United States v. Powell

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 22, 2000
• Docket: 00-1075
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 22 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-1075 (D. Colo.) STANLEY DOUGLAS POWELL, (D.Ct. No. 99-D-414)

Defendant-Appellant. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Stanley D. Powell, a federal inmate appearing pro se, appeals the

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. district court’s decision dismissing his motion to vacate, set aside or correct his

sentence under 28 U.S.C. § 2255. We deny Mr. Powell’s request for a certificate

of appealability and dismiss his appeal.

Mr. Powell was convicted of four counts of possession with intent to

distribute cocaine base. Three of the four distribution counts included aiding and

abetting charges pursuant to 18 U.S.C. § 2. We affirmed Mr. Powell’s conviction

on direct appeal. See United States v. Powell, 166 F.3d 349, 1998 WL 794973

(10th Cir. Nov. 16, 1998) (unpublished opinion). In a related decision, we also

affirmed civil forfeiture of $11,557 as proceeds of Mr. Powell’s drug offenses.

See United States v. $11,557.22 in U.S. Currency, 198 F.3d 260, 1999 WL 820230

(10th Cir. Oct. 14, 1999) (unpublished opinion).

Following his direct appeal, Mr. Powell filed his § 2255 motion, assigning

three grounds for error. Specifically, Mr. Powell alleged: 1) he received

insufficient notice of the charges against him because the indictment failed to

include a charge of distribution of drugs; 2) the indictment was defective because

it included the charge of aiding and abetting, but did not contain a sufficient

statement of the facts supporting such a charge; and 3) his counsel provided

ineffective assistance of counsel for several reasons.

-2- In an exceedingly comprehensive order, the district court dismissed the

motion. Applying the controlling Supreme Court and Tenth Circuit authority, the

district court determined Mr. Powell failed to raise the first two claims in his

direct appeal, or make a showing of cause and prejudice or miscarriage of justice,

which is required to overcome a presumption of dismissal when issues are raised

for the first time on collateral attack. For that reason, the district court

determined Mr. Powell’s first two claims were procedurally barred. As to the

ineffective assistance of counsel argument, the district court performed an

exhaustive discussion of the several claims underlying Mr. Powell’s argument and

determined Mr. Powell failed to show his counsel’s performance was either

constitutionally deficient or that the alleged deficient performance prejudiced

him.

On appeal, Mr. Powell raises the same issues addressed by the district

court. We begin with our standard of review. “[We] review the district court’s

legal rulings on a § 2255 motion de novo and its findings of fact for clear error.”

United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998) (citing United States

v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Ineffective assistance of counsel

claims involve mixed questions of law and fact, which we review de novo. See

United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). In order for Mr.

-3- Powell to obtain a certificate of appealability, he must make a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

Applying these standards, we have carefully reviewed the pleadings and

record on appeal. For the purpose of judicial economy, we will not duplicate the

district court’s thorough discussion and correct determination of the same issues

presented to this court on appeal, other than to conclude Mr. Powell fails to make

a substantial showing of the denial of a constitutional right. Accordingly, we

deny Mr. Powell a certificate of appealability for substantially the same reasons

set forth in the district court’s February 8, 2000 Order of Dismissal, and thereby

DISMISS this appeal.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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