*After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. 

The case is therefore ordered submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. The court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment 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

DEC 31 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OMER DAVID CANNON,

Defendant-Appellant.

No. 97-7083

(D.C. No. 97-CV-209-S)

(Eastern District of Oklahoma)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

Omer David Cannon appeals the district court's denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

Cannon pleaded guilty to distribution of methamphetamine in violation of

21 U.S.C. § 841(a) and possession of a firearm by a felon in violation of 18

U.S.C. § 922(g). See United States v. Cannon, No. 96-7014, 1997 WL 92926, at
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*1 (10th Cir. Mar. 5, 1997) (unpublished order). He was sentenced to the

statutory mandatory minimum of ten years’ imprisonment. See id. This court

affirmed his conviction and sentence. See id. at *2. 

A few weeks later Cannon filed the instant § 2255 motion. (R. 1.) The

district court denied his motion and declined to issue a certificate of appealability

as required by 28 U.S.C. § 2253 (West Supp. 1997). (R. 8, 11.) Cannon now

requests that this court issue the certificate and hear his appeal. In order to secure

a certificate of appealability, a movant must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (West Supp. 1997). We

have held that the standard for granting a certificate of appealability is the

standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880

(1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied 117

S. Ct. 746 (1997), overruled on other grounds by United States v. Kunzman, 125

F.3d 1363, 1365 n.2 (10th Cir. 1997). Under the Barefoot standard, a certificate

will issue only where the movant has demonstrated that the issues raised are

debatable among jurists of reason, that a court could resolve the issues

differently, or that the questions presented are deserving of further proceedings. 

See Barefoot, 463 U.S. at 893 n.4.

On appeal, Cannon raises six issues: (1) the district court erred in

sentencing him without determining whether the methamphetamine was D-
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methamphetamine or L-methamphetamine; (2) the district court erred in using the

1995 Guidelines rather than the 1994 Guidelines; (3) his counsel was ineffective

for not raising or appealing the fact that the type of methamphetamine was not

established; (4) the district court erred in not conducting an evidentiary hearing

on whether Cannon was a felon; (5) he was punished twice for possession of

firearms in violation of the Double Jeopardy Clause; and (6) his counsel was

ineffective for inducing Cannon to accept a fraudulent plea agreement.

A motion pursuant to 28 U.S.C. § 2255 is not a substitute for a direct

appeal. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). 

Consequently, a defendant may not raise claims that were not presented on direct

appeal unless he can show cause for and prejudice resulting from the error. See

id. Further, a defendant who has pleaded guilty, as did Cannon in this case,

waives all non-jurisdictional challenges to his conviction and may thereafter

challenge only the voluntary and intelligent nature of his plea. See United States

v. Wright, 43 F.3d 491, 494 (10th Cir. 1994). 

Although generally ineffective assistance claims are reserved for collateral

proceedings, in Cannon’s case this court considered an ineffective assistance of

counsel argument on direct appeal. See United States v. Cannon, 1997 WL 92926

at *1. Consequently, we need not consider Cannon’s new ineffective assistance

arguments. However, even if we were now to address Cannon’s claim that he
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received ineffective counseling regarding his plea agreement, we would find it

meritless based on our previous ruling that Cannon was aware of the provisions of

his plea agreement when he declined to withdraw his plea. See id. at *2 n.1.

In addition, Cannon now challenges his status as a felon for the purposes of

18 U.S.C. § 922(g), the federal statute that prohibits the possession of a firearm

by a felon. Cannon does not show cause for or prejudice from not having raised

this argument earlier. In any event, as part of his plea procedure Cannon had to

have admitted the elements of the crime to which he pleaded guilty. His current

unsupported allegations are insufficient to overcome his previous sworn

assertions.

For the remaining arguments Cannon cannot show cause for or prejudice

from not having raised the arguments earlier. In light of the fact that Cannon was

sentenced to the statutory mandatory minimum term of ten years’ imprisonment, 

see United States v. Cannon, 1997 WL 92926 at *1; 21 U.S.C. § 841(b), his

Guideline contentions are meritless. Section 841(b) does not differentiate

between types of methamphetamine, and thus there was no need for counsel to

raise the issue of what type of methamphetamine Cannon possessed or for the

district court to make a finding that Cannon possessed D-methamphetamine or Lmethamphetamine. Further, because Cannon was not sentenced according to the

Guidelines, it makes no difference for purposes of his sentence which version of
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the Guidelines was applicable. Cannon’s double jeopardy claim, which is based

upon his being sentenced as a felon in possession of a firearm and also having his

Guideline offense level enhanced for possession of a firearm, fails for the same

reason. Without a showing of prejudice Cannon may not proceed with these

claims under § 2255.

Cannon has not made a substantial showing of the denial of a constitutional

right. Accordingly, his request for a certificate of appealability is DENIED and

the appeal is DISMISSED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge