United States v. Williams

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 26 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6247 (D.C. No. CIV-97-599-R) WENDELL LAMONT WILLIAMS, (W.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, and HENRY, Circuit Judges.

After examining defendant’s brief and the 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); 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Wendell Lamont Williams appeals the district court’s denial of

his motion to vacate, set aside or correct his sentence, brought pursuant to 28

U.S.C. § 2255. Because defendant has not made a substantial showing of the

denial of a constitutional right, we deny his application for a certificate of

appealability and dismiss the appeal.

In February 1994, pursuant to a plea agreement, defendant pled guilty to

one count of conspiracy to distribute crack cocaine in exchange for dismissal of

the remaining counts of a superseding indictment. He was sentenced to 360

months’ incarceration, based on coconspirator testimony linking him to the

distribution of ninety-four ounces of cocaine base; evidence of his managerial

role in the conspiracy; and his failure to take responsibility for his conduct.

Defendant did not appeal.

On April 21, 1997, defendant filed his § 2255 motion, alleging his attorney

was ineffective in failing to object to the amount of cocaine attributed to him, to

his designation as a manager, and to the finding that he did not take responsibility

for his conduct. The district court denied the motion, finding that counsel’s

decision not to object was neither deficient nor prejudicial. This appeal followed.

Before maintaining this appeal, defendant must obtain a certificate of

appealability by making “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Defendant’s claim of ineffective assistance does

-2- not meet this burden. To show his attorney was ineffective in failing to object to

the factors used in calculating his sentence, defendant must demonstrate both that

counsel’s performance fell below an objective standard of reasonableness and that

the deficient performance was prejudicial. See United States v. Cook, 45 F.3d

388, 392 (10th Cir. 1995). Defendant has not shown either deficient performance

or prejudice.

The record makes clear that defendant’s attorney considered challenging

the amount of cocaine attributable to defendant but made a tactical decision not to

do so. See R. I, Plea Hearing Tr. dated Feb. 14, 1994, at 11. Further, defendant

has not presented any evidence demonstrating that less than ninety-four ounces

were involved. The court’s findings that defendant took a managerial role and

that he had not accepted responsibility are supported by the record, and defendant

has not shown how an objection would have been successful. Finally, in light of

counsel’s stated strategy of obtaining a sentence reduction based on defendant’s

future cooperation, defendant has not shown the decision to refrain from objecting

to the sentencing factors was anything but tactical.

We indulge in a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance” and presume that “under the

circumstances, the challenged action might be considered sound trial strategy.”

Strickland v. Washington, 466 U.S. 668, 689 (1984) (quotations omitted). Absent

-3- evidence overcoming this presumption of effective representation, we deny

defendant’s application for a certificate of appealability.

The appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge

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