FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 3, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3116 (D.C. Nos. 2:15-CV-02621-CM & CLIFFORD A. DODDS, 2:13-CR-20043-CM-1) (D. Kan.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HOLMES, McHUGH, and MORITZ, Circuit Judges. _________________________________
Clifford Dodds, a federal prisoner, seeks a certificate of appealability (COA)
to appeal the district court’s denial of his 28 U.S.C. § 2255 motion asserting
ineffective assistance of counsel. Because Dodds has failed to demonstrate
entitlement to a COA, we deny his request for a COA and dismiss this matter.
After Dodds was charged with numerous federal drug and firearm offenses, he
moved to suppress certain evidence. While that motion was pending, the government
submitted a plea offer to Dodds agreeing to 120 months’ imprisonment if he
withdrew his motion to suppress and pleaded guilty to one count. The plea offer
indicated it expired on December 2, 2013, a few weeks prior to the suppression
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. hearing. Dodds rejected this offer, and the district court subsequently denied his
motion to suppress.
Dodds ultimately accepted a second plea offer under which he pleaded guilty
to possession with intent to distribute 28 grams or more of cocaine base (crack
cocaine) within 1000 feet of a school and possession of a firearm in furtherance of a
drug trafficking crime. Both parties agreed, under Fed. R. Crim. P. 11(c)(1)(C), that
Dodds should be sentenced to 210 months’ imprisonment followed by eight years of
supervised release. A presentence report (PSR) prepared under the 2014 Sentencing
Guidelines determined that Dodds was a career offender under United States
Sentencing Guidelines Manual (USSG) § 4B1.1 (U.S. Sentencing Comm’n 2013),
and that his sentencing range should be 262 to 327 months’ imprisonment.
Nevertheless, the district court accepted the binding Rule 11(c)(1)(C) plea agreement
and sentenced Dodds to 210 months.
Dodds filed a § 2255 motion in February 2015 asserting his counsel,
John Kerns, was ineffective in representing him.1 First, he claimed Kerns was
ineffective in negotiating the government’s 120-month plea offer. Specifically, he
asserted that Kerns didn’t advise him as to whether that offer should be accepted;
guaranteed that Dodds would prevail on the motion to suppress evidence, causing
Dodds not to give any meaningful consideration to that plea offer; failed to warn
1 Dodds’ plea agreement contains a waiver of appellate rights, but permits him to bring an ineffective assistance claim under § 2255 if the claim is related to counsel’s ineffective assistance in negotiating or entering the plea. The district court ruled the government waived the appellate waiver by not seeking to enforce it. 2 Dodds that the plea offer would expire before the suppression hearing; and failed to
inform him that he could be sentenced as a career offender, which would result in a
substantially higher sentence than the 120-month plea offer. Dodds also claimed
Kerns was ineffective by failing to object to the PSR’s determination that Dodds
prior convictions qualified him as a career offender under USSG § 4B1.1.2
The district court first denied Dodds’ claim that Kerns was ineffective for
failing to object to the PSR’s career-offender designation. The court reasoned that
Kerns couldn’t have been ineffective in failing to object because the court accepted
the parties’ Rule 11(c)(1)(C) plea agreement and, thus, didn’t sentence Dodds under
the Sentencing Guidelines or rule on whether Dodds was a career offender. Because
the district court accepted the parties’ plea agreement, Dodds suffered no prejudice as
to the PSR’s determination that he should be sentenced as a career offender.
The district court conducted a hearing on Dodds’ remaining claim that Kerns
was ineffective in the initial plea negotiation process. Based on Kerns’ testimony
and case file records, as well as Dodds’ affidavits, the district court denied Dodds’
§ 2255 motion. The court, after finding Kerns’ testimony credible, concluded that
(1) Dodd insisted Kerns file a motion to suppress; (2) Kerns didn’t encourage Dodds
2 Dodds later amended his § 2255 motion to claim one of his § 4B1.1 prior convictions should not have qualified as a crime of violence for sentencing purposes in light of Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague). The district court denied Dodd’s Johnson claim on the merits after the Supreme Court ruled in Beckles v. United States, 137 S. Ct. 886, 890 (2017), that the advisory Sentencing Guidelines were not subject to a Johnson vagueness claim. Dodds does not seek a COA on that issue. 3 to file that motion; (3) Kerns never advised Dodds that he had 100 percent chance of
success on the suppression motion or otherwise guaranteed its success; (4) Kerns
read the 120-month plea offer to Dodds verbatim, including the December 2
deadline; (5) Dodds didn’t ask about the government’s 120-month plea offer after the
suppression motion was denied because Dodds was fully aware that the offer had
expired; (6) Kerns never said the offer would remain open after December 2; and
(7) the potential that Dodds would be sentenced as a career offender was inherent in
any discussion of the 120-month plea offer, and Kerns discussed that risk with Dodds
and explained that risk had to be considered in deciding whether to accept the
120-month plea offer. Based on these findings and application of the ineffective
assistance of counsel standards articulated in Strickland v. Washington, 466 U.S. 668,
687, 694 (1984), the district court ruled Kerns did not provide ineffective assistance
of counsel. The court declined to issue a COA.
A prisoner challenging a denial of a 28 U.S.C. § 2255 motion must obtain a
COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C.
§ 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). “The petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). “In reviewing the denial of a § 2255 motion, we review the district court’s
legal rulings de novo and its findings of fact for clear error.” United States v.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 3, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3116 (D.C. Nos. 2:15-CV-02621-CM & CLIFFORD A. DODDS, 2:13-CR-20043-CM-1) (D. Kan.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HOLMES, McHUGH, and MORITZ, Circuit Judges. _________________________________
Clifford Dodds, a federal prisoner, seeks a certificate of appealability (COA)
to appeal the district court’s denial of his 28 U.S.C. § 2255 motion asserting
ineffective assistance of counsel. Because Dodds has failed to demonstrate
entitlement to a COA, we deny his request for a COA and dismiss this matter.
After Dodds was charged with numerous federal drug and firearm offenses, he
moved to suppress certain evidence. While that motion was pending, the government
submitted a plea offer to Dodds agreeing to 120 months’ imprisonment if he
withdrew his motion to suppress and pleaded guilty to one count. The plea offer
indicated it expired on December 2, 2013, a few weeks prior to the suppression
* 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. hearing. Dodds rejected this offer, and the district court subsequently denied his
motion to suppress.
Dodds ultimately accepted a second plea offer under which he pleaded guilty
to possession with intent to distribute 28 grams or more of cocaine base (crack
cocaine) within 1000 feet of a school and possession of a firearm in furtherance of a
drug trafficking crime. Both parties agreed, under Fed. R. Crim. P. 11(c)(1)(C), that
Dodds should be sentenced to 210 months’ imprisonment followed by eight years of
supervised release. A presentence report (PSR) prepared under the 2014 Sentencing
Guidelines determined that Dodds was a career offender under United States
Sentencing Guidelines Manual (USSG) § 4B1.1 (U.S. Sentencing Comm’n 2013),
and that his sentencing range should be 262 to 327 months’ imprisonment.
Nevertheless, the district court accepted the binding Rule 11(c)(1)(C) plea agreement
and sentenced Dodds to 210 months.
