* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 99-6003
v. (W.D. Oklahoma) WILLIAM ELMO GAINES,

Defendant - Appellant. (D.C. No. CV-97-719-C)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. William Elmo Gaines seeks a certificate of appealab ility to appeal the district court’s denial of his 28 U.S.C. § 2255 mot ion. A jury convicted Gaines of-2-

one count of conspiracy to distribute cocaine powde r and/or cocaine base in violation of 21 U.S.C. §§ 841(a), 846 and one countof distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). Gaines was sentenced to a 292-month term of imprisonment. We affirmed his convictions and sentence. See United States v. Gaines , No. 94-6408, 1995 WL 678504 (10th Cir. Nov. 15, 1 995). On April 30, 1997, Gaines filed a pro se motion pur suant to 28 U.S.C. § 2255, raising two claims for relief: (1) the gov ernment’s knowing use of perjured testimony to secure his conviction require s reversal, and (2) he was denied effective assistance of trial counsel on thr ee grounds: (a) failure to investigate, (b) failure to consult with Gaines, an d (c) failure to subject the government’s case to the adversarial testing proces s. The district court denied Gaines’ motion, finding that Gaines’ first claim wa s procedurally barred since he did not raise the issue on direct appeal. The dist rict court also rejected Gaines’ claim of ineffective assistance of counsel, finding that “nothing asserted by defendant amounts to either deficient performance o f counsel or could be said to have resulted in prejudice to the outcome.” UnitedStates v. Gaines , No. CR-94-64-C, slip op. at 4 (W.D. Okla. Aug. 31, 1998) (Order). The court denied Gaines’ motion for reconsideration on Septem ber 23, 1998.1 We previously ordered the parties to address the ju risdictional issue of

whether Gaines filed a timely notice of appeal. Al though the government notes the disputed facts over the filing date of Gaines’ pro se notice of appeal, we apply the “prisoner mailbox rule,” which treats the date Gaines placed his motion in the prison mailbox as the filing date, see Houston v. Lack , 487 U.S. 266 (1988), and consider the appeal timely filed.

2 Gaines does not raise the allegation regarding know ing use of perjured testimony by the government as an independent issue , but raises the issue in the context of ineffective assistance of counsel.

3 Gaines also argues that his appellate and trial cou nsel were ineffective for failing to argue that the district court lacked jur isdiction over him under 21 U.S.C. §§ 841, 846. When a party advances argument s available but not presented to the trial court, and had ample opportu nity to make the point in the trial court, the issue will not be entertained on appeal. See United States v. Olivo , 69 F.3d 1057, 1066 (10th Cir. 1995). In any event, the argument is meritless. -3- On appeal, 1 Gaines reasserts the issues raised below 2regarding ineffective assistance of counsel. 3 After careful review of the materials submitted b y Gaines, and construing his pleadings liberally, we conclude that the analysis and conclusions set forth in the district court’s Augus t 31, 1998, order are correct. For substantially the reasons stated in the distric t court’s order, we conclude that Gaines has not “made a substantial sh owing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Ac cordingly, we GRANT his-4-

motion for leave to proceed in forma pauperis, DENYthe request for a certificate of appealability, and DISMISS the appeal. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge