United States v. Long

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 5, 2018
• Docket: 18-5015
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-5015 (D.C. Nos. 4:16-CV-00141-JHP-FHM and DEANTA MARQUIS LONG, 4:11-CR-00086-JHP-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________

Deanta Long requests a certificate of appealability (“COA”) to appeal the

denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.

I

Long was convicted of several cocaine and firearms charges in 2013. He was

sentenced to 211 months’ imprisonment. We affirmed his conviction on direct

appeal. United States v. Long, 774 F.3d 653, 656 (10th Cir. 2014). We rejected

Long’s arguments that: (1) a search warrant affidavit failed to provide probable

cause; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. (1978); and (3) the district court erred in denying his motion to compel discovery of

information regarding a confidential informant. Long, 774 F.3d at 656.

Long then filed a § 2255 motion raising four ineffective assistance of counsel

claims. The district court denied relief and declined to grant a COA. Long filed a

Fed. R. Civ. P. 59(e) motion, which was also denied. Long now seeks a COA from

this court.

II

A prisoner may not appeal the denial of habeas relief under § 2255 without a

COA. § 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.” § 2253(c)(2). This

standard requires Long to show “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) (quotations omitted).

Long contends that his counsel was ineffective in several respects. To succeed

on an ineffective assistance claim, a prisoner must establish “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” and that “the deficient performance prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

prejudice, a “defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

2 First, Long argues that his counsel was ineffective for failing to properly

object to an in camera interview of a confidential informant who did not appear at

trial. However, our court has repeatedly approved of in camera interviews of

confidential informants “for purposes of challenging the informant’s reliability and

the existence of probable cause, and where the trial court in its discretion held the in

camera hearing and determined that disclosure was not necessary for this purpose.”

Sandoval v. Aaron, 562 F.2d 13, 14-15 (10th Cir. 1977). And the informant’s

presence was not required at trial. See United States v. Moralez, 908 F.2d 565, 567

(10th Cir. 1990) (“Disclosure of an informant is not required . . . where the informant

is not a participant in or a witness to the crime charged.”).

Second, Long asserts that the officer who prepared a search warrant falsified

his affidavit, thereby committing fraud on the court, and counsel was ineffective for

failing to raise this issue. However, Long does not provide any record citations or

other evidence in support of his assertion. His ineffective assistance claim therefore

fails. See Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) (if an “omitted issue

is without merit, counsel’s failure to raise it does not constitute constitutionally

ineffective assistance of counsel” (quotation omitted)).

Third, Long argues his counsel was ineffective in presenting the argument that

he was entitled to a Franks hearing. We agree with the district court that Long has

not established prejudice for any such failing. As we explained on direct appeal, a

magistrate judge found after an in camera hearing that a confidential informant did

exist and provided the information contained in the affidavit. Long, 774 F.3d at 663.

3 Long does not provide any specific argument that counsel could have raised that

would have resulted in a Franks hearing.

Finally, Long argues that counsel was ineffective for failing to object when he

sought to represent himself at trial. But “[a] criminal defendant has a constitutional

and a statutory right to waive his right to counsel and represent himself at trial.”

United States v. Akers, 215 F.3d 1089, 1096 (10th Cir. 2000). The record reflects

that the district court ensured Long made his decision “knowingly and intelligently.”

United States v. Turner, 287 F.3d 980, 983 (10th Cir. 2002). We thus conclude Long

has not shown prejudice.

III

We DENY a COA and DISMISS the appeal. Long’s motion to proceed in

forma pauperis is GRANTED.

Entered for the Court

Carlos F. Lucero Circuit Judge