* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### MAR 20 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANNY RAY HILL, Defendant - Appellant. No. 99-6332 (D.C. No. 98-CV-1027) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BALDOCK , HENRYand LUCERO , Circuit Judges.

Danny Ray Hill, appearing pro se, requests a certif icate of appealability to challenge the district court’s denial of his motionto vacate his federal sentence pursuant to 28 U.S.C. § 2255. He also seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. We deny Hill’s appli cation for a certificate of appealability because he has failed to make “a subs tantial showing of the denial- 2 -

of a constitutional right,” 28 U.S.C. § 2253(c)(2), and deny his application to proceed in forma pauperis

. Hill pleaded guilty to possession of methamphetamin e with intent to distribute methamphetamine, in violation of 21 U.S. C. § 841, in exchange for the dismissal of two other methamphetamine-related counts. See United States v. Hill , No. 97-6053, 1997 WL 687734, at **1 (10th Cir. Oc t. 29, 1997). The district court sentenced Hill to 121 months of impr isonment and five years of supervised release, based on an adjusted offense level of thirty-two. See id. Hill appealed, alleging the district court erred in dete rmining the drug quantities underlying his base offense level under U.S.S.G. § 2D1.1, in applying a firearm enhancement under U.S.S.G. § 2D1.1(b)(1), and in in correctly informing him as to the mandatory minimum sentence for his crime. W e affirmed, holding the district court did not err in determining drug quan tity or Hill’s possession of the firearm; that its application of United States v. Richards , 87 F.3d 1152 (10th Cir. 1996), did not violate the Due Process Clause; and that any violation of Fed. R. Crim. P. 11(c) was harmless. See id. at **2-6. Hill then filed the instant § 2255 motion, allegingfive instances of ineffective assistance of counsel. The district co urt denied the motion, noting the “substantial overlap between alleged sentencing err ors raised on direct appeal and alleged errors by defense counsel raised in the current motion.” (III R. Doc.- 3 -

164 at 2.) In response to Hill’s request for a certificate of appealability, the district court declined to grant such a certificate , and declined to grant leave to proceed in forma pauperis under 28 U.S.C. § 1915(a) (3), finding that the appeal “is not taken in good faith.” (III R. Doc. 186 at 2.) Hill alleges six instances of ineffective assistanc e of counsel: 1) counsel failed to hold the government to its burden of prov ing drug quantity; 2) counsel failed to challenge the government’s drug quantity figures by means of expert testimony at sentencing; 3) counsel failed to objec t to cooperating witness testimony at sentencing; 4) counsel failed to bring up an issue of a “dismissed state charge;” 5) counsel failed to argue Hill’s pl ea agreement at sentencing and on appeal; and 6) counsel failed to file any motion s for downward departure. As an initial matter, the fourth claim may not be cons idered on appeal, absent manifest error, because Hill failed to present it b efore the district court. See, e.g. , Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). We find no such error, and therefore consider, for purposes of this application for a certificate of appealability, only those claims pre sented to the district court. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that his attorney’s performance was defic ient and that such deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 690-92 (1984). “Judicial scrutiny of the adequacy of attorney perf ormance- 4 -

must be strongly deferential: ‘[A] court must indul ge a strong presumption that counsel’s conduct falls within the wide range of re asonable professional assistance.’” United States v. Blackwell , 127 F.3d 947, 955 (10th Cir. 1997) (quoting Strickland , 466 U.S. at 689). Hill’s first two ineffective assistance claims pert ain to the drug quantity calculations employed at sentencing. To the extent this § 2255 petition challenges the underlying merits of the drug quanti ty determination, it is an improper attack on our decision on direct appeal. See United States v. Prichard , 875 F.2d 789, 790-91 (10th Cir. 1989). To the extent it alleges a separate claim of deficient attorney performance, Hill offers no c ognizable argument or evidence to rebut the district court’s rejection of this cla im. Addressing Hill’s counsel’s vigorous (albeit unsuccessful) drug quantity argume nts on direct appeal, we found the district court’s drug quantity findings were not clearly erroneous. See Hill , 1997 WL 687734, at **1-2. Hill’s arguments that expert testimony or different attacks on the government’s tests would s o certainly have resulted in different drug quantities as to render counsel’s strategy unreasonable is, as the district court noted, “fanciful.” (III R. Doc. 164 at 4.) The district court found that Hill’s counsel, rathe r than failing to challenge the credibility of a cooperating witness at sentenc ing, subpoenaed the witness “and questioned him extensively at the sentencing h earing.” (III R. Doc. 164 at- 5 -

3.) Because Hill offers no evidence whatsoever to rebut this factual finding, he cannot make a showing of deficient attorney perform ance on this claim. With respect to Hill’s arguments regarding enforcem ent of the plea agreement, the district court cited record evidence —such as a letter to Hill from his counsel referring to potential plea withdrawal—that Hill’s attorney discussed with him the possibility of plea withdrawal based o n a minimum sentence less than the one contemplated by the plea agreement. Considering the strong evidence of Hill’s awareness of this option and his decision not to pursue the withdrawal of his plea at his sentencing hearing, w e agree with the district court that he makes no showing of deficient attorney perf ormance in this area. Finally, as to Hill’s claim of ineffective failure to pursue any downward departures, this claim is belied by the district court’s discussion of the extensive mitigation evidence presented by Hill’s attorney and its subst antial effect on Hill’s sentence. Because Hill can make no showing that his counsel’s performance was deficient, we need not inquire into the prejudice prong of the Strickland test in order to determine whether he meets the criteria of 28 U.S.C. § 2253(c)(2) for grant of a certificate of appealability. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective as sistance claim . . . to address both components of the inquiry if the defendant mak es an insufficient showing on one.”).- 6 -

In addition to his ineffective assistance of counse l claims, Hill raises, on page fifteen of his application for a certificate o f appealability, five additional substantive issues, under the general rubric of due process. These purported issues are merely conclusory statements unsupportedby any citation to the record or legal authority. See Brownlee v. Lear Siegler Management Servs. Corp. , 15 F.3d 976, 977-78 (10th Cir. 1994). Moreover, Hill fails to show that he did not and could not reasonably have known of these issues so as to raise them on direct appeal. See United States v. Gattas , 862 F.2d 1432, 1435 (10th Cir. 1988). Finally, it appears from the record that Hill did n ot argue these issues before the district court, therefore waiving them on appeal. See Sac & Fox Nation , 47 F.3d at 1063. For these reasons, we decline to considerHill’s various due process claims. Hill’s application for a certificate of appealability is DENIED . Because we agree with the district court that this appeal i s not taken in good faith, we also deny Hill leave to proceed in forma pauperis. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge