UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL DEWAYNE BELL, Defendant - Appellant. Nos. 11-5008 and 11-5011 (N.D. Okla.) (D.C. Nos. 4:10-C V-00138-GKF-TLW & 4:06-CR-00140-GKF-1)

ORDER DENYING CERTIFICA TE OF APPEALABILITY, AND DISMISSING APPEALS

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.

Michael Dewayne Bell, a federal prisoner proceeding pro se, 1 wants to appeal

from the district court's denial of his 28 U. S.C. § 2255 motion to vacate, set aside or correct sentence. His petition was based upo n alleged ineffectiveness of appellate counsel, principally counsel’s failure to raise issues Bell requested be raised in post-trial proceedings and on direct a ppeal. The district court c oncluded he di d not make “a substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2).

Because that decision was not even debatabl y incorrect we deny Bell’s request for a

1 We liberally construe Bell’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). FILED United States Court of Appeals Tenth Circuit 

### October 28, 2011

Elisabeth A. Shumaker Clerk of Court- 2 - Certificate of Appealability (COA). Bell was charged with three counts in a superseding indictment based on the February 28, 2006 armed robbery of the Arvest Bank in Tulsa Oklahoma. During hearings on March 29, 2007 an d April 10, 2007, Bell informed the court he did not want appointed counsel, Michael McGuire, to continue to represent him. 2 The court allowed Bell to proceed pro se with McGuire as sta ndby counsel. At an April 10 hearing, and again at a hearing on April 26, McGuire inform ed the court that he had given Bell a copy of all discovery he had received from the gove rnment with the exception of grand jury testimony and witness statements subject to a protective order from the court. Trial began on April 30, 2007. On May 2, 2007, the jury found Be ll guilty of aggravated bank robbery and use of a firearm in fu rtherance of a crime of violence. 3 The court denied Bell’s pro se motion for acquittal and his mo tion for a new trial and sentenced him to consecutive life sentences on each count pursua nt to the “three strikes” provision of 18 U.S.C. § 3559(d). We affirmed his conviction and sentence. United States v. Bell , 290 Fed. App’x. 178 (10th Cir. 2 008) (unpublished). The Suprem e Court denied certiorari on March 30, 2009. Bell v. United States , 129 S. Ct. 1644 (2009). Eventually, Bell filed a motion to vacate, set aside or co rrect sentence pursuant to 28 U.S.C. § 2255 (with eight supplements). His claims were based on ineffective assistance of counsel during post -trial motions and on direct appeal. In a comprehensive

2 McGuire had been appointed to represent Bell on March 2, 2007. 3 The third count, being a felon possession of a firearm, was dismissed at the close of the government’s case because the gove rnment had no evidence of the gun’s connection with inte rstate commerce.- 3 - opinion applying the Strickland 4 standard, the district court denied Bell’s request for an evidentiary hearing and denied each of his cl aims. It determined the procedural issues Bell faults counsel for neglecting were, in fact , raised by counsel and found to be without merit. Bell’s issues regarding: (1) McGu ire’s failure to raise government interference with witnesses; (2) the court’s denial of his request for shaving equipment to refute identification testimony; 5 (3) the admissibility of the test imony of Bell’s cellmate; (4) the government’s failure to produce the weapon used during the robbery; and (5) arguments regarding the imposition of the three strikes rule were all raised on appeal but rejected.

See Bell , 290 Fed. App’x. at 181-84. The district court also rej ected Bell’s claims that his counsel was ineffective for failing to raise a claim alleging the trial court coerced him into agreeing to self-representation. After full consideration of th e record, it determined Bell voluntarily waived his right to counsel. Having found no merit to any claim, the court denied an evidentiary hearing. Bell submitted a timely request for a COA to the district court which it denied. 6 Bell filed two requests for a COA in this Court challenging the denial of his § 2255 petition (Case # 11-5008) a nd the district court’s denial of an evidentiary hearing as well

4 Strickland v. Washington , 466 U.S. 668, 6 87-88, 694 (1984) (A defendant must demonstrate: (1) that his trial counsel was deficient such that he was deprived of “reasonably effective assistan ce” which fell below an “objective standard,” and (2) counsel’s deficient performance prejudiced hi s case such that “there is a reasonable probability that, but fo r counsel’s unprofessional errors, the results of the proceeding would have been different.”). 5 The district court also noted the tes timony involved the comparison of pictures which were in evidence. Therefore, Be ll’s actual appearance was irrelevant. 6 Inexplicably, the district court permitted Bell to proceed in forma pauperis

.- 4 - as a renewed argument regarding his other clai ms (Case # 11-5011). Fed. Rule App. P. Rule 22(b)(2) (“[a] request addressed to th e court of appeals may be considered by a circuit judge or judges, as the court prescribes .”) We have considered both requests and conclude they are without merit. A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been reso lved in a different manner or th at the issues presented were adequate to deserve encourag ement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). In ev aluating whether an ap plicant has satisfied this burden, we undertake “a preliminary, though not defi nitive, consideration of the [legal] framework” applicable to each of his claims. Miller-El , 537 U.S. at 338. The district court thoroughly and correc tly addressed and resolved the issues raised by Bell. As no jurist of reason c ould reasonably debate the correctness of the district court’s decision, we DENY the re quest for a COA and DI SMISS these matters. Entered by the Court:

Terrence L. O’Brien United States Circuit Judge