United States v. Chaney

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 24, 2024
• Docket: 23-3240
• Status: Unpublished

Opinion

Appellate Case: 23-3240 Document: 010111055084 Date Filed: 05/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3240 (D.C. No. 2:23-CV-02331-HLT) DAVONTE LARON CHANEY, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

Petitioner Davonte Laron Chaney, appearing pro se, requests a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2255

application. For the reasons stated below, we deny his request for a COA and dismiss the

matter.

I.

A federal jury found Petitioner guilty of bank robbery and brandishing a firearm

during a bank robbery. The district court sentenced Petitioner to 120 months’

imprisonment. After his conviction, Petitioner moved to vacate his sentences under 28

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3240 Document: 010111055084 Date Filed: 05/24/2024 Page: 2

U.S.C. § 2255, contending he received ineffective assistance of counsel. The district

court dismissed Petitioner’s motion, holding Petitioner failed to show his attorney

provided constitutionally ineffective assistance that prejudiced Petitioner. The district

court also denied Petitioner a COA. Petitioner now requests from us a COA to appeal the

district court’s dismissal.

II.

To receive a COA, Petitioner must make a “substantial showing of the denial of a

constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C.

§ 2253(c)(2)). A petitioner makes such a showing if he demonstrates “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. McDaniel, 529 U.S. 473, 484 (2000)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Petitioner argues the district court violated his Sixth Amendment rights by

prosecuting him while he was represented by ineffective counsel. The Sixth Amendment

right to counsel includes a right to effective representation. Strickland v. Washington,

466 U.S. 668, 685 (1984). To establish a defendant received ineffective assistance of

counsel, a defendant must show (1) his counsel provided constitutionally deficient

assistance, and (2) the deficiency prejudiced the defendant. Id. at 687–88. Therefore, for

us to issue Petitioner a COA, Petitioner must show “that reasonable jurists could debate

whether” (1) Petitioner received constitutionally deficient representation, and (2) the

deficiency prejudiced Petitioner. See Slack, 529 U.S. at 484.

2 Appellate Case: 23-3240 Document: 010111055084 Date Filed: 05/24/2024 Page: 3

First, Petitioner argues he received ineffective representation because his counsel

failed to “get a document entered in over the weekend before court resumed Monday

April 25, 2022.” In reviewing a petition for a COA, we do not consider issues a

petitioner did not raise in the district court. Owens v. Trammell, 792 F.3d 1234, 1246

(10th Cir. 2015) (quoting Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 722 (10th Cir.

1993)). If a petitioner does not make an argument in his habeas petition, he waives that

argument on appeal. Id. (citing Stouffer v. Trammell, 738 F.3d 1205, 1222 n.13 (10th

Cir. 2013); Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000); Rhine v. Boone, 182

F.3d 1153, 1154 (10th Cir. 1999)). We will hold an argument waived even if a petitioner

generally alleged ineffective assistance of counsel in his motion to vacate but includes a

novel specific claim of ineffective assistance of counsel for the first time on appeal.

See Milton v. Miller, 812 F.3d 1252, 1264 (10th Cir. 2016).

At the district court, Petitioner did not raise his claim about his counsel’s failure to

enter a document—in either his § 2255 motion or his reply brief.1 So we hold that

Petitioner waived the issue, and we do not consider it. See Owens, 792 F.3d at 1246.

Second, Petitioner argues—as he did in his § 2255 motion—that his counsel

provided ineffective assistance by failing to move to suppress evidence discovered by law

enforcement while executing a search warrant on Petitioner’s residence and vehicle.

Petitioner argues that law enforcement violated his Fourth Amendment rights by seizing

and detaining him during the search.

1 We need not—and therefore do not—answer whether we would review an issue a petitioner only made in a reply brief at the district court. 3 Appellate Case: 23-3240 Document: 010111055084 Date Filed: 05/24/2024 Page: 4

For a district court to suppress evidence on the basis of the Fourth Amendment,

the movant must show that law enforcement would not have discovered the evidence “but

for” the Fourth Amendment violation. United States v. Torres-Castro, 470 F.3d 992, 999

(10th Cir. 2006). Although Petitioner argues at length that law enforcement violated his

Fourth Amendment rights by detaining him, Petitioner has not explained how his

detention caused law enforcement to discover the evidence in his house or vehicle. Nor

can he: law enforcement seized incriminating evidence from Petitioner’s residence and

vehicle subject to search warrants supported by probable cause. So even assuming law

enforcement violated Petitioner’s Fourth Amendment rights, Petitioner’s counsel could

not have successfully moved to suppress the evidence recovered during Petitioner’s

detainment.

Because Petitioner’s Fourth Amendment argument lacks merit, reasonable jurists

cannot debate whether Petitioner’s counsel provided constitutionally deficient assistance

by not raising the issue. See Slack, 529 U.S. at 484. We therefore deny Petitioner’s

request for a COA. Because we DENY Petitioner a COA, we do not reach the merits of

his petition and DISMISS this matter.

Entered for the Court

Joel M. Carson III Circuit Judge