United States v. Williams , 290 F. App'x 153 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 22, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3100
v. (D.C. No. 07-CV-01339-JTM)
(D. Kan.)
JERRY LEE WILLIAMS,
Defendant-Appellant.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Defendant, a federal prisoner proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his § 2255 habeas petition. In
his habeas petition, Defendant asserted that he received ineffective assistance of
counsel in his federal jury trial for being a felon in possession of a firearm. The
petition contained only one sentence in support: “Counsel did not raise issues in
which he was instructed to raise did not request expert for jury to hear testify.” 1
*
This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
In his application for a certificate of appealability, Defendant states that
he was asserting in his petition that counsel should have raised a justification
defense and presented expert testimony that Defendant’s fingerprints were not
(continued...)
(R. Doc. 102 at 4.) The district court concluded that this conclusory claim did not
warrant relief, noting that Defendant had “supplie[d] no supporting evidence to
show that credible arguments were in fact neglected by counsel or that any expert
testimony was available which would have materially assisted his case.” (R. Doc.
106 at 2.)
To obtain a certificate of appealability, Defendant must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to meet this burden, Defendant must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
After carefully reviewing Defendant’s filings in this court, the district
court’s disposition, and the record on appeal, we conclude that reasonable jurists
would not debate the district court’s conclusion that Defendant failed to establish
ineffective assistance of counsel under the standard set forth in Strickland v.
1
(...continued)
found on the firearm. However, nothing he presented to the district court even
remotely alluded to the justification defense or fingerprint evidence. In
addressing Defendant’s request for a certificate of appealability, we do not
consider the specific theories he now raises, which were at best raised “in a vague
and ambiguous way” before the district court. See Bancamerica Commercial
Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.), op. am. on
other grounds, 103 F.3d 80 (10th Cir. 1996).
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Washington, 466 U.S.668 (1984). Accordingly, for substantially the reasons set
forth by the district court, we DENY Defendant’s request for a certificate of
appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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