Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 21-4130 v. (D.C. Nos. 2:21-CV-00081-DN & 2:16-CR-00020-DN-1) MARLON ALONZO SMITH, (D. Utah)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HOLMES, Chief Judge, KELLY, and McHUGH, Circuit Judges. _________________________________
Defendant-Appellant Marlon A. Smith, a federal prisoner proceeding pro se,1
seeks a certificate of appealability (“COA”) and permission to proceed in forma pauperis
(“IFP”) to challenge the district court’s dismissal of his 28 U.S.C. § 2255 petition.
Exercising jurisdiction under 28 U.S.C. § 1291, we DENY Mr. Smith’s request for a
COA, DENY his application to proceed IFP, and DISMISS this matter.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Mr. Smith litigates this matter pro se, we construe his filings liberally but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir. 2013) (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)). Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 2
I
On January 1, 2016, Utah Highway Patrol Trooper Jared Withers stopped Mr.
Smith for speeding. Trooper Withers approached Mr. Smith and, based on their
interactions, grew suspicious that Mr. Smith was engaged in criminal activity. As such,
while waiting on the results of a criminal-history check from dispatch, Trooper Withers
screened Mr. Smith’s vehicle with his narcotics detection dog, which alerted Trooper
Withers to the rear of Mr. Smith’s vehicle. Trooper Withers ordered Mr. Smith out of the
vehicle, but Mr. Smith refused and sped away. A high-speed chase ensued, and
eventually Mr. Smith surrendered. A subsequent search of the trunk of Mr. Smith’s
vehicle yielded approximately 2kg of marijuana and 1.76kg of methamphetamine. A
grand jury thereafter returned an indictment charging Mr. Smith with possession of
“500 grams or more of a mixture and substance containing a detectable amount of
methamphetamine . . . .” R. at 289 (Mem. Decision and Order Den. Mr. Smith’s
Am. 28 U.S.C. § 2255 Mot., filed Aug. 13, 2021) (omission in original) (emphasis
omitted); see also Aplt.’s Appl. to Grant COA at 4.
On May 13, 2016, through counsel R. Blake Hamilton, Mr. Smith filed a motion
to suppress in which he challenged the length of the traffic stop and the eventual vehicle
search under the Fourth Amendment. On September 12, 2016, the district court denied
Mr. Smith’s motion to suppress.
On April 12, 2017, Bel-Ami de Montreux filed notice that he had been retained by
Mr. Smith. Now represented by Mr. de Montreux, Mr. Smith’s jury trial began on
June 11, 2018. On June 13, 2018, Mr. Smith was convicted of possession with intent to
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distribute, and was sentenced to 180 months’ imprisonment and 5 years of supervised
relief.
Mr. Smith, still represented by Mr. de Montreux, appealed and challenged (1) the
sufficiency of the evidence presented at trial, and (2) the admission of expert testimony of
Drug Enforcement Administration (“DEA”) Special Agent Susan Thomas. See United
States v. Smith, 800 F. App’x 658, 659 (10th Cir. 2020) (unpublished). We affirmed
Mr. Smith’s conviction. See id.
On February 8, 2021, Mr. Smith filed a § 2255 petition. On May 3, 2021,
Mr. Smith filed an amended § 2255 petition, in which he voluntarily dismissed his
original claims in favor of six new claims. Specifically, in the amended petition, he
alleged ineffective assistance of counsel at various stages of his criminal proceedings:
(1) Mr. de Montreux’s failure to object to the special verdict form’s request for a finding
as to “whether the quantity of methamphetamine was more or less than 500 grams”;
(2) Mr. Hamilton’s failure to file a motion to dismiss the indictment for a violation of the
Speedy Trial Act; (3) Mr. de Montreux’s stipulation to Government Exhibit 7;
(4) Mr. Hamilton’s deficient litigation of Mr. Smith’s Fourth Amendment claims; (5) Mr.
