective

assistance of trial counsel due to counsel’s failure to object to the government’s

production of late evidence, the government’s presentation of false testimony, and

the victim’s refusal to answer certain questions on cross examination. In order

to succeed on a claim of ineffective assistance of counsel, Mr. Morgan must

demonstrate that his counsel’s performance fell “below an objective standard of

reasonableness” and was so prejudicial “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.”     Strickland v. Washington , 466 U.S. 668, 688, 694 (1984).



1
       A defendant may establish cause for the default by showing ineffective
assistance of counsel. See Cox , 83 F.3d at 341. Although Mr. Morgan alleges
ineffective assistance of trial counsel, he does not allege that appellate counsel
was ineffective for failing to raise this issue in his direct appeal.

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       We approach these assertions, as did the district court, by proceeding to

a determination of whether Mr. Morgan was prejudiced by counsel’s alleged

errors. See United States v. Haddock , 12 F.3d 950, 955 (10th Cir. 1993) (“The

Supreme Court has observed that often it may be easier to dispose of an

ineffectiveness claim for lack of prejudice than to determine whether the alleged

errors were legally deficient.”). We discern no constitutional error in the district

court’s conclusion that Mr. Morgan failed to demonstrate any prejudice arising

from his trial counsel’s alleged errors.   In fact, we cannot improve on the

thorough and accurate analysis by the district court in this case, and if we were

to reach the merits of this case, we would have no problem with affirming the

district court for substantially the reasons set forth in its memorandum and order.

       Accordingly, because we conclude that Mr. Morgan has not made

a substantial showing of the denial of a constitutional right, we DENY his

application for a certificate of appealability and DISMISS his appeal.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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