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Filed: Patrick Fisher
Filed: Patrick Fisher
TENTH CIRCUIT
AUG 11 1998
PATRICK FISHER
Clerk
No. 98-6017
JOSEPH C. BENNETT,
Defendant - Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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.
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days. Therefore, the court effectively denied Defendants request for a certificate of
appealability. See Tenth Circuit Emergency General Order of October 1, 1996.
Defendant now asks us to grant the certificate of appealability and reach the merits of his
appeal.
In support of his request for a certificate of appealability, Defendant advances
several points of error which he failed to raise in his direct appeal. Specifically,
Defendant claims that: (1) the court violated his right to due process because it failed to
keep a complete record of his trial; (2) the court violated his Fifth and Sixth Amendment
rights by not notifying him of the jurys request for the exhibit list; (3) the court
improperly instructed the jury regarding circumstantial evidence; (4) the court improperly
enhanced his sentence based on prior unconstitutional convictions. Defendant further
attempts an end run around any procedural problems associated with the above points of
error by contending that his appellate counsel was constitutionally ineffective in not
raising the above issues in his direct appeal.
We have thoroughly reviewed Defendants application for a certificate of
appealability, his brief, the district courts order, and the entire record before us. We
conclude that Defendant is procedurally barred from raising the issues which should have
been brought in his direct appeal, United States v. Allen, 16 F.3d 377, 378 (10th Cir.
1994), and that he has failed to demonstrate any prejudice arising from his appellate
counsels alleged errors. Strickland v. Washington, 466 U.S. 668, 688 (1984). The
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district courts order denying Defendants 2255 motion to vacate his federal sentence is
not debatable, reasonably 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 find that Defendant has not made a substantial showing of the
denial of a constitutional right, we DENY his request for a certificate of appealability and
DISMISS the appeal.
Bobby R. Baldock
Circuit Judge