Hamilton’s failure to make a pre-trial challenge to the reliability of the narcotics
detection dog’s alert to his vehicle; and (6) Mr. de Montreux’s failure to appeal the
alleged non-transcription of the jury’s notes to the court, as well as the denial of
Mr. Smith’s Fourth Amendment claims. R. at 287. The district court issued a
memorandum decision and order denying Mr. Smith’s petition after concluding that his
counsels’ performance was not deficient at any stage of the proceedings and that
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Mr. Smith could not establish undue prejudice.2 See R. at 301. The district court also
denied Mr. Smith’s motion for leave to proceed IFP on appeal, having concluded that he
had not demonstrated that his appeal would be filed in good faith. Mr. Smith now seeks a
COA to challenge this decision on appeal.
II
A prisoner may not appeal from the denial of relief under 28 U.S.C. § 2255
without a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Mulay, 805 F.3d 1263,
1265 (10th Cir. 2015) (“The grant of a COA is necessary to appeal [the denial of a § 2255
motion] and it is jurisdictional.”). We may issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
also Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Under this standard, Mr. Smith
must demonstrate “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, 529 U.S.
at 484 (citation omitted).
2 On Mr. Smith’s request, the district court issued an Amended Memorandum Decision and Order in which it also denied Mr. Smith’s request for a COA. See R. at 332 (Am. Mem. Decision and Order Den. Mr. Smith’s Am. 28 U.S.C. § 2255 Mot., filed Oct. 5, 2021). However, Mr. Smith did not file an amended notice of appeal to include the amended order within the scope of this appeal. See FED. R. APP. P. 4(a)(4)(B)(ii). As such, we only consider the district court’s original order—which, in substantive respects, is virtually identical to the amended one (with the difference relating to the COA denial). 4 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 5
III
In his amended § 2255 motion, Mr. Smith alleged ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984), at all stages of his criminal
proceedings. Specifically, Mr. Smith identified six alleged instances of constitutionally
deficient conduct in violation of his Sixth Amendment rights. The district court denied
Mr. Smith’s petition, as it found Mr. Smith was unable to demonstrate his counsels’
performance was constitutionally deficient at any stage of the proceedings or that he
suffered unfair prejudice. Because reasonable jurists could not debate the soundness of
the district court’s conclusions, we deny Mr. Smith’s request for a COA.
A
Under Strickland, a defendant “must show both that his counsel’s performance
‘fell below an objective standard of reasonableness’ and that ‘the deficient performance
prejudiced the defense.’” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011)
(emphasis omitted) (quoting Strickland, 466 U.S. at 687–88). “These two prongs may be
addressed in any order, and failure to satisfy either is ‘dispositive.’” Littlejohn v.
Trammell, 704 F.3d 817, 859 (10th Cir. 2013) (quoting Byrd, 645 F.3d at 1168).
“[R]easonableness” is measured “under prevailing professional norms,” and
“[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland,
466 U.S. at 688–89. “A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689.
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Prejudice “requires [a] showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Specifically, the
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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Williams v. Taylor, 529 U.S. 362, 391 (2000) (quoting Strickland, 466 U.S.
at 694).
In his amended § 2255 motion, Mr. Smith first argued that Mr. de Montreux
improperly failed to object to the jury instructions and special verdict form. Specifically,
Mr. Smith alleges that both the jury instructions and special verdict form asked the jury to
determine, upon a finding of guilt, whether the quantity of methamphetamine at issue
“was five hundred grams or more.” Aplt.’s Appl. to Grant COA at 5. Mr. Smith claimed
that this language conflicted with the indictment, which alleged that Mr. Smith “did
knowingly and intentionally possess with intent to distribute . . . 500 grams or more of a
mixture and substance[] containing a detectable amount of methamphetamine.” Id. at 4.
As such, Mr. Smith claims the discrepancy constructively amended his indictment by
broadening the possible bases for conviction. See id. at 6–7. The district court rejected
Mr. Smith’s argument, as it reasoned “[n]either the jury instructions nor special verdict
constructively amended the indictment. Accordingly, Mr. de Montreux could not have
been ineffective for failing to challenge them.” R. at 291. We do not find the district
court’s decision to be debatable amongst jurists of reason.
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“An indictment is constructively amended if the evidence presented at trial,
together with the jury instructions, raises the possibility that the defendant was convicted
of an offense other than that charged in the indictment.” United States v. Apodaca,
843 F.2d 421, 428 (10th Cir. 1988). “In assessing a claim of an impermissible
constructive amendment, our ultimate inquiry is whether the crime for which the
defendant was convicted at trial was charged in the indictment; to decide that question,
we therefore compare the indictment with the district court proceedings to discern if
those proceedings broadened the possible bases for conviction beyond those found in the
operative charging document.” United States v. Farr, 536 F.3d 1174, 1180 (10th Cir.
2008).
Here, the district court concluded that neither the jury instructions nor the special
verdict form constructively amended the indictment, as the jury instructions and special
verdict form narrowed—rather than broadened—the possible bases for conviction.
Specifically, the indictment only alleged that the “500 grams or more” of the mixture and
substance included “a detectable amount of methamphetamine,” whereas the jury
instructions and special verdict form asked the jury a narrower question of whether there
were “500 grams or more of methamphetamine.” R. at 290; see also Aplt.’s Appl.
To Grant COA at 4–5.
Thus, the district court reasoned that this “more specific finding—500 grams or
more of methamphetamine—necessarily still fits within the [i]ndictment’s broader
allegation of ‘500 grams or more of a mixture and substance containing a detectable
amount of methamphetamine.’” R. at 290. Put another way, the special verdict form and
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jury instructions left no possibility that Mr. Smith “was convicted of an offense other
than that charged in the . . . indictment.” United States v. Ray, 899 F.3d 852, 866
(10th Cir. 2018) (quoting United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.
2002)). In light of this, no reasonable jurist could debate the soundness of the district
court’s conclusion. Accordingly, we deny a COA as to this claim.
Mr. Smith’s second claim is that Mr. Hamilton’s pre-trial representation was
ineffective because he did not file a motion to dismiss the indictment for a violation of
the Speedy Trial Act. Specifically, Mr. Smith alleges that the Speedy Trial clock began
running on January 20, 2016 (i.e., the date he was arraigned on the indictment), and by
September 18, 2016,3 149 days had elapsed—which violated the Speedy Trial Act. See
Aplt.’s Appl. to Grant COA at 11. The district court rejected Mr. Smith’s claim, as it
found that a “careful review of the record demonstrates there was no violation of the
Speedy Trial Act, and Mr. Hamilton never had cause to file a motion to dismiss on that
basis.” R. at 291. Mr. Smith has not demonstrated that reasonable jurists would find the
district court’s assessment of his ineffective assistance claim debatable or wrong.
The Speedy Trial Act “requires that a criminal defendant’s trial commence within
70 days of a defendant’s initial appearance or indictment, but excludes from the 70-day
period days lost to certain types of delay. Section 3161(h) specifies the type of delays
3 After this date, Mr. Smith filed motions to continue which were granted until Mr. de Montreux entered an appearance for Mr. Smith on April 17, 2017, thereby relieving Mr. Hamilton of representation. See R. at 292. 8 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 9
that are excludable from the calculation.” Bloate v. United States, 559 U.S. 196, 203
(2010); see also 18 U.S.C. § 3161(c)(1). Crucially, 18 U.S.C. § 3161(h)(1)(D)
automatically excludes any “delay resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on . . . such motion.”
The district court correctly concluded that Mr. Smith’s Speedy Trial calculations
were not accurate. Mr. Smith states that (1) 67 days elapsed between January 20, 2016,
and March 27, 2016, and (2) another 82 days elapsed between July 28, 2016, and
September 18, 2016—for a total of 149 days.4 However, Mr. Smith does not explain the
relevance of these dates and omits critical context for the purposes of determining
whether a Speedy Trial violation occurred.
