* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### NOV 7 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ERIC WAYNE DOTSON, Defendant-Appellant. Nos. 01-6104 and 01-6199 (Western District of Oklahoma) (D.C. No. 00-CV-2118-A)

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 notmaterially 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 ora l argument.-2-

The case is before this court on Eric Wayne Dotson’ s request for a certificate of appealability (“COA”). Dotson seeks a COA so he can appeal the district court’s denial of his motion to vacate, se t aside, or correct sentence brought 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 § 2 255 motion may not be taken to a court of appeals unless a COA is issued). Becaus e Dotson has not made “a substantial showing of the denial of a constitutional right,” this court denies Dotson’s request for a COA and dismisses the appeal. See id . § 2253(c)(2). Dotson was charged in a three-count indictment withrobbery in violation of 18 U.S.C. § 1951; carrying a firearm during a cr ime of violence in violation of 18 U.S. C. § 924(c)(1); and transporting at least $ 5,000 worth of stolen property in interstate commerce in violation of 18 U.S.C. § 2314. Dotson represented himself at his trial and a federal public defender was appointed as standby counsel. Dotson was convicted on all three counts. On direct appeal, this court affirmed the judgment of conviction. See United States v. Dotson , No. 99-6436, 2000 WL 1820375 (10th Cir. Dec. 12, 1996) (unpublis hed disposition). Dotson filed the § 2255 motion on December 27, 2000 . In his motion, Dotson raised four issues: (1) his trial counsel an d his standby counsel were ineffective; (2) he was coerced into making stateme nts to officers; (3) he had inadequate time to prepare for trial; and (4) his appellate counsel was ineffective.-3-

The district court first concluded that Dotson coul d not base an ineffective assistance of counsel claim on his own pro se performance at trial. See McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984) (“[A] defendant who exercises his right to appear pro se cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of cou nsel.” (quotations omitted)). The court also concluded that claims of ineffective assistance of standby counsel cannot be brought by pro se defendants. S ee id . at 183 (“A defendant does not have a constitutional right to choreograph special appearances by counsel.”). Even assuming that Dotson could bring an ineffectiv e assistance claim regarding his standby counsel, his conclusory allegations con cerning the performance of standby counsel are wholly insufficient to support his claim that counsel’s performance was deficient and that he was prejudice d by the alleged deficient performance. See Strickland v. Washington , 466 U.S. 668, 687 (1984) (holding that a defendant must demonstrate that counsel’s re presentation fell below an objective standard of reasonableness, and that he w as prejudiced by counsel’s deficient performance); United States v. Fisher , 38 F.3d 1144, 1147 (10th Cir. 1994) (rejecting ineffective assistance of counsel claims as “conclusory in nature and without supporting factual averments”). Dotson also alleged that his due process rights wer e violated because he was coerced into making statements to investigatingofficers. In addition, he-4-

claimed his standby counsel was ineffective for fai ling to subpoena other incriminating statements because they would have il lustrated the coercion. The district court addressed this claim, noting that Do tson’s § 2255 motion contained only vague assertions and that he had failed to dem onstrate how the statements were coerced or how he was prejudiced by standby co unsel’s failure to subpoena the statements. See id

. The district court next considered Dotson’s claim that his due process rights were violated because he did not have adequate time to prepare for his trial and was unfamiliar with the Federal Rules of Crimin al Procedure. The district court noted that Dotson voluntarily, knowingly, andintelligently waived his right to counsel. See Dotson , 2000 WL 1820375, at * 2. The district court conc luded that Dotson, having been adequately informed of the inherent risks of proceeding pro se, could not raise a due process claim based on the a lleged trial difficulties. Finally, the district court considered Dotson’s cla ims that his appellate counsel was ineffective. The district court addres sed each alleged instance of constitutionally ineffective performance and determ ined that the allegations either lacked merit or were conclusory and unsupported. See Strickland , 466 U.S. at 687; Fisher 38 F.3d at 1147. The district court, thus, entere d judgment denying Dotson’s § 2255 motion. Dotson then soughtand was denied a COA.-5-

Dotson 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). Dotson can make that showing by demonstrating that: (1) the is sues raised are debatable among jurists, (2) a court could resolve the issues differently, or (3) that the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). This court has reviewed D otson’s request for a COA, Dotson’s appellate brief, the district court’s orde r, and the entire record before us. Our review demonstrates that the district court committed no reversible error in its disposition of Dotson’s § 2255 motion. Thus , the issues raised in the motion are not deserving of further proceedings, de batable among jurists of reason, or subject to different resolution on appea l. Accordingly, Dotson has failed to make the required substantial showing of the denial of a constitutional right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(B). This court denies Dotson’s request for a COA for substantially those reasons set forth in the district court’s order dated March 2, 2001, and dismisses this appeal. Dotson’s motion to proceed in forma pauperis on appeal is denied

. ENTERED FOR THE COURT Michael R. Murphy Circuit Judge