                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    September 27, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

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

              Plaintiff - Appellee,

       v.                                               No. 06-3134
                                             (D. Ct. Nos. 05-CV-3225-RDR and
 M ICHA EL P. M cELH IN EY ,                         98-CR-40083-RDR)
                                                          (D . Kan.)
              Defendant - Appellant.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      M ichael M cElhiney, a federal prisoner appearing pro se, seeks a certificate

of appealability (“COA”) to challenge the District Court’s denial of his 28 U.S.C.

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

§ 2253(c)(1) (a petitioner may not appeal the denial of habeas relief under § 2255

unless a COA is issued). W e will issue a CO A “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This standard requires the petitioner to demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

         M r. M cElhiney was convicted of conspiracy to distribute and possess

heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(b)(1)(C) and

846, and aiding and abetting the distribution of heroin, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. M r. M cElhiney committed these crimes

as part of a prison drug smuggling operation while he was an inmate at the federal

penitentiary in Leavenworth, Kansas. On direct appeal, M r. M cElhiney’s

appointed counsel raised four issues for review . This Court affirmed his

conviction. See United States v. M cElhiney, 85 Fed. App’x 112 (10th Cir. 2003).

M r. M cElhiney now asserts that he received ineffective assistance of appellate

counsel due to counsel’s failure to raise seven additional issues on appeal. The

District Court, in a thorough M emorandum and Order filed on M arch 2, 2006,

denied M r. M cElhiney’s § 2255 motion, and subsequently denied his request for a

C OA .

         In order to prevail on an ineffective assistance of counsel claim, a habeas

petitioner must show that his counsel’s conduct “fell below an objective standard

of reasonableness” and that such deficient performance resulted in prejudice to

the defense— that is, “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). As an initial

matter, appellate counsel is not required to raise every nonfrivolous issue.

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Rather, “[t]he w eeding out of weak claims to be raised on appeal is the hallmark

of effective advocacy, because every weak issue in an appellate brief or argument

detracts from the attention a judge can devote to the stronger issues, and reduces

appellate counsel’s credibility before the court.” Scott v. M ullin, 303 F.3d 1222,

1230 n.4 (10th Cir. 2002). Furthermore, “if the omitted issue is w ithout merit,

counsel’s failure to raise it does not constitute constitutionally ineffective

assistance of counsel.” United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995)

(internal quotation marks omitted).

      M r. M cElhiney argues that his appellate counsel’s performance was

constitutionally deficient for failing to raise the following claims: (1) the trial

judge erroneously excluded a prospective juror for cause; (2) an ambiguous

question posed to prospective jurors might have resulted in an unrepresentative

jury pool; (3) the Government failed to preserve exculpatory evidence; (4) M r.

M cElhiney was the victim of entrapment as a matter of law; (5) new evidence

indicates that the Government housed informant witnesses together in custody in

order to rehearse and prepare their testimony; (6) the trial court erred in refusing

to subpoena a witness M r. M cElhiney requested; and (7) M r. M cElhiney’s

sentence violates the Sixth Amendment as stated in Blakely v. Washington, 542

U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005).




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       As to M r. M cElhiney’s fourth claim, entrapment as a matter of law exists

“only when there is undisputed testimony which show s conclusively and

unmistakably that an otherwise innocent person was induced to commit the

criminal act.” United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005)

(internal quotation marks and alteration omitted). W e have further explained that:

      [i]nducement is government conduct which creates a substantial risk
      that an undisposed person or otherwise law -abiding citizen would
      commit the offense. Simple evidence that a government agent
      solicited, requested, or approached the defendant to engage in
      criminal conduct, standing alone, is insufficient to constitute
      inducement. Inducement also will not be shown by evidence that the
      government agent initiated the contact with the defendant or
      proposed the crime.

Id. (internal quotation marks, citations, and alteration omitted). M r. M cElhiney’s

mere assertion that one of the Government’s witnesses “began working for the

government as a prison informant before the time of any of the alleged criminal

activity in this case” cannot possibly meet the standard required to find

entrapment as a matter of law and therefore counsel’s failure to raise the issue on

appeal does not amount to constitutionally deficient performance.

      As for the rest of M r. M cElhiney’s claims, for substantially the same

reasons as given by the District Court, we cannot say “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner.” See Slack, 529 U.S. at 484. Accordingly,




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we DENY M r. M cElhiney’s request for a COA and DISM ISS this appeal.

                                    ENTERED FOR TH E CO UR T,


                                    Deanell Reece Tacha
                                    Chief Circuit Judge




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