Mr. Smith correctly notes that the Speedy Trial clock began running on
January 20, 2016. However, on March 10, 2016, Mr. Smith filed a motion to continue his
trial for three months. See R. at 292. At that point, only 51 days had elapsed.
Then on May 13, 2016—while his motion to continue was still in effect—Mr.
Smith filed a motion to suppress. See id. On September 12, 2016, the district court
issued its decision denying Mr. Smith’s motion to suppress. See id. Under 18 U.S.C.
§ 3161(h)(1)(D), the time between the filing of Mr. Smith’s suppression motion and the
district court’s resolution of the motion is excluded for the purposes of the Speedy Trial
4 Mr. Smith’s calculations appear to be mathematically inaccurate, as only 52 days could have elapsed between July 28, 2016, and September 18, 2016—for an alleged total of 119 days. However, for the reasons discussed infra, this error is ultimately irrelevant to the resolution of his claim. 9 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 10
Act. Thus, as of September 12, 2016, no additional time had elapsed under the Speedy
Trial Act (i.e., only 51 days had elapsed at this point). 5
Therefore, on September 18, 2016 (i.e., six days after the district court’s decision
on the suppression motion) only 57 days had elapsed under the Speedy Trial Act. As
such, Mr. Hamilton’s decision to not file a motion to dismiss for a violation of the Speedy
Trial Act was reasonable. See United States v. Orange, 447 F.3d 792, 797 (10th Cir.
2006) (“When, as here, the basis for the ineffective assistance claim is the failure to raise
an issue, we must look to the merits of the omitted issue. If the omitted issue is without
merit, then counsel’s failure to raise it is not prejudicial, and thus is not ineffective
assistance.” (citation omitted)). Therefore, no reasonable jurist could debate the
soundness of the district court’s conclusion. Accordingly, we deny a COA as to this
claim.
5 Mr. Smith does not contest that 18 U.S.C. § 3161(h)(1)(D) excludes delays resulting from pretrial motions. Instead, he argues that “delays resulting from a continuance granted by the district court may be excluded [only] if the district court makes the findings required by” 18 U.S.C. § 3161(h)(7). Aplt.’s Appl. to Grant COA at 13 (alteration in original) (emphasis omitted). Because the district court failed to make any specific findings with respect to the delay for his suppression motion, he claims the time should not be excluded under 18 U.S.C. § 3161(h)(1)(D) for the purposes of the Speedy Trial Act.
Mr. Smith is incorrect. The Supreme Court has explicitly stated that any “‘delay resulting from . . . proceedings concerning the defendant [i.e., any delay arising under § 3161(h)(1)]’ is automatically excludable from a Speedy Trial Act calculation.” Bloate, 559 U.S. at 199 (omission in original) (emphasis added) (quoting 18 U.S.C. § 3161(h)(1)). As such, the district court was not required to make specific findings under 18 U.S.C. § 3161(h)(7) for the delay to be excludable from a Speedy Trial Act calculation. 10 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 11
Mr. Smith’s third claim is that Mr. de Montreux was constitutionally deficient for
(1) not moving to suppress Government Exhibit 7—a three-page exhibit listing a series of
incriminating calls and texts on Mr. Smith’s phone—and (2) stipulating to the admission
of Government Exhibit 7.6 See Aplt.’s Appl. to Grant COA at 15–20. The district court
rejected Mr. Smith’s arguments, as it found that “Mr. de Montreux did file a pre-trial
motion in limine, seeking suppression of Exhibit 7,” and, after the motion was denied,
Mr. de Montreux’s decision to stipulate to Exhibit 7 was “sound trial strategy.” R. at
293, 295. We do not believe that reasonable jurists would debate either of the district
court’s determinations.
