United States v. Long ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5015
(D.C. Nos. 4:16-CV-00141-JHP-FHM and
DEANTA MARQUIS LONG, 4:11-CR-00086-JHP-1)
(N.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Deanta Long requests a certificate of appealability (“COA”) to appeal the
denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.
I
Long was convicted of several cocaine and firearms charges in 2013. He was
sentenced to 211 months’ imprisonment. We affirmed his conviction on direct
appeal. United States v. Long, 774 F.3d 653, 656 (10th Cir. 2014). We rejected
Long’s arguments that: (1) a search warrant affidavit failed to provide probable
cause; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154
*
This order is not binding precedent, except under the doctrines of law of the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.
(1978); and (3) the district court erred in denying his motion to compel discovery of
information regarding a confidential informant. Long, 774 F.3d at 656.
Long then filed a § 2255 motion raising four ineffective assistance of counsel
claims. The district court denied relief and declined to grant a COA. Long filed a
Fed. R. Civ. P. 59(e) motion, which was also denied. Long now seeks a COA from
this court.
II
A prisoner may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
standard requires Long to show “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 v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Long contends that his counsel was ineffective in several respects. To succeed
on an ineffective assistance claim, a prisoner must establish “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
prejudice, a “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.” Id. at 694.
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First, Long argues that his counsel was ineffective for failing to properly
object to an in camera interview of a confidential informant who did not appear at
trial. However, our court has repeatedly approved of in camera interviews of
confidential informants “for purposes of challenging the informant’s reliability and
the existence of probable cause, and where the trial court in its discretion held the in
camera hearing and determined that disclosure was not necessary for this purpose.”
Sandoval v. Aaron, 562 F.2d 13, 14-15 (10th Cir. 1977). And the informant’s
presence was not required at trial. See United States v. Moralez, 908 F.2d 565, 567
(10th Cir. 1990) (“Disclosure of an informant is not required . . . where the informant
is not a participant in or a witness to the crime charged.”).
Second, Long asserts that the officer who prepared a search warrant falsified
his affidavit, thereby committing fraud on the court, and counsel was ineffective for
failing to raise this issue. However, Long does not provide any record citations or
other evidence in support of his assertion. His ineffective assistance claim therefore
fails. See Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) (if an “omitted issue
is without merit, counsel’s failure to raise it does not constitute constitutionally
ineffective assistance of counsel” (quotation omitted)).
Third, Long argues his counsel was ineffective in presenting the argument that
he was entitled to a Franks hearing. We agree with the district court that Long has
not established prejudice for any such failing. As we explained on direct appeal, a
magistrate judge found after an in camera hearing that a confidential informant did
exist and provided the information contained in the affidavit. Long, 774 F.3d at 663.
3
Long does not provide any specific argument that counsel could have raised that
would have resulted in a Franks hearing.
Finally, Long argues that counsel was ineffective for failing to object when he
sought to represent himself at trial. But “[a] criminal defendant has a constitutional
and a statutory right to waive his right to counsel and represent himself at trial.”
United States v. Akers, 215 F.3d 1089, 1096 (10th Cir. 2000). The record reflects
that the district court ensured Long made his decision “knowingly and intelligently.”
United States v. Turner, 287 F.3d 980, 983 (10th Cir. 2002). We thus conclude Long
has not shown prejudice.
III
We DENY a COA and DISMISS the appeal. Long’s motion to proceed in
forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4