F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 20 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
                                                         No. 04-5011
               Respondent-Appellee,
          v.                                     Northern District of Oklahoma
 PETER J. McMAHON, JR.,                            (D.C. No. 97-CV-1058-H)

               Petitioner-Appellant.


                                       ORDER *


Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      Peter J. McMahon, a federal prisoner, seeks a certificate of appealability

(COA) that would allow him to appeal from the district court’s order denying his

habeas corpus petition under 28 U.S.C. § 2255.    See 28 U.S.C. § 2253(c)(1)(B).

Because we conclude that Mr. McMahon has failed to make “a substantial

showing of the denial of a constitutional right,” we deny his request for a COA

and dismiss this appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                               I.

      In early 1995, Mr. McMahon, and his co-defendant Kandy Thomas, were

indicted in the Northern District of Oklahoma and charged with possessing a

firearm and ammunition in violation of 18 U.S.C. § 922(g) and using a firearm

“during and in relation to any . . . drug trafficking crime” in violation of 18

U.S.C. § 924(c)(1). Ms. Thomas pled guilty during their trial after the

Government discovered she and Mr. McMahon had suborned perjury; Mr.

McMahon was found guilty by jury. The district court enhanced Mr. McMahon’s

sentence under 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”),

and sentenced him to 235 months for his § 922(g) convictions, to be served

consecutively with a 60-month sentence for his § 924(c)(1) conviction.

      On direct appeal, this Court reversed Mr. McMahon’s § 924(c)(1)

conviction based on the Supreme Court’s holding in          Bailey v. United States , 

(1995), that a § 924(c) conviction requires “active employment” of the

weapon “in relation to the predicate crime.”         United States v. McMahon , 

, 1396 (10th Cir. 1996), quoting    Bailey , 516 U.S. at 143. We vacated the

portion of Mr. McMahon’s sentence based on his § 924(c)(1) conviction, affirmed

the enhancement of the sentence on his § 922(g) convictions, and remanded the

case for 

–98.




                                               -2-
      On remand, the district court again sentenced Mr. McMahon to 235 months

for his § 922(g) convictions; as before, the court enhanced the sentence under §

924(e). Mr. McMahon appealed his new sentence, and we affirmed.         United

States v. McMahon , 

, 

(10th Cir. June 7, 1999)

(unpublished decision).

      Mr. McMahon then filed a habeas corpus petition under 28 U.S.C. § 2255.

The district judge referred the matter to a magistrate judge, who, in a forty-three

page Report and Recommendation, recommended the district court deny Mr.

McMahon’s § 2255 petition. After considering Mr. McMahon’s objections, the

district court adopted the magistrate judge’s report and recommendation. This

appeal followed.

                                          II.

      Mr. McMahon posits four reasons why we should issue a COA. Exercising

jurisdiction under 28 U.S.C. §§ 2253(a) and 2255, we consider each.

                                          A.

      Mr. McMahon first argues the district court erred by considering his 1986

state conviction for Unlawful Delivery of Controlled Drug a qualifying predicate

felony under § 924(e), which requires a district court to enhance a defendant’s

sentence for a § 922(g) conviction if that defendant “has three previous

convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C.


                                          -3-
§ 924(e)(1). Mr. McMahon claims his 1986 conviction was unconstitutionally

obtained—either because he is actually innocent or because of ineffective

assistance of counsel—and that it thus should not qualify as a predicate “serious

drug offense.”

       Mr. McMahon’s argument is a collateral attack on a prior state conviction

that later was used to enhance his federal sentence. In    Daniels v. United States ,

(2001), the Supreme Court limited a prisoner’s ability to collaterally

attack a prior state conviction in a § 2255 proceeding:

             If . . . a prior conviction used to enhance a federal sentence is
       no longer open to direct or collateral attack in its own right because
       the defendant failed to pursue those remedies while they were
       available (or because the defendant did so unsuccessfully), then that
       defendant is without recourse. The presumption of validity that
       attached to the prior conviction at the time of sentencing is
       conclusive, and the defendant may not collaterally attack his prior
       conviction through a motion under § 2255.

The only exceptions are claims that a prior conviction was obtained

without the assistance of appointed counsel in violation of the Sixth Amendment

and Gideon v. Wainwright , 

(1963), or “rare cases in which no

channel of review was actually available to a defendant with respect to a prior

conviction, due to no fault of his own.”     Daniels , 532 U.S. at 382–83.