6 On appeal, Mr. Smith also argues that he did not consent to Mr. de Montreux’s decision to stipulate to the admission of Government Exhibit 7—which he alleges, standing alone, constitutes deficient performance under Strickland. See Aplt.’s Appl. to Grant COA at 17–18. However, this argument was not raised before the district court; accordingly, it is not preserved for our consideration in this proceeding. See United States v. Garcia-Rodriguez, 705 F. App’x 756, 759 (10th Cir. 2017) (unpublished) (“Because [the movant] did not raise these arguments in his § 2255 motion, we decline to consider them here.”); United States v. Knittel, 562 F. App’x 630, 633 n.2 (10th Cir. 2014) (unpublished) (“[The movant] appears not to have raised this issue in his § 2255 petition before the district court, and the district court order denying his petition does not address this issue. Therefore, we do not address it on appeal.”); cf. Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13 (10th Cir. 2013) (“We do not generally consider issues that were not raised before the district court as part of the habeas petition.”); Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not reach [petitioner’s argument] in this case, however, because . . . we conclude that [petitioner] never raised such a claim, in his petition or otherwise, before the federal district court.” (citation omitted)); Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (deeming “waived” certain ineffective- assistance claims where petitioner “fail[ed] to assert them in his district court habeas petition”). 11 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 12
With respect to its first conclusion, the district court noted that Mr. de Montreux
filed a pre-trial motion in limine seeking suppression of Exhibit 7. See id. at 293.
Furthermore, the district court noted that in the motion, Mr. de Montreux raised the very
argument Mr. Smith advanced in his § 2255 petition; namely, that the United States
obtained the information for Government Exhibit 7 from a search it had previously
agreed not to use or rely on. See id. As such, the district court concluded that Mr. Smith
was incorrect in stating that Mr. de Montreux was constitutionally deficient for failing to
move to suppress Government Exhibit 7. No reasonable jurist could disagree with the
district court’s conclusion. 7
7 Mr. Smith also argues that Mr. de Montreux “should have moved the Court for a Franks Hearing pursuant to the U.S. Supreme Court’s [r]uling in Franks v. Delaware, 438 U.S. 154 (1978), in regard to the Search Warrant Affidavit including misleading information and omissions to establish probable cause for issuance of [the] July 29, 2016, Search Warrant.” Aplt.’s Appl. to Grant COA at 20. Although the district court did not expressly opine on this argument, it denied all of Mr. Smith’s Strickland claims. And we believe that no reasonable jurist could debate the district court’s decision as it relates to this Strickland claim relating to his counsel’s failure to request a Franks hearing.
Specifically, Mr. Smith offers no evidence to demonstrate that the search warrant application prepared by DEA Agent David Barnett included false or misleading information. Instead, Mr. Smith simply asserts that the affiant had previous knowledge of the contents of his phone, and knew it contained no evidence of criminal activity. See id. at 21–22. That bare assertion, standing alone, is insufficient to satisfy the “substantial preliminary showing” needed to entitle a defendant to a Franks hearing. See Franks, 438 U.S. at 155–56 (“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (emphasis added)). As such, given that Mr. Smith was not entitled to a Franks hearing, Mr. de Montreux’s failure to request one could not have been constitutionally deficient. 12 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 13
The district court also concluded that Mr. de Montreux’s decision to stipulate to
Exhibit 7 was sound trial strategy. Mr. Smith’s suppression motion was denied in a
docket text order, which provided that “[t]he government is not prohibited from using
Exhibit 7.” Id. at 294. After the district court’s ruling, the parties discussed a proposed
stipulation in a pre-trial conference. The government stated that “[i]f we have to prove
that [the] phone is the defendant’s [i.e., if Mr. Smith did not stipulate to Exhibit 7], then
we have to go through things that would demonstrate the likelihood that [the] phone is
the defendant’s. Those include pictures of marijuana on that phone.” Id. at 295. Mr. de
Montreux eventually agreed to the proposed stipulation, stating that “I don’t anticipate
that I can contest, under the circumstances and due to [the court’s] ruling . . . that the
phone or phones found in the car belonged to [Mr. Smith].” Id. As such, the district
court ruled that Mr. de Montreux’s “stipulation to an exhibit (that had already been ruled
admissible) to both save time and avoid the presentation of further inculpatory
information . . . cannot reasonably be considered error, much less error rising to the level
of ineffective assistance.” Id. No reasonable jurist could disagree with the district
court’s determinations. As such, we deny a COA as to this claim.
