* This order and judgment is not binding precedent, except under the doctrines of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

### FEB 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. GERALD MARSHAL PAYNE,

Defendant - Appellant. No. 98-5145 (D. Ct. No. 97-CV-393-BU & 94-CR-150-BU) (N.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(G). The case is therefore ordered sub mitted without oral argument. This appeal is from an order of the district court denying the motion to vacate, set aside, or correct defendant’s sentence pursuant to 28 U.S.C. § 2255. In particular, defendant appeals the finding of the district court that he was not- 2 -

denied effective assistance of counsel and that the remainder of his claims were procedurally barred. Defendant was found guilty on nine counts of an ind ictment and sentenced to 420 months imprisonment. Defendant appealed the conviction and sentence relating to Counts III and VII of the original indi ctment charging him with armed car-jacking in violation of 18 U.S.C. §§ 2, 2119. This court affirmed the conviction and sentence in an order dated May 8, 19 96. In this § 2255 petition, defendant challenges his c onviction and sentence as to all of the counts of the indictment. He argues that the conviction and sentence should be vacated on three grounds. First, defendant alleges that his counsel rendered ineffective assistance of counsel during trial and on appeal. Second, defendant argues that there was a double jeopardy v iolation because he was convicted and sentenced in state court for the same conduct for which he was convicted and sentenced in federal court. Finally, defendant alleges that his conviction and sentence were based upon improper ju ry instructions. The double jeopardy claim and the improper jury instruction cl aim were not raised in defendant’s direct appeal. They therefore cannot b e raised in this collateral proceeding in the absence of a showing of cause exc using the procedural default and a showing of actual prejudice resulting from th e errors, or a showing that a fundamental miscarriage of justice will occur if th e claims are not addressed. See1 Because defendant has not supplemented his § 2255 petition “with a colorable

showing of factual innocence,” Hickman v. Spears , 160 F.3d 1269, 1275 (10th Cir. 1998) (internal quotation marks and citation omitted), he cannot show that denying review of his procedurally defaulted claims will result in a miscarriage of justice. - 3 - United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994). The only clai m defendant asserts in his § 2255 petition that may s how cause sufficient to excuse his procedural default is that his appellate counse l rendered constitutionally ineffective assistance because he failed to raise i ssues on direct appeal. 1
To establish a claim for ineffective assistance of counsel, defendant must show both that his counsel’s performance was defici ent and that this deficient performance prejudiced the outcome of the proceedin gs. See Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). In order to determine whether defendant’s appellate counsel rendered ineffective assistance by failing to raise issues on direct appeal we, like the district court , must examine the merits of the omitted issues. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). “If the omitted issue[s are] without merit, counsel’s f ailure to raise [them] ‘does not constitute constitutionally ineffective assistance of counsel.’” Id. at 393 (quoting United States v. Dixon , 1 F.3d 1080, 1084 (10th Cir. 1993)). The omittedissues which form the basis of defendant’s ineffective ass istance of appellate counsel claim are his double jeopardy and improper jury ins truction claims. Defendant argues that appellate counsel should have raised a double- 4 -

jeopardy claim because the prosecutions in the stat e courts and the federal courts were for the same conduct. The prosecutions involv ed in this case were undertaken by separate sovereign governments and th us do not raise double jeopardy concerns. See United States v. Trammell , 133 F.3d 1343, 1349 (10th Cir. 1998). Therefore, we agree with the district court that this claim is without merit and cannot be used to establish defendant’s i neffective assistance of appellate counsel claim. With respect to the jury instruction claim, defendant fails to point to any specific jury instruction that he claims was improp er. We must look to the jury instructions “as a whole to determine whether they adequately state the law and provide the jury with an ample understanding of the issues and controlling principles of the law.” United States v. Dashney , 117 F.3d 1197, 1201 (10th Cir. 1997). After examining the jury instructions in th is case, we agree with the district court that there were no improper jury ins tructions given and therefore that this claim cannot support an allegation of ine ffective assistance of counsel. Because we find that the omitted issues forming the basis of defendant’s ineffective assistance of appellate counsel claim a re without merit, this claim fails. Consequently, defendant also has failed to show cause sufficient to excuse his procedural default, and he is therefore not ent itled to habeas relief on his defaulted claims.- 5 -

Defendant’s only remaining claim is that he has bee n denied effective assistance of counsel during his trial. We agree w ith the district court that defendant has failed to articulate facts sufficientto establish that his trial counsel’s performance fell below an objective stand ard of reasonableness or that his counsel’s performance prejudiced his defense. Consequently, defendant cannot prevail on this claim. For the reasons discussed above, we conclude that the claims raised by defendant in this § 2255 petition fail to make “a s ubstantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and that defendant is therefore not entitled to a certificate of appealability in t his court. The appeal is dismissed. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge