United States v. Washington , 45 F. App'x 862 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 5 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-6369
(D.C. Nos. CIV-97-997-R
LEE ROY WASHINGTON, & 93-CR-175-R)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and HARTZ , Circuit Judges.
After examining the brief 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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.
Petitioner Lee Roy Washington renews his application for a certificate of
appealability (“COA”) that would permit him to appeal from the district court’s
order denying relief on his habeas petition brought pursuant to 28 U.S.C. § 2255.
See 28 U.S.C. § 2253(c)(1)(B). We have jurisdiction under 28 U.S.C. §§ 1291and 2253(a). Because Mr. Washington has failed to make a “substantial showing
of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we
deny his application for COA and dismiss the appeal.
I. Facts and proceedings
In 1994 Mr. Washington pleaded guilty to one count of conspiring to
possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 in
exchange for the government dropping an additional charge of possession of
cocaine with intent to distribute. The plea agreement stated that approximately
550 grams to 1.5 kilograms of cocaine base (“crack”) were attributable to
Mr. Washington for sentencing purposes, and Mr. Washington admitted at the
plea hearing that he sold crack for others. R. Doc. 773 at 11 (Sept. 19, 2001
Order) (hereinafter “Order”). The court accepted the guilty plea and sentenced
Mr. Washington to 262 months’ imprisonment. We affirmed his conviction on
appeal. United States v. Washington , No. 94-6104, 1995 WL 50051 (10th Cir.
Feb. 8, 1995) (unpublished).
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In 1997, Mr. Washington filed a § 2255 motion, asserting four grounds for
relief. The district court held that all claims, except those alleging ineffective
assistance of counsel, were procedurally barred for failure to raise them on direct
appeal, and that Mr. Washington had neither shown cause and actual prejudice to
excuse that failure nor that there would be a fundamental miscarriage of justice
absent review. Order at 4. The court carefully analyzed Mr. Washington’s
ineffective-assistance-of-counsel claims on the merits, and rejected them using
the standards enunciated in Strickland v. Washington , 466 U.S. 668 (1984). The
court later denied his application for a COA.
II. Discussion
Mr. Washington may make a “substantial showing of the denial of a
constitutional right” by demonstrating that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong or that
the question presented deserves further proceedings. See Slack v. McDaniel , 529
U.S. 473, 483-84 (2000). “[W]e review the district court’s legal rulings on a
§ 2255 motion de novo and its findings of fact for clear error.” United States v.
Pearce , 146 F.3d 771, 774 (10th Cir. 1998).
Mr. Washington raises three issues in his application for COA: (1) he was
denied effective assistance of counsel, which he could have proved if the court
had granted an evidentiary hearing; (2) his guilty plea was neither knowing nor
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voluntary, and he was entitled to an evidentiary hearing on this issue; and (3) he
was subjected to an illegal sentence under Apprendi v. New Jersey , 530 U.S. 466(2000). We have carefully reviewed the record submitted for review,
Mr. Washington’s brief, and the applicable law, and, for substantially the same
reasons stated by the district court, we determine that Mr. Washington has failed
to demonstrate that the district court’s rulings were debatable or wrong or that the
questions presented deserve further proceedings. In concluding that his
application for a COA should be denied, we also separately address three issues.
A. Denial of motion for evidentiary hearing on ineffective-assistance-
of-counsel and voluntariness-of-plea claims
In his application for COA, Mr. Washington claims that trial counsel’s
assistance was ineffective in four respects: he failed to attempt to withdraw the
guilty plea; he failed to inform Mr. Washington of the consequences of his plea;
he failed to challenge the computation of drug amounts attributable to Mr.
Washington; and he failed to make enough or different objections to the
presentencing report. Mr. Washington further asserts that his plea was not
knowingly and voluntarily entered because he did not understand he was subject
to a mandatory minimum penalty of ten years. He argues that, through an
evidentiary hearing, he could have established both claims by showing the
following: (1) he relied on his counsel’s advice to plead guilty because counsel
lead him to believe he would be punished more severely if he went to trial and
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was convicted; (2) he could not recall reading the indictment or presentence
report or reviewing discovery materials or the presentence report with counsel,
did not understand the charge to which he was entering a plea of guilty, and could
not recall the court reading the indictment in open court; (3) counsel told him that
he would be sentenced to no more than five years’ imprisonment if he pleaded
guilty, and did not provide him with an estimate of his guideline range of
punishment; (4) he desired to withdraw his guilty plea on his subjective belief
that, because he had failed to honor his agreement to testify truthfully for the
government, the plea agreement was “void,” but counsel refused to file a motion
to withdraw the plea; (5) he did not understand that “ten years to life” meant that
he was facing a mandatory minimum sentence of ten years, he did not recall the
district court advising him that it lacked authority to sentence him for less than
ten years, and he was unaware of the actual sentencing consequences; and (6) if
he had been properly advised of the mandatory sentence and that a reasonably
accurate estimate of the guidelines would have placed his punishment far in
excess of ten years, he would not have pleaded guilty.
In habeas proceedings, a district court should conduct an evidentiary
hearing “[u]nless the motion and files and records of the case conclusively show
that the prisoner is entitled to no relief.” United States v. Lopez , 100 F.3d 113,
119 (10th Cir. 1996) (quotation and citation omitted). Here, the district court
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denied the request for evidentiary hearing, concluding that most of
Mr. Washington’s assertions were “wholly incredible” based on the written and
signed plea agreement, the petition to enter a guilty plea, and the transcript of the
plea colloquy belying his assertions. Order at 9. “Solemn declarations in open
court carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal,
as are contentions that in the face of the record are wholly incredible.”
Blackledge v. Allison , 431 U.S. 63, 74 (1977).
Mr. Washington claims that, because the government did not assert that the
handwriting on the written plea agreement was Mr. Washington’s and the
transcript shows only that Mr. Washington affirmatively responded to the court’s
inquiries, an evidentiary hearing should have been held. We disagree. If the
handwriting was not Mr. Washington’s, he should have made that claim in district
court instead of remaining silent. Indeed, he does not, even now, claim that it is
not his handwriting. The district court found that Mr. Washington was clearly
informed of the mandatory minimum, as demonstrated by his statements in his
Petition to Enter Plea of Guilty. See Order at 8. The district court further noted
that the government verbally stated the charge, as well as the mandatory minimum
and maximum sentences to which Mr. Washington was subject, at the plea
hearing. Id. at 10 n.3. The district court found that the record establishes that
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Mr. Washington stated he knew and understood the charges against him and the
basic consequences of his plea, and Mr. Washington submitted no documents to
this court to refute that finding, nor did he submit the plea documents or
transcript to this court for review. Thus, as the district court noted, even if
counsel failed to separately inform Mr. Washington of the mandatory minimum, it
was not prejudicial. See id. at 10.
Because of this complete failure of credibility in light of the record as
summarized by the district court, Mr. Washington also could not establish through
his proposed testimony that his plea was not knowing and voluntary, and the
district court properly applied a procedural bar to that claim. See Bousley v.
United States , 523 U.S. 614, 622 (1998) (procedural bar precludes consideration
of voluntariness of guilty plea on collateral review if not raised on direct appeal
absent showing of cause and actual prejudice or actual innocence). The district
court did not abuse its discretion by denying an evidentiary hearing. See Lopez ,
100 F.3d at 119.
B. Ineffective assistance of appellate counsel
Mr. Washington argues that the district court erred in requiring him to
establish that appellate counsel failed to raise a “dead-bang winner” in order to
establish objectively unreasonable appellate performance. We rejected the “dead-
bang winner” language as a standard for ineffective-assistance-of-counsel claims
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in Neill v. Gibson , 278 F.3d 1044, 1057 n.5 (10th Cir. 2001), petition for cert.
filed (U.S. May 06, 2002) (No. 01-10121). We note, however, that the district
court determined that none of the claims raised by Mr. Washington had any merit,
thus Mr. Washington failed to show “a reasonable probability that the omitted
claim would have resulted in a reversal on appeal.” Id. The court actually
applied the proper standard in rejecting Mr. Washington’s ineffective-assistance-
of-appellate-counsel claim notwithstanding the use of the “dead-bang winner”
language.
C. Application of Apprendi
Mr. Washington contends that his indictment was constitutionally defective
because it did not allege an amount of crack associated with the charged
conspiracy 1 and therefore violated the Supreme Court’s ruling in Apprendi . That
argument is foreclosed by our recent decision holding that Apprendi does not
apply retroactively to initial § 2255 motions. United States v. Mora , 293 F.3d
1213, 1219 (10th Cir. 2002).
1
Contrary to Mr. Washington’s claim, the district court noted that the
indictment alleged that the co-conspirators collectively distributed a total of
almost 800 grams of crack. Order at 21. Mr. Washington did not provide the
indictment for our review.
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We deny a COA and DISMISS the appeal.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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