Mr. Smith’s fourth claim alleges that Mr. Hamilton “provided him with ineffective
assistance of counsel by failing to properly investigat[e]” and litigate his Fourth
Amendment claims. Aplt.’s Appl. to Grant COA at 25. Specifically, Mr. Smith claims
that Mr. Hamilton “failed to properly investigate the facts in regard to the January 1,
2016, Traffic Stop” and “research relevant federal caselaw[] and Utah caselaw.” Id.
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at 26. Mr. Smith’s fifth claim further alleges that Mr. Hamilton “did not properly
investigate Utah law in regards to Utah’s requirement for certified drug dogs” or “secure
[an] [e]xpert [w]itness to interpret these findings,” and “failed to file a Motion to
Suppress . . . on the ground that the Utah Dog Sniff of K-9 Marco is [u]nreliable and the
search of [Mr.] Smith’s car was without a warrant or probable cause.” Id. at 32. The
district court consolidated these claims and found that neither of them had merit. See
R. at 296. We do not find the district court’s decision to be debatable amongst jurists of
reason.
In reaching its conclusion, the district court first noted that Mr. Smith relied
“entirely on vague, summary allegations of insufficient research, investigation, and
litigation.” Id. at 297. Contrary to Mr. Smith’s allegations, the district court found that
“the record demonstrates that Mr. Hamilton’s pre-trial representation of [Mr.] Smith was
careful and competent.” Id. The district court provided multiple examples of Mr.
Hamilton’s extensive efforts to provide competent representation: (1) Mr. Hamilton
provided Mr. Smith with a memo outlining the range of issues with possible Fourth
Amendment claims; (2) Mr. Hamilton filed and litigated a motion to suppress on Fourth
Amendment grounds, in which he challenged the length of Mr. Smith’s traffic stop; and
(3) Mr. Hamilton requested and received certification records for Trooper Withers’s
narcotics detection dog, Marco. See id. Indeed, the district court praised Mr. Hamilton
for the quality of his representation, stating that the “completeness of the memo [he] filed
. . . laid out issues well, and . . . has enabled everyone including [the court] to prepare
better . . . .” Id. (first alteration in original). The district court also noted that “[t]he
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suppression hearing was very thorough. . . . A very complete order was prepared and
filed.” Id. at 298.
Given all of these findings, no reasonable jurist could say that Mr. Hamilton’s
representation was constitutionally inadequate with respect to either of Mr. Smith’s
claims. See Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel’s performance
must be highly deferential.”); Byrd, 645 F.3d at 1168 (“We have cautioned that our
review of counsel’s performance under the first prong of Strickland is a ‘highly
deferential’ one. Our case law makes clear that ‘[c]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment,’ and that a petitioner ‘bears a heavy burden’ when it
comes to overcoming that presumption.” (alteration in original) (citations omitted) (first
quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010); then quoting Dever v.
Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994); and then quoting Fox v.
Ward, 200 F.3d 1286, 1295 (10th Cir. 2000))). Accordingly, we deny a COA as to this
Finally, Mr. Smith alleges that Mr. de Montreux was ineffective on appeal because
he failed to challenge (1) the alleged non-transcription of a jury note to the court and
(2) the denial of Mr. Smith’s Fourth Amendment suppression motion. See Aplt.’s Appl.
to Grant COA at 39. Mr. Smith also argues that the district court “abused its discretion”
by failing to conduct an evidentiary hearing on this sixth claim. Id. at 41–42.
“When considering a claim of ineffective assistance of appellate counsel for
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failure to raise an issue, we look to the merits of the omitted issue. If the omitted issue is
without merit, counsel’s failure to raise it does not constitute constitutionally ineffective
assistance of counsel.” Jones v. Gibson, 206 F.3d 946, 959 (10th Cir. 2000) (quoting
Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999)).
The district court denied Mr. Smith’s Strickland claim with respect to the jury
note. Specifically, the district court noted that “the court preserved a copy of the jury’s
note from June 13, 2018; it was simply filed under seal.” R. at 300. Furthermore, the
district court noted that “[a] court reporter also preserved the parties’ discussion of the
note.” Id. As such, the district court concluded that “[a]n allegation that the jury’s note
was not transcribed . . . cannot be the basis of an ineffective assistance claim.” Id. No
reasonable jurist could debate the soundness of the district court’s conclusion.
The district court also determined that “[Mr.] Smith ha[d] put forth no evidence
that he could have made a successful Fourth Amendment challenge to the stop and search
of his vehicle.” Id. Mr. Smith argues that his Fourth Amendment rights were violated
when Trooper Withers extended the duration of the traffic stop. See Aplt.’s Appl. to
Grant COA at 28–29. Specifically, Mr. Smith argues that Trooper Withers’s Interstate
Identification Index check (i.e., a criminal-history check) was inappropriate as it unduly
prolonged the traffic stop—which allowed Trooper Withers to screen Mr. Smith’s vehicle
with his narcotics detection dog. See id. As such, Mr. Smith argues that his Fourth
Amendment claim had merit, and his counsel’s failure to raise it on appeal was
constitutionally deficient.
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However, Mr. Smith offers no federal precedent to support his position. Nor could
he. In Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citation omitted), the
Supreme Court explained that an officer’s mission during a traffic stop is both “to address
the traffic violation that warranted the stop and attend to related safety concerns.”
Because “‘[t]raffic stops are especially fraught with danger to police officers,’ . . . the
Court has . . . included ‘negligibly burdensome’ inquiries an officer needs to make ‘to
complete his mission safely’ among permissible actions incident to a traffic stop.”
United States v. Mayville, 955 F.3d 825, 830 (10th Cir. 2020) (alteration in original)
(citation omitted) (quoting Rodriguez, 575 U.S. at 356). Among such permissible
actions, we have “routinely permitted officers to conduct criminal-history checks during
traffic stops in the interest of officer safety.” Id.; see also United States v. Burleson,
657 F.3d 1040, 1046 (10th Cir. 2011) (“[A]n officer may run a background check on a
motorist to check for warrants or criminal history even though the purpose of the stop had
nothing to do with the motorist’s history.”). Crucially, the Supreme Court has noted that
“the government’s officer safety interest stems from the mission of the stop itself.”
Rodriguez, 575 U.S. at 356.
Here, Trooper Withers had a legitimate safety interest—which arose from the
traffic stop itself—to conduct a criminal-history check. Therefore, Trooper Withers’s
Interstate Identification Index check was permitted under our precedent and did not serve
to unduly prolong the traffic stop. As such, Mr. Smith’s Fourth Amendment claim would
not have succeeded on appeal. Given that Mr. Smith’s Fourth Amendment claim was
without merit, reasonable jurists could not debate the district court’s conclusion that Mr.
17 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 18
de Montreux’s failure to raise the issue on appeal did not constitute constitutionally
ineffective assistance of counsel.
Finally, the district court denied Mr. Smith’s request for an evidentiary hearing.
Under 28 U.S.C. § 2255(b), an evidentiary hearing is not required where “the motion and
the files and records of the case conclusively show that the prisoner is entitled to no
relief.” Given that the record conclusively shows that Mr. Smith is not entitled to relief,
reasonable jurists could not debate the district court’s conclusion. Accordingly, we deny
a COA as to this claim.
IV
Finally, we address Mr. Smith’s request to proceed IFP. Given that Mr. Smith has
failed to present a “reasoned, nonfrivolous argument on the law and facts in support of
the issues raised on appeal,” Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir. 1999),
we deny his application to proceed IFP on appeal.
V
For the foregoing reasons, we DENY Mr. Smith’s request for a COA, DENY his
application to proceed IFP, and DISMISS this matter.
Entered for the Court
Jerome A. Holmes Chief Judge