       Daniels did not discuss what type of non-     Gideon “rare cases” would permit

a prisoner to collaterally attack a prior conviction in a § 2255 motion once the

standard opportunities for review expired. Mr. McMahon, however, claims that

                                            -4-
Lackawanna County Dist. Attorney v. Coss       , 

(2001)—where the

Court extended Daniels ’s holding to § 2254 petitions—provides guidance.

Coss states that a defendant may not be “faulted for failing to obtain timely

review of a constitutional claim” if “a state court . . . , without justification,

refuse[s] to rule on a constitutional claim that has been properly presented to it,”

or if, “after the time for direct or collateral review has expired, a defendant . . .

obtain[s] compelling evidence that he is actually innocent of the crime for which

he was convicted, and which he could not have uncovered in a timely 

.

       These statements are not    Coss ’s holding, but rather helpful dicta.   See 

(“As in Daniels , this case does not require us to determine whether, or under

what precise circumstances, a petitioner might be able to use a § 2254 [or § 2255]

petition in this manner.”). We nonetheless assume these examples typify the “rare

cases” that would qualify as exceptions to the rule in     Daniels and measure Mr.

McMahon’s claims against them.

       First, Mr. McMahon claims that “he is actually innocent of the predicate

1986 state conviction.” Aplt.Br. 14. He claims that, despite his innocence, he

pled guilty—on counsel’s advice—to the 1986 charges because he had been

assaulted while in prison for a separate crime and the plea bargain “would allow

him to be sentenced to a term of imprisonment to be served concurrently with his”


                                             -5-
earlier sentence and “almost immediately discharge the imprisonment portion of

his [new] sentence.”    

Thus, Mr. McMahon, though allegedly innocent,

pled guilty because he feared “for his safety within a prison system which had

failed to protect him from a life threatening assault.”    

these facts are true, this claim does not qualify as a “rare

case” exception. Based on      Coss , a prior state conviction is subject to collateral

attack only if “ after the time for direct or collateral review has expired, a

defendant . . . obtain[ed] compelling evidence” of actual innocence that “       he could

not have uncovered in a timely manner      

(emphasis added).

According to Mr. McMahon’s story, he knew          immediately following his guilty

plea—well before his chance to seek direct review in Oklahoma courts

expired—that he was actually innocent. A timely appeal could have addressed his

actual innocence claim. Because he failed to appeal this issue in Oklahoma, Mr.

McMahon foreclosed his chance to seek review in a § 2255 proceeding, and he “is

not entitled to another bite at the apple simply because that conviction is later

used to enhance another sentence.”       Daniels , 532 U.S. at 383.

       Additionally, Mr. McMahon argues we should permit this collateral attack

on his 1986 conviction because the public defender who represented him in 1986

provided ineffective assistance of counsel. He claims he “was denied the

opportunity to challenge his 1986 conviction through no fault of his own”


                                             -6-
because, after he accepted the plea agreement, “McMahon was abandoned by his

counsel. The court had not advised McMahon of his appellate rights, and

McMahon’s trial counsel never met with him to advise him of his right to

challenge the conviction on appeal.” Aplt.Br. 15.

       Mr. McMahon asserts that we should consider this ineffective assistance

collateral challenge to his 1986 conviction under the “rare case” exception in

Daniels . However, Daniels and Coss both considered ineffective assistance of

counsel claims, and neither held—though both were squarely confronted with the

issue—that an ineffective assistance claim was a “rare case.”     Daniels , 532 U.S.

at 384 (“No such claim [of a rare case] is made here. The sole basis on which

petitioner Daniels challenges his current federal sentence is that two of his prior

state convictions were the products of inadequate guilty pleas and ineffective

assistance of counsel.”);   Coss , 532 U.S. at 399 (“In his [§ 2254] petition, Coss

contended that his 1986 assault conviction was the product of ineffective

assistance of counsel.”). Accordingly, if his ineffective assistance claim is

excepted from Daniels ’s rule prohibiting collateral attacks, it must be as an

extension of Gideon .

       It is well established that “[a]n indigent defendant in a criminal trial has the

constitutional right to the assistance of counsel.”   Baker v. Kaiser , 

,

1498 (10th Cir. 1991), citing    Gideon v. Wainwright , 

(1963). “The


                                              -7-
right to counsel also extends to a defendant’s first appeal as of right.”         

Douglas v. California , 

(1963). Appointed counsel, both at trial and

on the first appeal as of right, must render effective assistance.         See McMann v.

Richardson , 

, 771 n.14 (1970);           Evitts v. Lucey , 

(1985).

In Baker, the Court concluded “that the right to counsel applies to the period

between the conclusion of trial proceedings and the date by which a defendant

must perfect an 

–99. The Court found this right “is

‘required in the hiatus between the termination of trial and the beginning of an

appeal in order that a defendant know that he has the right to appeal, how to

initiate an appeal and whether, in the opinion of counsel, an appeal is indicated.’”

quoting Nelson v. Peyton , 

, 1157 (4th Cir. 1969).

       Mr. McMahon asserts that, based on            Gideon , Douglas , Evitts , and Baker , he

was denied effective assistance of counsel because his appointed attorney never

spoke to him about appealing his 1986 conviction. We disagree.               Baker only

speaks to a counsel’s duties following a jury trial and conviction. When a

defendant pleads guilty, “an attorney has no absolute duty in every case to advise

a defendant of his limited right to appeal.”         Laycock v. State of New Mexico , 

, 1887-88 (10th Cir. 1989). Mr. McMahon cannot succeed on an

ineffective assistance claim solely by showing that his attorney failed to notify

him of his limited appeal rights.    

Instead, Mr. McMahon must


                                               -8-
demonstrate that his counsel failed to inform him of his appeal rights after he

inquired about them or that there was a constitutional error that might have

resulted in a court setting aside his guilty plea.    

claims only

that his “trial counsel failed to consult with him about his right to appeal,”

Aplt.Br. 11, that he was “abandoned by his counsel,”        

and that his “trial

counsel never met with him to advise him of his right to challenge the conviction

on appeal.” 

not claim that he asked his counsel about his right to

appeal, nor does he allege that a court would have set aside his guilty plea

because it was constitutionally infirm. Thus, Mr. McMahon was not denied the

right to counsel. This claim therefore does not qualify as a      Gideon exception to

Daniels .

       In sum, Daniels prevents Mr. McMahon from collaterally challenging his

1986 Oklahoma conviction in a § 2255 motion. Once a prisoner’s time for

directly attacking a prior state conviction has expired, as Mr. McMahon’s has for

his 1986 conviction, the prisoner may collaterally attack such a conviction in a §

2255 proceeding only if he was unrepresented in violation of         Gideon when

convicted or in other “rare cases.”     Daniels , 532 U.S. at 382–84. Mr. McMahon’s

claims do not qualify under     Daniels ’s exceptions. Accordingly, “[t]he

presumption of validity that attached to [Mr. McMahon’s] prior conviction at the

time of sentencing is conclusive,”      

and the district court did not err by


                                               -9-
considering Mr. McMahon’s 1986 conviction as a qualifying predicate felony for

ACCA sentence enhancement purposes.

                                          B.

      Mr. McMahon next contends he is entitled to a COA because the

Government sought a downward departure for substantial assistance for Ms.

Thomas, but not for him, after they both testified at Mr. Michael Sinclair’s

perjury trial. We disagree.

      Mr. McMahon and Ms. Thomas were each charged with violating 18 U.S.C.

§ 922(g) after police found a shotgun in their bedroom closet. During their trial,

they presented the testimony of Mr. Sinclair, who testified that neither defendant

placed the gun in their closet, but that it belonged to, and was placed in their

closet by, Ms. Thomas’s former husband. Later that evening, the Government

discovered Mr. Sinclair’s testimony was false and that Mr. McMahon and Ms.

Thomas had suborned it.

      After Mr. McMahon’s trial concluded, the Government charged Mr.

Sinclair with perjury. Mr. McMahon and Ms. Thomas were two of the

Government’s key witnesses in Mr. Sinclair’s trial. Thereafter, the Government

filed a substantial assistance downward departure motion for Ms. Thomas but not

for Mr. McMahon. Mr. McMahon asserts that he is entitled to habeas relief

because the “record affords no rational reason for the disparity.” Aplt.Br. 20.


                                         -10-
       It is not entirely clear whether Mr. McMahon seeks habeas relief because of

the disparity between his sentence and Ms. Thomas’s sentence or because the

Government moved for a downward departure for Ms. Thomas but not for him.

Compare 

(“The disparity between McMahon’s sentence and the sentence

of his co-defendant warrants relief.”)   with 

(“The issue is not acceptance

of responsibility, but substantial assistance to the Government.”). In the end,

however, this distinction makes little difference: the result is the same in either

circumstance.

       When sentencing a defendant, a district court must consider “the need to

avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

“However, the purpose of the guidelines is to ‘eliminate unwarranted disparities

[in sentencing] nationwide,’ not to eliminate disparity between co-defendants.”

United States v. Gallegos , 

, 1143 (10th Cir. 1997), quoting       United

States v. Garza , 

, 1100 (10th Cir. 1993) (brackets in original). Thus,

“‘the mere fact of a difference between the applicable guideline range for a

defendant [and] that of his co-defendant would [not] permit a departure, either

because the difference was too large or too small.’”     

Garza , 1 F.3d at

1100. We permit disparate sentences “‘where the disparity is explicable by the

facts on the record.’” Garza , 1 F.3d at 1101, quoting    United States v. Goddard ,


                                           -11-


, 550 (10th Cir. 1991).

       Here, the record adequately explains the disparate sentences. While Ms.

Thomas pleaded guilty to one count of violating 18 U.S.C. § 922(g), Mr.

McMahon was found guilty by jury trial of two counts of the same offense. That

Mr. McMahon was found guilty of more offenses than Ms. Thomas is one

explanation for the difference in “the applicable guideline range” and sentence

length. Gallegos , 129 F.3d at 1143 (citation omitted). Moreover, Mr.

McMahon’s sentence was enhanced under the ACCA, and it is unclear whether

this same enhancement applied to Ms. Thomas. Therefore, the disparity between

the two sentences does not entitle Mr. McMahon to § 2255 relief.

       Additionally, the Government’s failure to file a downward departure on Mr.

McMahon’s behalf is no basis for § 2255 relief. As Mr. McMahon notes, the

Government has “a power, not a duty, to file a motion when a defendant has

substantially assisted.”   Wade v. United States , 

, 185 (1992). A

prosecutor’s decision not to file a substantial assistance motion is subject to

district court review only if “the refusal was based on an unconstitutional

motive,” such as the defendant’s race or religion,      

5–86, or “was not

rationally related to any legitimate Government end.”       

       Mr. McMahon claims “[t]he Government’s refusal to move for downward

departure was unconstitutionally motivated because: (1) it was a retaliatory action


                                            -12-
for McMahon’s exercise of a protected right (his insistence on trying the very

charge that Thomas also denied); and (2) it was not rationally related to any

government end.” Aplt.Br. 25. We disagree. The magistrate judge noted “the

government expressly declined to request a reduction for McMahon because

McMahon refused to cooperate at the perjury trial unless he received use

immunity and even then the government had to use prior sworn testimony to help

McMahon ‘remember.’” Report and Recommendation at 31 n.30. Thus, contrary

to Mr. McMahon’s assertion, the Government’s refusal to move for a downward

departure was based on factors other than his decision to continue his trial.

Because the Government’s reason was constitutionally permissible and rationally

related to a government end, Mr. McMahon is not entitled to habeas relief on this

claim.

                                          C.

         Mr. McMahon next claims he is entitled to a COA because he was denied

his Sixth Amendment right to effective assistance of counsel. He points to six

specific instances of allegedly ineffective assistance. Before discussing the

specifics, however, we note that each instance must fall below the standard

announced in Strickland v. Washington , 

(1984):

         First, the defendant must show that counsel’s performance was
         deficient. This requires showing that counsel made errors so serious
         that counsel was not functioning as the “counsel” guaranteed the
         defendant by the Sixth Amendment. Second, the defendant must

                                          -13-
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

The “deficient” prong requires a defendant to “show that counsel’s

representation fell below an objective standard of reasonableness,”      

and

“[j]udicial scrutiny of counsel’s performance must be highly deferential.”            

The “prejudice” component requires the defendant to prove “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”        

To

determine if appellate counsel provided ineffective assistance by failing to raise

an issue on appeal “we examine the merits of the omitted issue.”       United States v.

Cook , 

, 392 (10th Cir. 1995). If the omitted issue is meritless,

counsel’s failure to appeal it is not a Sixth Amendment deprivation.         

We now address each of Mr. McMahon’s claims.

1. Trial Counsel Failed to Challenge the Classification of McMahon’s 1981
Second Degree Burglary Conviction as a Qualifying Predicate Felony.

      Mr. McMahon’s presentence report classified his 1981 Oklahoma second

degree burglary conviction as a qualifying “violent felony” for purposes of

sentence enhancement under the ACCA. Mr. McMahon claims his trial counsel

was ineffective because he failed to object to that classification.

      We need not reach this claim’s merits. Mr. McMahon twice concedes in his

                                           -14-
brief that, to secure relief from his ACCA enhancement, he must successfully

prove both that his counsel was ineffective for failing to challenge the

classification of his 1981 conviction and that the district court improperly relied

on his 1986 conviction.   See Aplt.Br. 10 n.4 (“In Proposition III.A., below,

McMahon alleges his trial counsel rendered ineffective assistance in failing to

challenge the classification of his 1981 state conviction for Second Degree

Burglary as a predicate offense for §924(e) enhancement. McMahon concedes he

must prevail on both propositions to warrant relief from his ACC[A] sentence.”);

n.5 (“As discussed in Proposition I, above, McMahon must prevail on

both propositions to obtain relief from the §924(e) enhancement.”). Since the

district court properly enhanced Mr. McMahon’s sentence based on his 1986

conviction, Mr. McMahon cannot satisfy      Strickland ’s prejudice component even

if his counsel improperly failed to challenge the presentence report’s

classification of his 1981 conviction.

2. Appellate Counsel Failed to Seek Appropriate Relief for Retroactive
Misjoinder.

      Mr. McMahon next claims his appellate counsel was ineffective because he

failed to raise the issue of retroactive misjoinder. Retroactive misjoinder is the

concept that evidence adduced to support a claim that an appellate court vacates

may have prejudiced any surviving counts. Mr. McMahon argues that this claim

is not novel, so the failure to raise it constituted ineffective assistance of counsel.

                                          -15-
We disagree because we find that his retroactive claim has no merit.

       The Tenth Circuit has not developed a specific standard to determine when

retroactive misjoinder occurs. However, the crux of retroactive misjoinder—that

evidence presented at trial to support one charge can spill over to other

charges—is familiar ground. We have articulated several standards for evaluating

whether an evidentiary spillover prejudices a criminal defendant. These standards

share a common feature—where the evidence supporting the contested charge is

strong, evidentiary spillovers do not warrant relief.    See, e.g. , U.S. v. McClatchey ,

, 833 (10th Cir. 2000) (determining whether evidence introduced

against coconspirators involved in separate conspiracies prejudiced a defendant);

U.S. v. Edwards , 

, 433 (10th Cir. 1995) (evaluating whether a

variance between the indictment and evidence adduced during trial prejudiced the

defendant). Courts that explicitly recognize claims for retroactive misjoinder also

focus on the strength of the evidence supporting claims that survive appeal.       See,

e.g. , United States v. Hamilton , 

, 182 (2d Cir. 2003). Accordingly,

we evaluate the strength of the evidence against Mr. McMahon on the § 922(g)

convictions to determine the merit of his retroactive misjoinder argument.

       The Government’s evidence against Mr. McMahon on the § 922(g) charges

was extremely strong. For example, Mr. McMahon took the witness stand to

testify to his possession of the shotgun. This evidence was more than sufficient


                                             -16-
for the jury to convict Mr. McMahon. The claim that joining the § 924(c) charge

prejudiced Mr. McMahon when there was overwhelming evidence of his guilt on

the § 922(g) charges is meritless. Consequently, we conclude that Mr.

McMahon’s counsel did not render ineffective assistance when he failed to appeal

this issue. See Cook , 45 F.3d at 392–93.

3. Trial Counsel Failed to Present the Defense of Entrapment by Estoppel          .

      Mr. McMahon next asserts his counsel’s failure to present the defense of

entrapment by estoppel constitutes ineffective assistance. “[E]ntrapment by

estoppel is implicated where an agent of the government affirmatively misleads a

party as to the state of the law and that party proceeds to act on the

misrepresentation so that criminal prosecution of the actor implicates due process

concerns under the Fifth and Fourteenth amendments.”           United States v.

Gutierrez-Gonzalez , 

, 1166 (10th Cir. 1999) (emphasis omitted),

quoting United States v. Nichols   , 

, 1018 (10th Cir. 1994). To invoke

this defense successfully, a defendant must show “an ‘active misleading’ by the

government agent, and actual reliance by the defendant. Further, the defendant’s

reliance must be reasonable in light of the identity of the agent, the point of law

misrepresented, and the substance of the misrepresentation.”        

quoting Nichols , 21 F.3d at 1018.




                                          -17-
      Mr. McMahon claims dictum in       United States v. Sanders , 

(10th Cir. 1994), led him to believe it was lawful for him to possess the shotgun.

However, even assuming the dictum was misleading and that he relied on it, his

claim fails because he could not have shown that government agents actively

misled him. The authors of the Sanders dictum presumably did not know Mr.

McMahon and had no intention of leading him astray. At worst, it was an

unfortunate misunderstanding by a federal court regarding a point of state law not

necessary to the decision before it. Especially in light of our “highly deferential”

review of counsel’s actions,   Strickland , 466 U.S. at 689, we can find neither

deficiency nor prejudice in Mr. McMahon’s counsel’s decision not to advance an

entrapment by estoppel defense.

4. Trial Counsel Failed to Investigate Transfer of the Shotgun.

      Mr. McMahon argues that his trial counsel rendered ineffective assistance

by failing to request an ATF form showing the transfer of the shotgun to Terry

Young. This form did not appear in the Government’s file, which trial counsel

reviewed, and Mr. McMahon concedes that the Government did not present this

form at trial. Mr. McMahon contends that if his trial counsel had obtained the

form, he would have known that Mr. McMahon’s proposed defense was a

fabrication and he would have prevented Mr. McMahon from suborning perjury.

Because evidence that he suborned perjury undermined Mr. McMahon’s


                                          -18-
credibility, he argues that his counsel’s failure to investigate the ownership of the

shotgun constituted deficient performance. Mr. McMahon raised this issue below,

which the magistrate judge dismissed as “patently ridiculous.” R&R 22. Even

Mr. McMahon recognizes the “seeming absurdity” of imposing a duty on his

counsel to save him from himself. Aplt.Br. 46. We agree with the magistrate

judge. Mr. McMahon may not place the blame for his deceitful conduct on his

trial counsel’s shoulders. Any prejudice attributed to evidence that Mr. McMahon

suborned perjury stemmed from his attempt to defraud the court rather than the

failure of his trial counsel to trace possession of the shotgun.

5. Trial Counsel Stipulated that the Ammunition and Shotgun Traveled in
Interstate Commerce.

       Mr. McMahon argues that his trial counsel’s decision to stipulate that the

shotgun and ammunition traveled in interstate commerce was deficient

performance. He contends that because § 922(g) requires that a firearm or

ammunition travel in interstate commerce, conceding this point constituted

ineffective assistance of counsel. Mr. McMahon raised this issue below and the

court concluded that this decision did not fall below an objective standard of

reasonableness. We agree. Deciding whether or not to concede an element of a

statute is a tactical decision. We review tactical decisions made by trial counsel

with substantial deference.    See Strickland v. Washington , 

, 689-91

(1984) (there is a strong presumption trial strategy was effective);   United States v.

                                            -19-
Chavez-Marquez , 

, 263 (10th Cir. 1995) (“highly deferential” review

for trial counsel’s decision to stipulate to a prior conviction).

      As the magistrate judge noted, it is standard practice in the Northern

District of Oklahoma to stipulate to the interstate commerce requirement. In

addition, the government presented testimony from an ATF agent that the shotgun

and ammunition were not made in Oklahoma. Given this standard practice, and

the testimony that the shotgun at issue would satisfy interstate commerce element,

we cannot possibly conclude that it was objectively unreasonable for trial counsel

to stipulate this point. Accordingly, we hold that this tactical decision did not

constitute ineffective assistance of counsel.

6. Trial Counsel Failed to Adequately Investigate Search and Seizure Issues.

      Mr. McMahon argues that his trial counsel did not adequately investigate

evidence to support his suppression motion. To support this argument, Mr.

McMahon points to information developed by a private investigator about the

controlled buys that provided probable cause for the warrant to search his

premises. An affidavit filed by this private investigator alleges a number of

inconsistencies in the search warrant affidavits. The investigator claims that the

Tulsa Police Department’s property room could not produce receipts from the

controlled buys that took place on August 31 and October 3, 1994. He contends

that he requested these receipts twice, once in May 1998 and again in February


                                          -20-
2000. In addition, he claims that a physical survey of the apartment building

where the buys took place impeached allegations in the police officers’ affidavits.

Mr. McMahon’s trial counsel did not conduct an independent investigation to

counter the veracity of police officer accounts of the controlled buys. Instead,

trial counsel presented testimony from an alibi witness attesting that Mr.

McMahon was in her presence during the buys. Mr. McMahon argued this point

below and the court concluded that this failure to investigate did not amount to

ineffective assistance of counsel. We agree.

        A habeas petitioner cannot succeed on an ineffective assistance claim by

showing that there was some evidence that the trial counsel failed to investigate.

Rather, the habeas petitioner must demonstrate that the failure to investigate

additional evidence was objectively unreasonable and would have produced a

different result at trial.   Strickland , 466 U.S. at 687. Even if we assume that an

investigation by Mr. McMahon’s trial counsel would have produced the

information developed by the private investigator, he fails to show that this

information “undermine[s] confidence in the outcome” of his trial.      

        At the suppression hearing McMahon’s trial counsel argued that there were

inconsistencies in search warrant affidavits provided by officers involved in the

controlled buy. Despite trial counsel’s efforts to impeach the search warrant

affidavits, the trial court denied the suppression motion, noting that the officers’


                                            -21-
testimony was more believable than the testimony of Mr. McMahon and his alibi

witness. At most, the information in the private investigator’s affidavit, which has

not been subjected to adversarial testing, would have diminished the credibility of

the officers’ testimony. That the police department could not produce receipts

some three to five years after the events in question does not mean the events did

not take place, and factual discrepancies not necessarily going to the ultimate

issue are highly unlikely to have led the court to a different result. Accordingly,

we reject Mr. McMahon’s argument that his trial counsel provided ineffective

assistance by failing to investigate the testimony of officers involved with the

controlled buy. Because we can resolve Mr. McMahon’s claim that his trial

counsel failed to investigate the officers’ testimony on the record before us, we

deny his request to remand for an evidentiary hearing on this matter.       Foster v.

Ward , 

, 1184 (10th Cir. 1999).

                                             D.

       Finally, Mr. McMahon argues that he is actually innocent and was only

convicted as a result of officers lying in their search warrant affidavits. He

asserts that habeas relief is appropriate because the officers’ actions constituted

egregious misconduct by the government. Mr. McMahon did not raise this issue

at trial or on direct appeal. In most cases, the failure to raise an issue at trial or

on direct appeal results in waiver of the claim.    See, e.g. , U.S. v. Cervini , 379


                                            -22-
F.3d 987, 990 (10th Cir. 2004) (“A § 2255 motion is not intended as a substitute

for an appeal.”). However, Mr. McMahon argues that the misconduct by the

government was a “fundamental miscarriage of justice” that justifies an exception

to any procedural bar.   

(where a failure to consider federal claims

will result in a fundamental miscarriage of justice the procedural bar does not

apply). Moreover, he argues that his trial counsel’s failure to raise this argument

amounted to ineffective assistance. We may combine our analysis of these two

arguments. Where a claim has no merit, the failure to raise the issue is not

constitutionally deficient performance.     See Cook , 45 F.3d at 393 (10th Cir.

1995). Because we conclude that Mr. McMahon’s claim that his prosecution was

a fundamental miscarriage of justice has no merit, the failure to raise this issue

was not ineffective assistance of counsel.

       To demonstrate that his allegations of misconduct by the government

produced a fundamental miscarriage of justice, Mr. McMahon must show that a

constitutional violation probably caused the conviction of an innocent person.

See Murray v. Carrier , 

, 495-96 (1986). To support his contention

that he was actually innocent Mr. McMahon must provide “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.”    Schlup v.

Delo , 

, 324 (1995). Mr. McMahon provides no new and reliable


                                            -23-
evidence to support his claim of actual innocence. Instead, he rehashes evidence

that was available at trial and speculates, without any credible evidence, that the

Government acted deceitfully. These arguments do little to counter the strongest

piece of evidence pointing to his guilt—his sworn testimony attesting to

possession of the shotgun. Mr. McMahon’s claim of egregious misconduct by the

government has no merit and we reject it.

                                         III.

      Accordingly, we DENY Peter J. McMahon’s request for a certificate of

appealability and DISMISS this appeal.



                                                Entered for the Court,



                                                PATRICK FISHER, Clerk




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