United States v. Nelson

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 8, 1998
• Docket: 97-3167
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 8 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-3167 (D.C. No. 97-3013-EEO) DIANA G. NELSON, (D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this proceeding. 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Diana G. Nelson appeals from a district court order denying her

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

United States v. Nelson, 966 F. Supp. 1029 (D. Kan. 1997). The motion was filed

after the effective date of the Antiterrorism and Effective Death Penalty Act, so

the availability of appellate review is conditioned upon issuance of a certificate of

appealability pursuant to 28 U.S.C. § 2253(c). See United States v. Kunzman,

125 F.3d 1363, 1364 n.2 (10th Cir. 1997), petition for cert. filed, (U.S. Feb. 14,

1998) (No. 97-8055). Because defendant has not made the requisite “substantial

showing of the denial of a constitutional right,” § 2253(c)(2), we decline to issue

the certificate and, accordingly, dismiss the appeal.

Defendant was found guilty at trial on four counts of trafficking in crack

cocaine: one count involving a broad conspiracy operated under the control of

defendant and her husband, William Nelson, Sr. a/k/a Daniel Nelson; the other

three counts reflecting particular instances of possession/distribution within 1000

feet of an elementary school, see 21 U.S.C. § 860 (formerly 21 U.S.C. § 845a).

Her conviction and sentence, and those of numerous codefendants, were affirmed

on direct appeal. See United States v. Nelson, Nos. 90-3081, 90-3108, 90-3109,

90-3110, 90-3111, 90-3113, 90-3114, and 90-3119, 1991 WL 163061 (10th Cir.

Aug. 23, 1991). In January 1997, she filed the instant § 2255 motion, alleging

ineffective assistance of counsel in several respects.

-2- The district court thoroughly analyzed and properly rejected defendant’s

allegations of ineffective assistance. She now focuses on her claim that counsel

should have raised a battered woman syndrome (BWS) defense. However, she

has not established that she actually suffered from BWS, much less demonstrated

that counsel was unreasonable in electing to pursue, with partial success, a

simpler and less controversial coercion/duress defense. Upon consideration of the

pertinent trial, sentencing, and post-conviction record, we discern no basis for

invoking this court’s full appellate authority under § 2253(c).

Defendant’s application for a certificate of appealability is DENIED, and

the appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Circuit Judge

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