Dodds filed a § 2255 motion in February 2015 asserting his counsel,
John Kerns, was ineffective in representing him.1 First, he claimed Kerns was
ineffective in negotiating the government’s 120-month plea offer. Specifically, he
asserted that Kerns didn’t advise him as to whether that offer should be accepted;
guaranteed that Dodds would prevail on the motion to suppress evidence, causing
Dodds not to give any meaningful consideration to that plea offer; failed to warn
1 Dodds’ plea agreement contains a waiver of appellate rights, but permits him to bring an ineffective assistance claim under § 2255 if the claim is related to counsel’s ineffective assistance in negotiating or entering the plea. The district court ruled the government waived the appellate waiver by not seeking to enforce it. 2 Dodds that the plea offer would expire before the suppression hearing; and failed to
inform him that he could be sentenced as a career offender, which would result in a
substantially higher sentence than the 120-month plea offer. Dodds also claimed
Kerns was ineffective by failing to object to the PSR’s determination that Dodds
prior convictions qualified him as a career offender under USSG § 4B1.1.2
The district court first denied Dodds’ claim that Kerns was ineffective for
failing to object to the PSR’s career-offender designation. The court reasoned that
Kerns couldn’t have been ineffective in failing to object because the court accepted
the parties’ Rule 11(c)(1)(C) plea agreement and, thus, didn’t sentence Dodds under
the Sentencing Guidelines or rule on whether Dodds was a career offender. Because
the district court accepted the parties’ plea agreement, Dodds suffered no prejudice as
to the PSR’s determination that he should be sentenced as a career offender.
The district court conducted a hearing on Dodds’ remaining claim that Kerns
was ineffective in the initial plea negotiation process. Based on Kerns’ testimony
and case file records, as well as Dodds’ affidavits, the district court denied Dodds’
§ 2255 motion. The court, after finding Kerns’ testimony credible, concluded that
(1) Dodd insisted Kerns file a motion to suppress; (2) Kerns didn’t encourage Dodds
2 Dodds later amended his § 2255 motion to claim one of his § 4B1.1 prior convictions should not have qualified as a crime of violence for sentencing purposes in light of Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague). The district court denied Dodd’s Johnson claim on the merits after the Supreme Court ruled in Beckles v. United States, 137 S. Ct. 886, 890 (2017), that the advisory Sentencing Guidelines were not subject to a Johnson vagueness claim. Dodds does not seek a COA on that issue. 3 to file that motion; (3) Kerns never advised Dodds that he had 100 percent chance of
success on the suppression motion or otherwise guaranteed its success; (4) Kerns
read the 120-month plea offer to Dodds verbatim, including the December 2
deadline; (5) Dodds didn’t ask about the government’s 120-month plea offer after the
suppression motion was denied because Dodds was fully aware that the offer had
expired; (6) Kerns never said the offer would remain open after December 2; and
(7) the potential that Dodds would be sentenced as a career offender was inherent in
any discussion of the 120-month plea offer, and Kerns discussed that risk with Dodds
and explained that risk had to be considered in deciding whether to accept the
120-month plea offer. Based on these findings and application of the ineffective
assistance of counsel standards articulated in Strickland v. Washington, 466 U.S. 668,
687, 694 (1984), the district court ruled Kerns did not provide ineffective assistance
of counsel. The court declined to issue a COA.
A prisoner challenging a denial of a 28 U.S.C. § 2255 motion must obtain a
COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C.
§ 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). “The petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). “In reviewing the denial of a § 2255 motion, we review the district court’s
legal rulings de novo and its findings of fact for clear error.” United States v.
Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001).
4 In his Application, Dodds points out that when Kerns testified at the hearing,
he had difficulty recalling the details of his conversations with Dodds. It is true that
Kerns explained that he could not independently recollect the details of his
conversations with Dodds. But he also testified that he reviewed his notes and
records and he was almost 100 percent certain that he read the plea offer to Dodds
verbatim. Moreover, the terms of the plea offer included a discussion of the potential
risk that Dodds could be sentenced as a career offender, and included the December
2, 2013 deadline. Kerns also testified that he was certain he discussed the risk of
being sentenced as a career offender because that was the primary issue in Dodds’
case. Finally, Kerns testified that he never guaranteed any client success on motions,
and he would not have done so regarding Dodds’ suppression motion.
Dodds has not shown that reasonable jurists could debate whether the district
court’s credibility findings were clearly erroneous. See United States v. Rantz,
862 F.2d 808, 810 (10th Cir. 1988) (reviewing for clear error a district court’s factual
findings after an evidentiary hearing). Nor has he shown that the court's legal
conclusions are reasonably debatable.
We therefore deny a COA and dismiss the appeal.
Entered for the Court
Nancy L. Moritz Circuit Judge