FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS June 21, 2012

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 12-3075
 v.                                           (D.C. Nos. 11-CV-04072-RDR and
                                                   6:09-CR-40049-RDR-1)
 GREGORY D. CROSBY,                                       (D. Kan.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Defendant-Appellant, Gregory D. Crosby, a prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s denial of

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

Finding that he has not made a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c), we deny Mr. Crosby’s request for a

COA and dismiss this appeal.

      Mr. Crosby was convicted of attempted bank robbery and giving false

information and was sentenced to 262 months’ imprisonment. He appealed his

bank robbery conviction to this court, and it was affirmed. See United States v.

Crosby, 416 F. App’x 776 (10th Cir. 2011). Mr. Crosby’s § 2255 motion asserted
claims of ineffective assistance of counsel and claimed that he was denied access

to a law library, that the trial court erred in denying his motion to dismiss the

indictment, and that newly discovered evidence warranted relief. 1 R. 40-56.

The district court denied his motion. United States v. Crosby, No. 09-cv-40049-

01-RDR, 

 (D. Kan. Mar. 16, 2012).

      In order to receive a COA, Mr. Crosby must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means that

“he must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

, 484 (2000). To show ineffective assistance of counsel, Mr. Crosby

must demonstrate deficient performance by counsel and prejudice. Strickland v.

Washington, 

, 687 (1984)

      Mr. Crosby first argues that he was convicted of bank robbery without a

finding of actual intimidation beyond a reasonable doubt. Aplt. Br. 2-3, 7-9.

This claim was raised on direct appeal and may not be raised again in a § 2255

motion. United States v. Warner, 

, 291 (10th Cir. 1994). Of course,

we are bound by the rejection of the claim on direct appeal. That means that it

cannot support an ineffective-assistance claim. As the district court noted, Mr.

Crosby cannot prove prejudice. Thus, the district court’s rejection of the claim is

not reasonably debatable.

      Mr. Crosby also argues that he received ineffective assistance of counsel

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because there was no physical or DNA evidence to implicate him, counsel failed

to properly investigate his case, and counsel failed to mention $3,000 that was

under the driver’s seat of the car. Aplt. Br. 10-13. The district court’s resolution

of the ineffective-assistance claim presented to it is not reasonably debatable.

Counsel did remind the jury that none of Mr. Crosby’s DNA was found on the

evidence. Crosby, 

 at *5. Regardless, the evidence was

overwhelming, including three eye-witness identifications of Mr. Crosby. Id.

 at *5-*6. Furthermore, nothing about $3,000 under the seat of a

car was raised before the district court. 1 R. 40-56. Therefore, we will not

consider it here.

      Mr. Crosby also asks that we review the record de novo because the “court

should have consider [sic] this more carefully.” Aplt. Br. 10, 14. On collateral

review, we have applied the legal standards above.

      We DENY a COA and DISMISS the appeal. All pending motions are

denied.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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