F I LED

United States Court of Appeals

Tenth Circuit

August 14, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ITOBORE OSHOBE,

Defendant - Appellant.

No. 06-3142

(D.C. No. 05-CV-3434-MLB)

(D.C. No. 03-CR-10052-01-MLB)

(D. Kan.)

ORDER 

DENYING A CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Defendant-Appellant Itobore Oshobe, a Nigerian national and a federal

prisoner appearing pro se, seeks a certificate of appealability (“COA”) allowing

him to appeal the district court’s denial of his 28 U.S.C. § 2255 motion. The

district court denied the motion on the merits. Our jurisdiction arises under 28

U.S.C. §§ 1291 and 2253(a), and as Mr. Oshobe has failed to make a “substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and dismiss the appeal.
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Background

After a jury trial, Mr. Oshobe was convicted on one count of aiding the

unauthorized use of an access device/credit card, one count of interstate

transportation of stolen property, one count of receipt of stolen property, and ten

counts of mail fraud. After receiving the Pre-Sentence Report and assessing its

calculations, the district court sentenced Mr. Oshobe to 41 months imprisonment

and restitution in the amount of $31,361.37. Mr. Oshobe filed a direct appeal,

which was rejected. United States v. Oshobe, 145 Fed. App’x. 243 (10th Cir.

2005). Next, Mr. Oshobe filed his § 2255 motion in the district court, which was

dismissed on the merits. This appeal followed.

On appeal, Mr. Oshobe advances numerous contentions. He first argues

that his trial counsel was ineffective, on the following grounds: (1) failing to

inquire into the circumstances of the execution of a search warrant on Mr.

Oshobe’s residence and file a motion to suppress; (2) failing to impeach a

government witness with prior false testimony and file a motion to dismiss the

indictment based on false testimony; (3) failing to advise him of the consequences

of agreeing to a stipulation at trial; (4) failing to research mitigating evidence;

and (5)failing to seek the presence of certain witnesses. Mr. Oshobe next argues

that: (6) the grand jury was not able to exercise its own judgment due to the

testimony elicited by the government; (7) he should be granted an evidentiary

hearing on his motion to vacate; (8) a witness whose testimony was excluded
Mr. Oshobe also continues to insist on appeal, as he has in various other 1

briefings, that his case should be reassigned from District Judge Belot. Mr.

Oshobe has vehemently contended that Judge Belot has been biased against him

dating back to “the movant’s trial.” See Aplt. App. Doc. 128. While it is of

course true, indeed axiomatic, that the court must retain the appearance of

impartiality, see Nichols v. Alley, 71 F.3d 347, 350-52 (10th Cir. 1995), it simply

is not the case that a judge can be deemed biased simply by virtue of his “prior

rulings in the proceeding, or another proceeding, solely because they were

adverse.” Id. at 351. At the same time, while it is certainly reasonable to view

some of the district court’s language as unduly harsh, see e.g., Aplt. App. Doc

135 at 15 (characterizing Mr. Oshobe’s claims as a “tall tale which a ten year old

child would have seen through”), that harsh language only amounts to an adverse

ruling, and nothing more for purposes of our bias inquiry.

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should have been allowed to testify; (9) the trial court erred in commenting on a

factual issue to be decided by the jury; and (10) the district court failed to address

his argument based on cumulative error. As discussed below, and found by the 1

district court, Mr. Oshobe’s arguments are patently meritless. 

Discussion

Where the district court denies a § 2255 motion on procedural grounds, a

COA should issue when the petitioner “shows, at least, 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, 529 U.S. at 484. On the

other hand, where, as here, the district court denies the motion on the merits, a

COA should issue when the petitioner “demonstrate[s] that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or
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wrong.” Id. 

Upon through review of the entire record, we are satisfied that the district

court adequately and thoroughly disposed of Mr. Oshobe’s contentions and they

are not debatable. Although he faults the district court for addressing cumulative

error, that theory does not apply in the absence of error. Castro v. Ward, 138

F.3d 810, 832 (10th Cir. 1998). Insofar as the district court’s decision to not hold

an evidentiary hearing, it is quite clear that the allegations contained in the

petition are far too speculative to warrant an evidentiary hearing, and thus there

was no abuse of discretion. See United States v. Lopez, 100 F.3d 113, 119 (10th

Cir. 1996).

Accordingly, we DENY a COA, GRANT leave to proceed in forma

pauperis, DENY all pending motions, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge