United States v. Davis

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 18, 1998
• Docket: 96-3293
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 18 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-3293 (D.C. Nos. 96-CV-3114 & BURLON R. DAVIS, 89-CR-20081) (D. Kan.) Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant Burlon R. Davis appeals from the denial of his motion for

post-conviction relief under 28 U.S.C. § 2255. See United States v. Davis , 939

F. Supp. 810 (D. Kan. 1996). We exercise jurisdiction under 28 U.S.C. § 1291 1

and affirm.

The factual and procedural background is detailed in the district court’s

opinion and will not be repeated here. Defendant challenged his conviction for

several drug trafficking offenses on the grounds of ineffective assistance of

counsel and unconstitutional jury impanelment. The district court held defendant

had not satisfied either the deficient-performance or prejudice requirements for

his ineffective assistance claims, see generally Strickland v. Washington , 466

U.S. 668, 686-87 (1984), and did not establish any constitutional impropriety in

connection with the selection of his jury.

On appeal, defendant raises nine issues. He contends counsel should have

been found ineffective for (1) failing to investigate and subpoena several

witnesses; (2) failing to interview defendant to discover and present the defense;

(3) failing to cross-examine codefendants Dana Nelson and William Nelson Sr.;

1 The district court denied a certificate of appealability, a prerequisite to appeal under the then newly enacted Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). However, “since that time, . . . we have held that § 2255 movants who [like defendant] filed their applications with the district court prior to AEDPA’s effective date need not obtain a certificate of appealability to proceed in this court.” United States v. Alvarez , 137 F.3d 1249, 1250 n.2 (10th Cir. 1998).

-2- (4) failing to obtain an expert witness to take a voice exemplar for comparison

with voices on drug transaction tapes; (5) failing to object to admission of letters

seized from defendant on the ground that his authorship of the letters was not

proven and failing to present evidence to that effect; (6) failing to challenge the

impaneling of an all-white jury; and (7) overall inadequate performance. He also

argues the district court erred in holding that (8) his jury was constitutionally

selected and impaneled and (9) an evidentiary hearing was not warranted. Upon

review of the post-conviction record and the transcript of defendant’s criminal

trial, we affirm.

With respect to the issue of jury panel selection, and most of defendant’s

ineffective assistance claims, we have nothing to add to the district court’s

analysis. However, we note that defendant’s sustained insistence on his right to

an evidentiary hearing has special import with respect to certain disputed

allegations of counsel (mis)conduct which, involving matters outside the trial

process, may not have been “conclusively” resolvable on “the files and records of

the case” without a hearing pursuant to § 2255. See Machibroda v. United States ,

368 U.S. 487, 494-95 (1962) (hearing necessary to resolve factual disputes which

“related primarily to purported occurrences outside the courtroom and upon which

the record could, therefore, cast no real light”); Moore v. United States , 950 F.2d

-3- 656, 661 (10th Cir. 1991) (hearing necessary when “factual disputes and

inconsistencies beyond the record exist”).

To obviate this concern, we do not reach the extra-record facts regarding

counsel’s conduct found by the district court. Instead, based on our review of the

trial transcript, we agree with the district court’s alternate conclusion that the

government’s case against defendant was overwhelming, and, thus, “[d]efendant

has simply not met his burden of showing ‘that the decision reached would

reasonably likely have been different absent the alleged errors.’” Davis , 939

F. Supp. at 817 (quoting Strickland , 466 U.S. at 696). Accordingly, on this

lack-of-prejudice rationale, we can confidently say in accord with § 2255 that the

“files and records of the case of the case” do “conclusively show that the

[defendant] is entitled to no relief.”

The judgment of the United States District Court for the District of Kansas

is AFFIRMED. Defendant’s motion for transcripts and motion for stay are

denied. Defendant’s motion for reimbursement of the appellate filing fee--paid

on threat of dismissal pursuant to a subsequently vacated assessment order, and

contrary to defendant’s extant in forma pauperis status--is granted. The district

-4- court is hereby directed to refund the fee to defendant’s prison account.

Defendant’s renewed motion to proceed in forma pauperis is, accordingly, denied

as moot. The mandate shall issue forthwith

Entered for the Court

Wade Brorby Circuit Judge

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