United States v. Scott

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 15 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 98-6261 (D. Ct. No. CIV-97-717-T) WALLIE A. SCOTT, (W.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Scott appeals pro se an order of the district court denying a

motion to vacate, set aside, or correct defendant’s federal sentence pursuant to the

provisions of 28 U.S.C. § 2255. This matter is before this court on defendant’s

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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. application for a certificate of appealability and motion to proceed in forma

pauperis under the provisions of the Antiterrorism and Effective Death Penalty

Act (AEDPA). Defendant was originally sentenced after a jury trial and

conviction on charges of conspiracy to possess with intent to distribute cocaine

base and possession with intent to distribute cocaine base. At that time,

defendant’s retained counsel did not perfect an appeal. Defendant then filed a pro

se § 2255 petition claiming ineffective assistance of counsel for failure to perfect

the appeal. The district court granted the petition, appointed new counsel, and

after further proceedings, resentenced Mr. Scott to the same sentence originally

imposed. The conviction and sentence was affirmed by this court. See United

States v. Scott, No. 92-6272, 1993 WL 411596, at *8 (10th Cir. Oct. 8, 1993)

(unpublished opinion). Defendant then filed this § 2255 petition. The district

court referred the petition to this court, seeking a ruling on whether its filing

constituted a second or successive filing pursuant to the provisions of the

AEDPA. This court held that it did not and remanded the matter to the district

court; see United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997). Upon

remand, the district court denied the petition. On appeal, the defendant

challenges the denial of that petition.

Defendant alleges on appeal: (1) that he was denied effective assistance of

trial counsel for the failure of the trial counsel to obtain an independent lab

-2- analysis of the controlled substances involved; (2) ineffective assistance of

appellate counsel for failing to raise the ineffective assistance of trial counsel

issue in the direct appeal of the conviction; and (3) improper sentencing based on

possession of cocaine base rather than crack cocaine.

We decline to issue the certificate of appealability and further decline to

grant in forma pauperis status to defendant. The record in this case contains the

testimony of the government’s chemist, who stated that the substance found in

defendant’s possession at the time of his arrest was cocaine. There is further

testimony in the record by defendant with regard to his use of crack cocaine and

his intent to purchase crack cocaine. Under these circumstances, the district court

was under no duty to hold a separate evidentiary hearing with regard to the failure

of trial counsel to obtain an independent lab analysis to challenge the

government’s evidence with regard to the cocaine at issue. We hold that the

district court did not abuse its discretion in refusing to order such an evidentiary

hearing. Further, this same testimony shows that trial counsel’s alleged errors did

not fall below any objective standard of reasonableness as required in Strickland

v. Washington, 466 U.S. 668, 688 (1984). Additionally, defendant has failed to

show any prejudice to his defense as a result of the failure of trial counsel. See

id. at 691.

We further find that defendant has failed to show that appellate counsel

-3- was ineffective because she failed to raise the ineffectiveness of trial counsel as a

basis for appeal. The law of this circuit is clear that ineffective assistance of

counsel claims brought on direct appeal are “presumptively dismissible, and

virtually all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995). Thus, appellate counsel’s decision not to raise the

ineffectiveness claim with regard to trial counsel is clearly not an unreasonable

exercise of professional judgment. We further agree with the district court that

there is no merit to plaintiff’s contention that he was improperly sentenced

because of the nature of the substance he possessed.

We find that defendant has failed to raise issues that are debatable among

jurists, that a court could resolve the issues differently, or that the questions

deserve further proceedings. United States v. Sistrunk, 111 F. 3d 91, 91 (10th

Cir. 1997). We deny the certificate of appealability. We deny the motion to

proceed in forma pauperis pursuant to the provisions of Fed. R. App. P. 24. The

appeal is dismissed.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

-4-