* This order and judgment is not binding precedent, e xcept under the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

### AUG 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DAVID THOMAS RHODES,

Defendant-Appellant. No. 97-8097 (D.C. No. 96-CV-255-B) (D. Wyo.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , 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); 10th Cir. R. 34.1.9. We gr ant appellant’s motion to supplement his statement of reasons for o ral argument. We do not find1 Appellant was convicted of possession with intent t o distribute cocaine.

The facts surrounding his offense are detailed in o ur decision on his direct appeal. See United States v. Rhodes , No. 93-8083, 1994 WL 386026 (10th Cir. July 22, 1994). -2- his additional reasons persuasive, however. The ca se is therefore ordered submitted without oral argument. Defendant-appellant David Thomas Rhodes seeks a certificate of appealability (COA) in order to proceed with his ap peal from the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, se t aside, or correct his
sentence. 1 See 28 U.S.C. § 2253(c)(1)(B). We deny appellant a C OA, and dismiss his appeal. In order to show his entitlement to a COA, appellan t must make “a substantial showing of the denial of a constitution al right.” Id. § 2253(c)(2). An appellant meets this standard if he shows that his issues “are debatable among jurists, or that a court could resolve the issues d ifferently, or that the questions deserve further proceedings.” United States v. Sis trunk , 111 F.3d 91, 91 (10th Cir. 1997). As his basis for relief, appellant alleges that his trial and appellate counsel were constitutionally ineffective. In order to establish ineffective assistance of counsel, a movant must show both that his counsel’s performance was deficient, and that the deficient performance prejudiced him. See Strickland v. Washington ,-3-

466 U.S. 668, 687 (1984). To establish the “prejud ice” element, he must show that but for this ineffective assistance the resultwould have been different. Id.

I. Ineffectiveness of trial counsel Appellant contends that his trial counsel: (1) shou ld not have presented evidence concerning his prior drug offense convicti ons and arrest on drug charges; (2) should have objected to the prosecutio n’s inquiry about the underlying facts of his convictions; (3) should hav e moved to suppress a bindle of cocaine found in a road atlas inside the van; (4) s hould have investigated evidence to impeach one of the prosecution’s witnes ses; (5) should not have elicited a law enforcement officer’s opinion that t hat witness was honest; (6) should have entered into evidence tools found in th e van; and (7) should have entered an arrest photo of appellant into evidence. He further contends that the cumulative effect of these errors denied him a fairtrial. We have carefully reviewed appellant’s brief and th e record. We conclude that even if appellant’s trial counsel performed de ficiently, appellant has failed to show that this performance prejudiced him. The evi dence in this case against appellant was simply overwhelming. Moreover, appel lant has failed to demonstrate that a constitutionally effective couns el could have managed to suppress enough of the evidence against him to make it something other than overwhelming.-4-

II. Ineffectiveness of appellate counsel 1. Chickelero tapes Appellant contends that his appellate counsel was i neffective in failing to appeal the district court’s decision concerning adm issibility of tapes on which he is heard to discuss cocaine sales with informant El bert Chickelero. “When a defendant alleges his appellate counsel rendered in effective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel’s failure t o raise it does not constitute constitutionally ineffective assistance of counsel.” United States v. Cook , 45 F.3d 388, 393 (10th Cir. 1995) (citations and quotation omitted). Having reviewed the record, we conclude that if the distri ct court erred in conducting its Fed. R. Evid. 404(b) analysis, such errors were harmless. See United States v. Sarracino , 131 F.3d 943, 949 (10th Cir. 1997) (applying harm less error analysis to Rule 404(b) issue).

2. Failure to petition for rehearing Appellant contends that his counsel should have fil ed a petition for rehearing of this court’s decision in his direct appeal, United States v. Rhodes , No. 93-8083, 1994 WL 386026 (10th Cir. July 22, 199 4). A petition for rehearing will be granted only if the court has overlooked ormisconstrued a significant issue. See 10th Cir. R. 40.1. Appellant fails to convince us that the result-5-

reached by the panel which previously considered th is issue was incorrect and that his petition for rehearing should have been granted . His counsel therefore was not ineffective for failing to move for rehearing.
III. Evidentiary hearing Appellant asserts he was entitled to an evidentiary hearing. Section 2255 provides that an evidentiary hearing shall be provi ded “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. Having reviewed the record, we conclude that the record contains a conclusive basis for rejecting ap pellant’s issues. Further factual development was not required in this case. Cf. Moore v. United States , 950 F.2d 656, 660-61 (10th Cir. 1991) (discussing evidentiary hearing standard, and finding that record did not allow disposition witho ut hearing).

Appellant’s application for a certificate of app ealability is DENIED and his appeal is DISMISSED.

Entered for the Court

Bobby R. Baldock Circuit Judge