*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 14 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT LEE DOWNS,

Defendant-Appellant.

No. 01-3003

(District of Kansas)

(D.C. No. 00-CV-3127-JTM)

ORDER AND JUDGMENT*

Before HENRY, BRISCOE, and MURPHY, Circuit Judges. 

After examining Appellant’s brief and the 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.

The case is before this court on Robert Lee Downs’ request for a certificate

of appealability (“COA”). Downs seeks a COA so he can appeal the district
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court’s denial of the motion to vacate, set aside, or correct sentence he filed

pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing that the

appeal of a final order disposing of a § 2255 motion may not be taken to a court

of appeals unless a COA is issued). 

Also before this court is appellee’s motion to dismiss Downs’ appeal. 

Appellee relies on Rule 4(b) of the Federal Rules of Appellate Procedure to

support its argument that Downs’ notice of appeal should have been filed within

ten days after the district court entered its order denying his § 2255 motion.

Appeals from the grant or denial of a § 2255 motion, however, are governed by

the time requirements applicable to civil appeals. See Klink v. United States , 308

F.2d 775, 776 (10th Cir. 1962). Rule 4(a)(1)(B) of the Federal Rules of

Appellate Procedure provides that when the United States is a party in an action,

the notice of appeal must be filed “within 60 days after the judgment or order

appealed from is entered.” Rule 4(a)(4) details the effect of certain motions on

the time for filing a notice of appeal. See Fed. R. App. P. 4(a)(4). We have

reviewed the record and conclude that Downs’ notice of appeal was timely filed. 

Appellee’s motion is therefore denied .

Downs entered a conditional guilty plea to a count of possession of

marijuana with the intent to distribute. Downs brought a direct appeal

challenging the district court’s denial of his motion to suppress evidence found in
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his vehicle. This court affirmed the district court’s denial of the motion to

suppress. See United States v. Downs , 151 F.3d 1301 (10th Cir. 1998). 

Downs then filed the instant § 2255 motion. In his motion, Downs raised

several ineffective assistance of counsel claims. Downs also alleged that his due

process rights were violated by: (1) the government’s failure to disclose evidence

in violation of Brady v. Maryland , 373 U.S. 83 (1963); (2) the government’s use

of leading questions during the direct examination of a police officer; and (3) the

government’s use of false testimony. Downs also claimed he was illegally

stopped because of his race. 

The district court first determined that Downs should have raised two of

the issues on direct appeal and, therefore, they were procedurally barred. Downs

argues that the district court failed to consider whether the alleged ineffective

assistance of his counsel constituted cause for the procedural default. We have

reviewed the record and conclude that Downs did not present any evidence that

demonstrated cause for the default. See United States v. Wright , 43 F.3d 491,

496 (10th Cir. 1994) (“A defendant is procedurally barred from presenting any

claim in a section 2255 petition that he failed to raise on direct appeal unless he

can demonstrate cause for his procedural default and prejudice suffered thereby .

. . .”).
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The court next considered each of Downs’ ineffective assistance claims

and concluded they were without merit. See United States v. Cox , 83 F.3d 336,

341 (10th Cir. 1996) (“A defendant may establish cause for procedural default by

showing he received ineffective assistance of counsel.”). The district court

determined that Downs had not shown constitutionally-deficient performance on

the part of his counsel or had not shown that he was prejudiced by counsel’s

performance. See Strickland v. Washington , 466 U.S. 668, 687 (1984). 

Finally, the district court considered Downs’ due process claims and

rejected them on the merits. In particular, Downs failed to establish that the

government had an obligation under Brady v. Maryland to produce photographs

of the drugs found in his vehicle. See 373 U.S. 83 (1963). Downs claims these

photographs show that the raw marijuana found in the trunk of his vehicle was

tightly wrapped in plastic and bound with duct tape. Downs, however, provided

no support for his unsubstantiated allegation that the wrapping made it

impossible for the arresting officer to smell the marijuana. Thus, Downs did not

demonstrate that the district court would have granted his motion to suppress if

the government had provided the photographs to him and, consequently, failed to

show that the photographs were material. See United States v. Bagley , 473 U.S.

667, 682 (1985) (“[E]vidence is material only if there is a reasonable probability
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that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.”). 

Downs is not entitled to a COA unless he can make “a substantial showing

of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). Downs can

make that showing by demonstrating that: (1) the issues raised are debatable

among jurists, (2) a court could resolve the issues differently, or (3) the questions

presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473,

483-84 (2000).

This court has reviewed Downs’ application for a COA and appellate brief,

the district court’s order, and the entire record before us. That review has

uncovered no reversible error in the district court’s disposition of Downs’ § 2255

motion. Thus, we conclude that the district court’s disposition of Downs’ § 2255

motion is not deserving of further proceedings, debatable among jurists of

reason, or subject to a different resolution on appeal. Accordingly, Downs has

not made “a substantial showing of the denial of a constitutional right” and is not

entitled to a COA. See 28 U.S.C. § 2253(c)(2). This court denies Downs’

request for a COA and dismisses this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge