F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 11, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                         No. 07-5015
       v.                                               (N.D. Oklahoma)
 STEPHEN RAM ONT HARDRID GE,                    (D.C. Nos. 06-CV-399-HDC and
                                                       00-CR-126-HDC)

              Defendant-Appellant.


                                      OR DER


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Stephen Hardridge, a federal prisoner proceeding pro se, seeks a certificate

of appealability (“COA”) to appeal the district court’s order denying his 28

U.S.C. § 2255 petition to vacate, modify, or set aside his sentence. In his § 2255

petition, M r. Hardridge alleged (1) the presentation of perjured testimony during

his trial created constitutional error and also constituted prosecutorial misconduct,

and (2) his trial counsel was ineffective for failing to object to that testimony.

M r. Hardridge also seeks leave to proceed in forma pauperis (“IFP”). For

substantially the same reasons set forth by the district court, we agree that M r.

Hardridge is not entitled to a CO A. W e therefore deny his motion to proceed IFP

and dismiss this matter.
                                  I. BACKGROUND

      A grand jury indicted M r. Hardridge, along w ith sixteen co-defendants,

charging participation in a drug distribution conspiracy spanning eight years. A

jury convicted M r. Hardridge of conspiracy to possess with intent to distribute

cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 846 and 21

U.S.C. § 841(a)(1). The district court sentenced M r. Hardridge to 292 months’

imprisonment, a 10-year term of supervised release, and a $10,000 fine. W e

affirmed M r. H ardridge’s conviction and sentence on direct appeal. United States

v. Hardridge, 100 Fed. Appx. 743 (10th Cir. 2004). After the Supreme Court

vacated our decision and remanded it in light of United States v. Booker, 

(2005), w e reaffirmed M r. H ardridge’s conviction and sentence. United

States v. Hardridge, 139 Fed. Appx. 47 (10th Cir. 2005). M r. Hardridge timely

filed a § 2255 motion.

                                   II. DISCUSSION

      In order to obtain a COA, M r. Hardridge must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make

this showing “by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 

, 327 (2003). “[A] claim can be

debatable even though every jurist of reason might agree, after the COA has been

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granted and the case has received full consideration, that [the] petitioner will not

prevail.” 

      M r. H ardridge contends that the government knowingly permitted two

witnesses, Jennifer Natale and Netha Taylor, to give perjured testimony regarding

drug transactions with him that did not take place. According to M r. H ardridge,

both witnesses falsely testified that he was involved in certain deliveries of

cocaine in August, September, and October 2000. M r. Hardridge maintains his

participation was impossible because he was incarcerated during these months.

      The district court examined and rejected M r. Hardridge’s arguments that

the government knowingly presented perjured testimony. The disputed testimony

involved transactions that took place in 1999, not 2000. Although M s. Taylor

did testify that she was involved in the transport of cocaine in October and

November 2000, she did not identify the recipient of these deliveries. The district

court also rejected M r. Hardridge’s contention that the use of this testimony

violated his right to a fair trial or constituted prosecutorial misconduct because he

did not raise this issue in his direct appeal.

      Because M r. Hardridge’s claim regarding perjured testimony failed on the

merits, the district court concluded that his related ineffective assistance of

counsel claim, which was based on his counsel’s failure to object to this

testimony, also failed. M oreover, the district court noted that counsel did in fact

raise a similar but unsuccessful objection to the presentence report that stated that


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M r. Hardridge “could not have been responsible for large amounts of drugs as

maintained in the presentence investigation report” “because he was in custody

during much of the ongoing conspiracy.” Dist. Ct. Order at 5, filed Jan. 12, 2007.

Furthermore, M r. H ardridge also unsuccessfully raised this claim on direct appeal.

       Here, for substantially the same reasons set forth in the district court’s

order, we conclude that M r. Hardridge’s challenges lack merit and his counsel

was not ineffective for failing to raise them.

                                 III. CONCLUSION

      Accordingly, we DENY M r. Hardridge’s request for a COA, DENY his

motion to proceed IFP, and DISM ISS the matter.


                                 Entered for the Court,
                                 ELISABETH A. SHUM AKER, Clerk


                                 By:
                                   Deputy Clerk




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