* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### DEC 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. WALLIE A. SCOTT,

Defendant - Appellant. No. 98-6261 (D. Ct. No. CIV-97-717-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , MCKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. Defendant Scott appeals pro se an order of the dist rict court denying a motion to vacate, set aside, or correct defendant’s federal sentence pursuant to the provisions of 28 U.S.C. § 2255. This matter is bef ore this court on defendant’s- 2 -

application for a certificate of appealability and motion to proceed in forma pauperis under the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). Defendant was originally sentenced af ter a jury trial and conviction on charges of conspiracy to possess withintent to distribute cocaine base and possession with intent to distribute cocai ne base. At that time, defendant’s retained counsel did not perfect an app eal. Defendant then filed a pro se § 2255 petition claiming ineffective assistance of counsel for failure to perfect the appeal. The district court granted the petitio n, appointed new counsel, and after further proceedings, resentenced Mr. Scott to the same sentence originally imposed. The conviction and sentence was affirmed by this court. See United States v. Scott , No. 92-6272, 1993 WL 411596, at *8 (10th Cir. Oct . 8, 1993) (unpublished opinion). Defendant then filed this § 2255 petition. The district court referred the petition to this court, seeking a ruling on whether its filing constituted a second or successive filing pursuant to the provisions of the AEDPA. This court held that it did not and remande d the matter to the district court; see United States v. Scott , 124 F.3d 1328, 1330 (10th Cir. 1997). Upon remand, the district court denied the petition. On appeal, the defendant challenges the denial of that petition. Defendant alleges on appeal: (1) that he was denie d effective assistance of trial counsel for the failure of the trial counsel to obtain an independent lab- 3 -

analysis of the controlled substances involved; (2) ineffective assistance of appellate counsel for failing to raise the ineffect ive assistance of trial counsel issue in the direct appeal of the conviction; and ( 3) improper sentencing based on possession of cocaine base rather than crack cocain e. We decline to issue the certificate of appealability and further decline to grant in forma pauperis status to defendant. The r ecord in this case contains the testimony of the government’s chemist, who stated t hat the substance found in defendant’s possession at the time of his arrest wa s cocaine. There is further testimony in the record by defendant with regard to his use of crack cocaine and his intent to purchase crack cocaine. Under these circumstances, the district court was under no duty to hold a separate evidentiary he aring with regard to the failure of trial counsel to obtain an independent lab analy sis to challenge the government’s evidence with regard to the cocaine atissue. We hold that the district court did not abuse its discretion in refu sing to order such an evidentiary hearing. Further, this same testimony shows that t rial counsel’s alleged errors did not fall below any objective standard of reasonable ness as required in Strickland v. Washington , 466 U.S. 668, 688 (1984). Additionally, defendan t has failed to show any prejudice to his defense as a result of th e failure of trial counsel. See id . at 691. We further find that defendant has failed to show t hat appellate counsel- 4 -

was ineffective because she failed to raise the ine ffectiveness of trial counsel as a basis for appeal. The law of this circuit is clearthat ineffective assistance of counsel claims brought on direct appeal are “presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Thus, appellate counsel’s decisi on not to raise the ineffectiveness claim with regard to trial counsel is clearly not an unreasonable exercise of professional judgment. We further agre e with the district court that there is no merit to plaintiff’s contention that he was improperly sentenced because of the nature of the substance he possessed

. We find that defendant has failed to raise issues t hat are debatable among jurists, that a court could resolve the issues diff erently, or that the questions deserve further proceedings. United States v. Sistrunk , 111 F. 3d 91, 91 (10th Cir. 1997). We deny the certificate of appealabili ty. We deny the motion to proceed in forma pauperis pursuant to the provision s of Fed. R. App. P. 24. The appeal is dismissed. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge