* This order and judgment is not binding precedent, e xcept under the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

### JUL 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-5178
v. (D.C. No. 96-CV-1176) KENNETH CODY JACKSON, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Defendant-Appellant’s brief and the appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. Defendant was convicted of car jacking and related firearms charges. He was sentenced to twenty years imprisonment and his convictions were affirmed by this court on direct appeal. Defendant appeals the district court’s denial of his 28-2-

U.S.C. § 2255 petition for a writ of habeas corpus. We first address whether, under the Antiterrorism and Effective Death Penalty Act [AEDPA], the district court had jurisdiction to rule on the merits of Def endant’s section 2255 petition without prior authorization from this court. The i ssue arises because Defendant has filed two previous section 2255 motions. The first of these motions was filed after Defendan t’s conviction but before sentencing while he was incarcerated by the State o f Oklahoma. Defendant filed a motion for a new trial or, in the alternative, a motion pursuant to section 2255 in which he asserted that he was denied effective a ssistance of counsel. The district court properly denied habeas relief becaus e Defendant was not “in custody” under a federal sentence and, accordingly, section 2255 was not an available remedy. See 28 U.S. § 2255; United States v. Bustillos , 31 F.3d 931, 933-34 (10th Cir. 1994). Defendant filed a second section 2255 petition after sentencing and judgment but while a timely direct appeal was pending. The district court denied that section 2255 motion beca use the appeal was pending. We agree that this second motion should not be coun ted as a prior petition for purposes of the gatekeeping provisions of the AEDPA because it was filed before the disposition of Defendant’s direct appeal. See United States v. Scott , 124 F.3d 1328, 1329-30 (10th Cir. 1997); United States v. Cook , 997 F.2d 1312, 1318-19 (10th Cir. 1993). Because the two prior motions di d not determine the legality of-3-

Defendant’s detention, the section 2255 petition wh ich is the subject of this appeal, filed after this court affirmed Defendant’s conviction, constitutes his first section 2255 motion. The district court, therefore , had jurisdiction to rule on the merits of this section 2255 petition. Turning to the merits of the appeal, Defendant cont ends that he was denied effective assistance of counsel both at trial and o n appeal. Defendant alleges that his counsel failed to adequately investigate and pr esent an alibi defense, was incompetent, did not consult with him, and was tota lly unprepared for trial. Defendant moves this court for a certificate of app ealability. We issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C . § 2253(c)(2). After reviewing the record, we conclude that Defend ant’s allegations of ineffective assistance of counsel fail to meet the high standard of section 2253(c)(2), and, therefore, we deny him a certificate of appealability. We affirm the denial of relief under section 2255 for substan tially the same reasons as stated by the district court in its Orders filed September23, 1997, and August 28, 1997. DENIED and AFFIRMED. Entered for the Court Monroe G. McKay Circuit Judge