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.

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 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.1 As discussed below, and found by the 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 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