United States v. Woodward ( 1996 )


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  •                        UNITED STATES COURT OF APPEALS
    Filed 2/12/96
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                             No. 95-3250
    v.                                                      D. Kansas
    DENNIS RAY WOODWARD,                                       (D.C. No. 95-CV-3238)
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before ANDERSON, BARRETT, and LOGAN, 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); 10th Cir. R. 34.1.9. This cause is therefore ordered
    submitted without oral argument.
    Dennis Ray Woodward appeals the district court’s sua sponte denial of his in
    forma pauperis pro se motion to vacate, set aside, or correct his sentence pursuant to 
    28 U.S.C. § 2255
    . He contends that 1) his conviction was obtained by use of a coerced
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    confession and illegal tampering with evidence; 2) his sentence was improperly enhanced;
    and 3) his trial counsel was ineffective. We affirm.
    Following a jury trial, Woodward was convicted of arson under 
    18 U.S.C. § 844
    (i).
    On appeal, we affirmed his conviction, but remanded the case for resentencing. United
    States v. Woodward, No. 93-3123, 
    1993 WL 498178
     (10th Cir. Dec. 2, 1993). The
    details and relevant background facts are fully set forth in our order and judgment. 
    Id.
    On remand for resentencing, the district court relied on U.S.S.G. § 3C1.1 to enhance
    Woodward’s sentence for obstruction of justice based on a finding that Woodward
    perjured himself during his testimony at trial. Woodward did not appeal. Rather, he has
    bundled his challenge to the sentence on remand with the ineffectiveness and other claims
    listed above.
    Except for the ineffectiveness claim, see United States v. Galloway, 
    56 F.3d 1239
    ,
    1242 (10th Cir. 1995) (en banc), Woodward’s claims are subject to procedural bar.
    United States v. Cook, 
    997 F.2d 1312
    , 1320 (10th Cir. 1993). However, the government
    did not assert, and the district court did not consider the issue of default. Therefore, we
    elect to address the merits, since we would examine them under the ineffectiveness claim,
    albeit under a different standard, and since Woodward had no opportunity to raise the
    mitigating factors of cause and prejudice below. See Hines v. United States, 
    971 F.2d 506
    , 509 (10th Cir. 1992).
    -2-
    The district court thoroughly analyzed Woodward’s claims. See United States v.
    Woodward, 
    896 F. Supp. 1078
     (D. Kan. 1995). Having considered Woodward’s
    argument on appeal, and the record, we affirm substantially for the reasons stated in the
    district court’s opinion. See 
    Id.
    AFFIRMED.
    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge
    -3-
    

Document Info

Docket Number: 95-3250

Filed Date: 2/12/1996

Precedential Status: Non-Precedential

Modified Date: 4/17/2021