## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDY C. KIMLER, Defendant - Appellant. No. 04-3275 (D.C. Nos. 01-CR-10080-01-WEB & 04-CV-3108-WEB) (D. Kan.)

ORDER

Before EBEL , MURPHY and McCONNELL , Circuit Judges.
Randy C. Kimler (“Defendant”), a federal prisoner appearing pro se and in formapauperis , seeks a certificate of appealability (“COA”) to c hallenge the district court’s denial of his Motion to Vacate, Se t Aside, or Correct Sentence, which was brought pursuant to 28 U.S.C. § 2255 (200 0). For the reasons stated below, we DENYCOA and DISMISS the appeal.

BACKGROUND After a jury trial, Defendant was convicted on six counts of receiving, possessing, and distributing child pornography via computer, pursuant to 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). The district c ourt sentenced Defendant to 871 Defendant has not renewed, however, his ineffective assistance of counsel

claim insofar as it relates to counsel’s alleged fa ilure to move for suppression (continued...) - 2 - months imprisonment and three years of supervised r elease. (Id.) On appeal, we affirmed Defendant’s conviction and sentence. Unit ed States v. Kimler , 335 F.3d 1132, 1147 (10th Cir. 2003), cert. denied , 124 S. Ct. 945 (2003). Approximately five months later, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 a lleging ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984). Specifically, Defendant cited five grounds for his ineffective as sistance of counsel claim: (1) failure to present evidence of Defendant’s employme nt at trial; (2) failure to present Defendant’s medical records at trial; (2) f ailure to interview and subpoena alibi witnesses; (3) failure to effectively cross-e xamine government witnesses and make appropriate objections at trial; (4) failure t o move for suppression; and (5) failure to allow Defendant to testify on his own be half at trial. In a supplemental brief, Defendant raised an additional issue as to the sufficiency of proof that the images in question were of real children. The district court judge, who had also presided ove r Defendant’s trial, carefully considered and rejected each of Defendant ’s arguments, denying the § 2255 motion. On appeal, Defendant re-asserts the ineffective assistance of counsel claim and sufficiency of the evidence argum ents raised below. 1 In1 (...continued)

(ground #4, above). - 3 - addition, Defendant raises a new argument, challeng ing the validity of his sentence under Blakely v. Washington , 542 U.S. ___, 124 S. Ct. 2531 (2004) .

DISCUSSION Under 28 U.S.C. § 2253(c)(1), this court lacks juri sdiction to consider the merits of Defendant’s appeal unless he first obtain s a COA. In the instant case, Defendant seeks a COA from this court because the d istrict court denied his request to appeal its decision. See Fed. R. App. P. 22(b)(1). To prevail, Defendant must make “a substantial showing of the d enial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This is accomplis hed by establishing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 483-484 (2000) (quotations omitted)

. We hold that Defendant has failed to meet the Slackstandard with regard to any of the issues asserted on appeal. In order to assert an ineffective assistance of counsel claim, Defendant must set forth specific “p erformance” errors on the part of trial counsel and demonstrate “prejudice,” i.e. , a “reasonable probability” that,- 4 -

absent those errors, a different outcome would occur. Strickland , 466 U.S. at 688 (1984). With regard to the claims that Defendant’s attorney should have introduced Defendant’s medical and employment recor ds, called additional witnesses, and more effectively cross-examined gove rnment witnesses, we agree with the district court that none of the alleged co nduct overcomes our presumption that counsel acted within the wide rang e of reasonable professional judgment. See Strickland , 688 U.S. at 689. As to counsel’s alleged failure to allow Defendant to testify, we agree with the distr ict court’s factual finding that there was no reasonable probability that Defendant’ s testimony would have changed the result in the case, notwithstanding Def endant’s conclusory assertions to the contrary. As to Defendant’s argument regarding the sufficienc y of proof that the pornographic images were of real children, this iss ue was considered and rejected on direct appeal. See Kimler , 335 F.3d at 1140-42. As Defendant has not demonstrated an intervening change of law in our ci rcuit, the issue will not be considered further. See United States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989). Finally, Defendant’s newly-raised challenge to his sentence under Blakely v. Washingtonhas been waived because it was not raised in the o riginal § 2255- 5 -

motion or in a subsequent motion for reconsideratio n. See In re Walker , 959 F.2d 894, 896 (10th Cir. 1992). We decline to considerthe issue. Having carefully considered each of the arguments b efore the court, we remain unconvinced that reasonable jurists could de bate that Defendant’s § 2255 motion should have been resolved differently. See Slack , 529 U.S. 483-44. Accordingly, we DENYCOA and DISMISS the appeal for substantially the reasons stated below.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge