FILED

United States Court of Appeals

Tenth Circuit

September 12, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-6202

v. W.D. Okla.

BLAKE HANKINS STOVER,

Defendant - Appellant.

(D.C. No. 5:04-CV-00646-M)

(D.C. No. 5:00-CR-00155-M-1)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

Blake Hankins Stover, a federal prisoner represented by counsel, filed a 28

U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district

court dismissed the motion. Stover then filed a request for a certificate of

appealability (COA), which the court denied. Stover renews his requests for COA

in this Court. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1).

BACKGROUND

Stover was convicted by a jury of numerous counts involving the

manufacture and distribution of drugs. His conviction was affirmed on direct

appeal in an unpublished opinion. United States v. Stover, 57 Fed. Appx. 351

(10th Cir.), cert. denied, 539 U.S. 909 (2002). Stover filed a § 2255 motion
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claiming ineffective assistance of appellate counsel for failure to raise allegedly

meritorious issues on direct appeal. The district court dismissed the motion. See

United States v. Stover, Nos. CR-00-155M, CIV-04-646M, 2007 WL 2363289

(W.D. Okla. Aug. 16, 2007). It concluded the omitted issues were not “dead

bang” winners and therefore, Stover failed to show his appellate counsel was

ineffective for failing to raise them in his direct appeal. See United States v.

Cook, 45 F.3d 388, 392 (10th Cir. 1995). Thereafter, the district court denied his

request for a COA. 

CERTIFICATE OF APPEALABILITY

A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Stover makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 336. Insofar as the

district court dismissed his habeas petition on procedural grounds, he must

demonstrate both that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations
1

 “Although Strickland set forth standards for determining the effectiveness

of trial counsel, we have applied those same standards in assessing the

effectiveness of appellate counsel.” Cook, 45 F.3d at 394.

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omitted). “Where a plain procedural bar is present and the district court is correct

to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” Id. We review the district court’s factual

findings for clear error and its legal conclusions de novo. English v. Cody, 241

F.3d 1279, 1282 (10th Cir. 2001). 

“Section 2255 motions are not available to test the legality of matters

which should have been raised on direct appeal.” United States v. Warner, 23

F.3d 287, 291 (10th Cir. 1994) (citations omitted). When a petitioner “fails to

raise an issue on direct appeal, he is barred from raising the issue in a § 2255

proceeding, unless he establishes either cause excusing the procedural default and

prejudice resulting from the error or a fundamental miscarriage of justice if the

claim is not considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).

Ineffective assistance of appellate counsel can establish cause to overcome

the procedural bar. Id. Stover must show (1) his appellate counsel’s performance

was deficient and (2) the deficient performance prejudiced his defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984).1

 “When a defendant alleges

his appellate counsel rendered ineffective assistance by failing to raise an issue on
2

 We note during the course of proceedings in this Court, we issued

Stover’s counsel several deficiency notices and counsel specifically filed a notice

stating a transcript was not necessary.

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appeal, we examine the merits of the omitted issue[s].” Cook, 45 F.3d at 392. 

“The Sixth Amendment does not require an attorney raise every nonfrivolous

issue.” Id. at 394. Rather, counsel’s performance is ineffective when a “dead

bang” winner is omitted on appeal. Id. at 395.

The district court examined each issue raised by Stover and found not one

was a “dead bang” winner. Stover, 2007 WL 2363289 at *3-5. Stover reasserts

his arguments here but unfortunately provides an inadequate record for our

review. His appendix contains individual pages from the trial transcript without

offering the entire transcript, or at least the full transcript from the witnesses

whose testimony he references. Without a transcript of the relevant proceedings,

we cannot determine the merit of his claims and must affirm the district court.2

See United States v. Dago, 441 F.3d 1238, 1251 (10th Cir. 2006) (stating

counseled appellants have a duty to provide an adequate record and the failure to

do so will result in the affirmation of the district court’s judgment). For example,

Stover states appellate counsel was ineffective because he failed to raise

sufficiency of the evidence on two charges and for failing to address several

categories of inadmissible evidence. We must review his claims in the light most

favorable to the government and “presume that counsel’s actions constituted

sound strategy.” Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005). Given
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this standard, Stover’s submission of random selected pages of the trial transcript

cannot establish his claim. Because Stover has not provided a sufficient record to

demonstrate the district court’s dismissal is reasonably debatable, he has failed to

make a sufficient showing that he is entitled to a COA. 

We DISMISS his application for a COA.

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge