United States v. Walters , 163 F. App'x 674 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 18, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-3273
(D.C. No. 02-CV-3409-SAC)
JAY DEE WALTERS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and BRORBY, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
In 1999, Petitioner Jay Dee Walters (“Jay Dee” or “Mr. Walters”) and his
wife, Cheryl Walters, were indicted on various drug-related offenses. At their
*
This order and judgment is not binding precedent, except under the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.
trial, the jury deadlocked on the charges against Cheryl but convicted Jay Dee on
one of the counts returned in the superseding indictment: conspiracy to
manufacture and distribute in excess of one kilogram of a mixture or substance
containing a detectable amount of methamphetamine in violation of 21 U.S.C.
§§ 841 and 846. However, the jury did not make a finding as to the specific drug
quantity involved in the offense. Applying a “theoretical yield” calculation at
sentencing, the district court determined that 214 grams of methamphetamine
could have been manufactured given the estimated amount of precursors that
Mr. Walters and his wife had purchased for use by other members of the
conspiracy in the manufacturing process. The district court sentenced
Mr. Walters to 121 months’ imprisonment and a five-year term of supervised
release under § 841(b)(1)(C) and the United States Sentencing Guidelines
(“Federal Guidelines”). A panel of this court affirmed the conviction and
sentence on direct appeal on December 7, 2001. See United States v. Walters,
28 Fed. Appx. 902 (10th Cir. 2001) (unpublished).
Although Mr. Walters did not file a petition for a writ of certiorari with the
Supreme Court, he did file a timely motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. The district court denied the motion but
granted him a certificate of appealability (“COA”) on issues numbered five,
seven, and twelve in his COA application. In addition to these three issues, he
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has filed a renewed application for a COA in this court on nine other issues
(“Renewed COA Application”). Exercising jurisdiction under 28 U.S.C. §§ 1291and 2253(a), we AFFIRM the denial of his § 2255 motion. We also GRANT his
motion to proceed in forma pauperis and DENY his Renewed COA Application
and his other pending motions.
I. General Legal Standards and Standards of Review.
A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). Accordingly, we may consider only the issues certified
by the district court in its order granting a COA, plus any issues on which we
grant a COA.
“[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). “Absent an intervening change in the law of a circuit,
issues disposed of on direct appeal generally will not be considered on a collateral
attack by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789,
791 (10th Cir. 1989). The intervening change in the law must be retroactively
applicable to cases on collateral review. See United States v. Price, 400 F.3d 844,
845 (10th Cir.) (denying petition for rehearing on ground that an intervening
change in the law by the Supreme Court was not retroactively applicable to an
initial § 2255 motion), cert. denied, 126 S. Ct. 731 (2005).
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A petitioner also is barred from raising an issue in a § 2255 motion that he
failed to raise on direct appeal “unless he establishes either cause excusing the
procedural default and prejudice resulting from the error or a fundamental
miscarriage of justice if the claim is not considered.” United States v. Cox,
83 F.3d 336, 341 (10th Cir. 1996). The procedural default rule does not apply to
claims of ineffective assistance of counsel regardless of whether the claim could
have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504
(2003). Thus, “[a] defendant may establish cause for his procedural default by
showing that he received ineffective assistance of counsel in violation of the
Sixth Amendment.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
To establish that counsel was ineffective, “a defendant must show that
(1) his counsel’s performance was constitutionally deficient, and (2) counsel’s
deficient performance was prejudicial.” Id. (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). To establish the first component, deficient
performance, a “defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. We “indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. To establish the second
component, prejudice, a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
The Strickland standard applies equally to ineffective assistance claims
concerning trial and appellate counsel. Cook, 45 F.3d at 392. “[I]n analyzing an
appellate ineffectiveness claim based upon the failure to raise an issue on appeal,
we look to the merits of the omitted issue.” Cargle v. Mullin, 317 F.3d 1196,
1202 (10th Cir. 2003) (quotation omitted). The omission of a meritless issue does
not constitute deficient performance. Id. “Whether a petitioner’s claim satisfies
Strickland’s two-part test is a mixed question of law and fact we review de novo.”
Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002).
“The incarceration of one actually innocent of the crime of which he has
been convicted constitutes a grave miscarriage of justice.” United States v.
Cervini, 379 F.3d 987, 991 (10th Cir. 2004). “There must be a showing that no
reasonable juror would have found the defendant guilty.” Id. (quotation omitted).
Because Mr. Walters appears pro se, we review his pleadings and other
papers liberally and hold them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
II. Issues Presented in the District Court’s COA.
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The district court certified three of the issues Mr. Walters presented in his
application for a COA: (1) counsel was ineffective by not arguing on direct
appeal that the government’s failure to prove the amount of methamphetamine
charged in the indictment, in excess of one kilogram, violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), particularly in view of Blakely v. Washington,
542 U.S. 296 (2004); 1 (2) Mr. Walters’ Fifth Amendment due process rights and
his Sixth Amendment right to a jury trial were violated under Apprendi and
Blakely because the district court made drug quantity findings instead of the jury;
and (3) his Fifth Amendment right to due process and his Sixth Amendment rights
to notice of the nature and cause of the accusations against him and to a jury trial
were violated under Apprendi and Blakely because the indictment did not charge
the proper weight and the jury was not instructed to make a factual finding as to
drug quantity in its verdict. 2
1
In his application for a COA, Mr. Walters did not rely on United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), as the Supreme Court decided
Booker after the district court ruled on the application. However, Mr. Walters
addresses Booker in his briefs on appeal, and we consider it below.
2
We note that, as stated in Mr. Walters’ § 2255 motion and his application
for a COA, the second and third issues certified for appeal were not clearly
couched in terms of ineffective assistance of counsel. However, because they
involve variants of the first issue, which clearly alleges ineffective assistance of
counsel, we will consider the second and third issues to include a claim of
ineffective assistance of appellate counsel.
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The district court considered these issues to be “thinly veiled recasts of the
Apprendi issues that the defendant unsuccessfully advanced on direct appeal” and
procedurally barred. R., Vol. I, doc. 307 at 24. The Apprendi argument raised on
direct appeal concerned whether, in the absence of a jury finding as to drug
quantity, the district court could impose a term of supervised release of five years
when 21 U.S.C. § 841(b)(1)(C) provided for a minimum term of three years.
Walters, 28 Fed. Appx. at 904. We concluded that Apprendi did not prevent the
district court from imposing the five-year term because the statute provided no
maximum term. Id. at 904-05. Although the reasoning we applied to that issue
compels the same conclusion on the Apprendi issues that form the predicate for
the ineffective assistance of counsel claims the district court certified, the
Apprendi issue raised on direct appeal is different from the Apprendi issues raised
in the § 2255 motion. Nevertheless, the new Apprendi issues are procedurally
barred because they could have been raised on direct appeal but were not. We
now turn to Mr. Walters’ attempt to overcome the procedural bar by alleging
ineffective assistance of counsel.
In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
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doubt.” Apprendi, 530 U.S. at 490. Prior to the date on which Mr. Walters’
conviction became final, this circuit interpreted Apprendi as follows:
[T]he quantity of drugs involved in a violation of § 841 is an
essential element of the offense if that fact exposes the defendant to
a heightened maximum sentence under § 841(b)(1)(A) or (B). A
district court may not impose a sentence in excess of the maximum
set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity
. . . for an enhanced penalty is alleged in the indictment in addition to
being submitted to the jury and proven beyond a reasonable doubt.
United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). The corollary of
this statement is that the quantity of drugs involved in a violation of § 841 is not
an essential element of the offense if a district court imposes a sentence that does
not exceed the maximum set forth in § 841(b)(1)(C), which does not require any
minimum quantity as a predicate for sentencing. Cf. United States v. Thompson,
237 F.3d 1258, 1262 (10th Cir. 2001) (holding that, “because the indictment set
forth all the necessary elements of a crime as defined by 21 U.S.C. § 841(a) and
21 U.S.C. § 846, and because the minimum statutory range [of § 841(b)(1)(C)]
. . . does not specify a drug amount, neither the indictment [which did not specify
any drug quantity] nor the conviction was defective” under Apprendi). Thus,
under Apprendi, a jury could determine that a defendant is guilty of a violation of
§ 841(a) even if the jury is unable to find a specific quantity or finds a quantity
less than that charged in the indictment. The district court then could impose any
sentence in accordance with the Federal Guidelines provided that the sentence did
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not exceed the applicable statutory maximum set forth in § 841(b)(1)(C). This is
what happened in Mr. Walters’ case.
In Blakely, the Supreme Court considered the sentencing scheme of the
state of Washington and held that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” Blakely,
542 U.S. at 303. After the district court issued its COA in this case, the Supreme
Court extended the rule in Blakely to the Federal Guidelines. See United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 755 (2005). The Court held that “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at 756.
Blakely and Booker, however, have no effect on Apprendi for purposes of
Mr. Walters’ § 2255 motion. Neither case applies retroactively to initial § 2255
motions that challenge convictions that became final prior to the effective dates
of those cases. See United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir.
2005); Price, 400 F.3d at 849. After we decided his direct appeal on December 7,
2001, Mr. Walters did not file a petition for a writ of certiorari. Therefore, his
conviction became final ninety days later, on March 7, 2001, long before June 24,
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2004, the effective date of Blakely, or January 12, 2005, the effective date of
Booker. See Price, 400 F.3d at 846 (setting out method to determine finality of
conviction for retroactivity purposes); Sup. Ct. R. 13.1. (providing a ninety-day
period for filing a certiorari petition).
We are unpersuaded by Mr. Walters’ argument that Blakely and Booker
merely clarified Apprendi such that their retroactive applicability is irrelevant to
his § 2255 motion. Blakely created a new procedural rule. Price, 400 F.3d at
846. Because that rule is inapplicable to Mr. Walters’ § 2255 motion, id. at 845,
his conviction and sentence do not violate Apprendi. Additionally, Mr. Walters
relies mistakenly on United States v. Arras, 373 F.3d 1071 (10th Cir. 2004), and
United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001), overruled on other
grounds by United States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001) (en
banc) (per curiam). In each of those cases, we held that, under Apprendi, drug
quantity must be charged in the indictment if the court applies one of the
enhanced sentences of § 841(b)(1)(A) or (B). Arras, 373 F.3d at 1074; Jackson,
240 F.3d at 1248. Those cases did not involve a sentence under § 841(b)(1)(C).
Accordingly, because there is no merit to Mr. Walters’ underlying
arguments concerning the drug quantity charged in the indictment and the fact
that the district court determined drug quantity rather than the jury, we conclude
that counsel’s failure to raise these issues on direct appeal was not deficient
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performance, see Cargle, 317 F.3d at 1202. For the same reason, it was not error
for the district court to fail to instruct the jury to make a drug quantity finding,
and counsel’s failure to raise that issue on direct appeal likewise is not deficient.
We also conclude that Mr. Walters’ Sixth Amendment right to notice of the
nature and cause of the accusations against him was not violated by the difference
between the drug quantity charged in the indictment, in excess of one kilogram,
and the quantity the district court ultimately calculated, 214 grams. “An
indictment is sufficient if it sets forth the elements of the offense charged, puts
the defendant on fair notice of the charges against which he must defend, and
enables the defendant to assert a double jeopardy defense.” United States v.
Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). As we have concluded that drug
quantity was not an element of the offense in this case, the indictment satisfied
the Sixth Amendment. 3
For the foregoing reasons, we affirm the district court’s denial of
Mr. Walters’ § 2255 motion on the issues certified for appeal.
3
We have also considered Mr. Walters’ “Memorandum of Fact to Clarify
Record,” in which he argues, inter alia, that the direct appeal panel erred in its
consideration of the district court’s ruling that his objections to the use of a
“theoretical yield” concept in calculating drug quantity were untimely. Ignoring
the procedural infirmities of this filing and assuming Mr. Walters is correct that
his objections were timely filed, we see no prejudice in the direct appeal panel’s
determination. That panel considered the gravamen of the objection he discusses
in the memorandum of fact, that the information on which the theoretical yield
was based was itself flawed, and rejected it. Walters, 28 Fed. Appx. at 907.
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III. Issues Presented in Mr. Walters’ Renewed COA Application.
We review Mr. Walters’ Renewed COA Application in order to determine if
he “has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To meet this standard, he “must ‘sho[w] that reasonable
jurists could debate whether (or, for that matter, agree that) the [§ 2255] petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.’” Miller-El, 537 U.S. at
336 (first alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)) (further quotation omitted). When a district court denies a § 2255 motion
on procedural grounds and does not reach the underlying constitutional claim, a
petitioner must show that it is reasonably debatable “whether the petition states a
valid claim of the denial of a constitutional right and . . . whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Additionally,
“we may deny a COA if there is a plain procedural bar to habeas relief, even
though the district court did not rely on that bar.” Davis v. Roberts, 425 F.3d
830, 834 (10th Cir. 2005).
Although Mr. Walters is not required to prove the merits of the case in
order to obtain a COA, he “must prove something more than the absence of
frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338(quotations omitted). In evaluating whether he has satisfied his burden, we
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perform “an overview of the claims . . . and a general assessment of their
merits. . . . This threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims. In fact, the statute forbids
it.” Id. at 336.
The first two issues Mr. Walters raises in the Renewed COA Application
are related: whether counsel rendered ineffective assistance by representing both
Mr. Walters and his wife, Cheryl, when they gave voluntary statements to the
Kansas Bureau of Investigation (“KBI”), and by failing to investigate facts prior
to permitting the interview. 4 The district court concluded that there was no
conflict because Mr. Walters and his wife shared a common coercion defense and
their statements did not conflict, and Mr. Walters provided no evidence showing
why counsel should have advised them not to cooperate with the KBI until he had
a chance to investigate.
4
Both Jay Dee and Cheryl were represented by the same attorney prior to and
at their trial. In his applications for a COA, Mr. Walters asserts that a conflict of
interest prevented counsel from calling Cheryl as a witness at trial to offer
evidence that would buttress the coercion defense or downplay Jay Dee’s role in
the conspiracy. He also asserts that the admission of Cheryl’s recorded statement
violated his Sixth Amendment confrontation clause rights because she did not
testify. However, he did not present these arguments to the district court in his
§ 2255 motion. Therefore, we do not consider them. See United States v. Mora,
293 F.3d 1213, 1216 (10th Cir. 2002) (applying “the general rule that we do not
address arguments presented for the first time on appeal” to an appeal from the
denial of a § 2255 motion).
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When, as here, a defendant does not raise a potential conflict of interest in
the trial court, the mere possibility of conflict is insufficient to reverse a criminal
conviction; the defendant “must demonstrate that an actual conflict of interest
adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,
348 (1980). “‘[U]ntil . . . a defendant shows that his counsel actively represented
conflicting interests, he has not established the constitutional predicate for his
claim of ineffective assistance.’” Mickens v. Taylor, 535 U.S. 162, 175 (2002)
(quoting Cuyler, 446 U.S. at 350). “[T]o demonstrate an actual conflict of
interest, the petitioner must be able to point to specific instances in the record
which suggest an impairment or compromise of his interests for the benefit of
another party.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)
(quotation omitted). “Without a showing of inconsistent interests, any alleged
conflict remains hypothetical, and does not constitute ineffective assistance.” Id.Mr. Walters argues that his interests diverged from Cheryl’s interests
because he allegedly had a lower level of involvement in the conspiracy than she
did. He also argues that the coercion defense was “invalid otherwise the jury
would have ‘hung’ as to the petitioner as well.” Renewed COA Application at 3.
These arguments are unpersuasive. Even assuming that Cheryl was more involved
than Jay Dee, their interests were aligned in admitting to their respective levels of
involvement and presenting the coercion defense. Mr. Walters has pointed to no
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specific instances of conduct by counsel that suggest the decision to present a
unified defense during the KBI interview was encumbered by a conflict of
interest. Therefore, he has not demonstrated an actual conflict that affected his
lawyer’s performance.
Mr. Walters also argues that, prior to his KBI interview, he met with his
attorney and explained his version of the facts. He contends that counsel’s failure
to investigate further prior to advising him to admit criminal conduct to the KBI
and pursue a coercion defense constitutes ineffective assistance of counsel. As
noted in Strickland:
The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or
actions. . . . [W]hen the facts that support a certain potential line of
defense are generally known to counsel because of what the
defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether. And when a
defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged as
unreasonable.
Strickland, 466 U.S. at 691. Notably, Mr. Walters has not provided any of the
substance of the discussion he had with his attorney. Nor has he indicated what
information his attorney might have discovered or explained how such
information would have led to different advice. We conclude that Mr. Walters
has provided nothing that causes us to question the “strong presumption that
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counsel’s conduct falls within the wide range of reasonable professional
assistance,” id. at 689, or that warrants further proceedings.
The third and fifth issues Mr. Walters raises are related: whether trial
counsel was ineffective in failing to object to the admission of evidence, in
particular evidence of a “stand off” with Billy Hill (a member of the conspiracy
who allegedly coerced Mr. Walters into participating) on the so-called “Wamsley
property” and of a methamphetamine lab found there. Mr. Walters claims this
evidence is irrelevant because he had nothing to do with the Wamsley operations.
He also asserts that counsel was ineffective for failing to raise the issues on
appeal. We agree with the district court that the underlying evidentiary issues are
procedurally barred because he should have raised them on direct appeal. We
also conclude that the issues lack merit. The evidence was relevant to
Mr. Walters’ role in the conspiracy because “[a] defendant need not have
knowledge of all the details or all the members of the conspiracy and may play
only a minor role in the conspiracy to incur liability.” United States v.
Mendoza-Salgado, 964 F.2d 993, 1005 (10th Cir. 1992) (quotation omitted).
Accordingly, any objection, and any appeal from the admission of such evidence,
would have been without merit. Therefore, counsel’s performance was not
deficient.
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Mr. Walters’ fourth issue is that trial counsel was ineffective because he
did not permit Mr. Walters to testify at trial, allegedly misinforming him that the
decision was counsel’s to make, not Mr. Walters’ decision. The district court
ruled that Mr. Walters alleged sufficient details on the first prong of the
Strickland test to justify an evidentiary hearing but that none of his allegations
showed prejudice. The court noted that he provided only conclusory allegations
about what his testimony would have been, and the jury heard evidence on
coercion, including Mr. Walters’ own recorded statement to the KBI that he was
coerced. For substantially the same reasons, we agree with the district court that
Mr. Walters’ fourth issue lacks merit. Accordingly, counsel was not ineffective
in failing to raise it on direct appeal.
In his sixth issue, Mr. Walters contends that his sentence violated the Sixth
Amendment under Apprendi because it was based on classifying the
methamphetamine at issue under Schedule II (which is set forth in 21 U.S.C.
§ 812(c)) without it being charged as a Schedule II drug in the indictment and
without a finding by the jury that it was injectable. The district court considered
the merits of this claim and, relying on United States v. Zamora, 784 F.2d 1025(10th Cir. 1986), concluded the law is clearly established that methamphetamine
is a Schedule II drug regardless of its injectability.
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We conclude that this issue is procedurally barred because it should have
been raised on direct appeal. The default cannot be excused as either ineffective
assistance of counsel or a fundamental miscarriage of justice because
Mr. Walters’ argument has no merit under Zamora, where we noted that
methamphetamine was reclassified as a Schedule II drug in 1971:
21 U.S.C. § 811 . . . grants broad power to the Attorney General to
transfer drugs between schedules if he finds potential for abuse and
makes certain other findings. Pursuant to the aforesaid section, the
Attorney General did promulgate changes in Schedule II, to include
methamphetamine, its salts, isomers, and salts of isomers. 21 C.F.R.
§ 1308.12.
Zamora, 784 F.2d at 1030. Other courts have reached the same conclusion. See,
e.g., United States v. Macedo, 371 F.3d 957, 962 (7th Cir. 2004); United States v.
Gori, 324 F.3d 234, 240 (3d Cir. 2003); United States v. Segler, 37 F.3d 1131,
1133 (5th Cir. 1994); United States v. Kendall, 887 F.2d 240, 241-42 (9th Cir.
1989) (per curiam).
Mr. Walters’ seventh issue is that the government failed to inform the grand
jury of mitigating evidence concerning statements made by Mr. Walters and his
wife about Billy Hill’s violent proclivities. The district court noted the
government’s position that it was not aware of the coercion defense until
Mr. Walters and his wife made their statements to the KBI, which was after the
grand jury returned the indictment. The court concluded Mr. Walters had not
supplied any proof that the government discovered any substantial exculpatory
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evidence and withheld it from the grand jury. The court also noted that, because
Mr. Walters’ coercion defense was unsuccessful at trial under a reasonable doubt
standard, there is little chance the defense would have deterred the grand jury
from returning an indictment under the probable cause standard. For substantially
the same reasons, we agree that there is no merit to this argument.
The eighth issue Mr. Walters raises is that his trial in federal court was an
abuse of prosecutorial discretion because the principal conspirators, who
allegedly had much greater involvement in the conspiracy, were tried in state
court. He also alleges that the court lacked jurisdiction over him because his role
in the conspiracy had no link to interstate commerce. The district court concluded
that Mr. Walters failed to state a viable constitutional claim on either ground
because he asserted no improper purpose on the part of the prosecutor in filing the
federal claim and his jurisdictional argument was frivolous. For substantially the
same reasons, we agree that Mr. Walters’ arguments have no merit.
In his ninth and final issue, Mr. Walters challenges the constitutionality of
21 U.S.C. §§ 841(a)(1) and 846, both as applied and facially, because his conduct
in the conspiracy did not affect interstate commerce and the statutes lack a
jurisdictional element requiring a link to interstate commerce. We agree with the
district court that there is no merit to Mr. Walters’ argument. What he fails to
grasp is that “[e]ven activity that is purely intrastate in character may be regulated
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by Congress, where the activity, combined with like conduct by others similarly
situated, affects commerce among the States or with foreign nations.” Fry v.
United States, 421 U.S. 542, 547 (1975). Drug offenses are considered to
regulate a class of activities that necessarily affect interstate commerce. See
United States v. Janus Indus., 48 F.3d 1548, 1556 (10th Cir. 1995). Furthermore,
“the absence of formal findings concerning the effect on interstate commerce . . .
does not prevent Congress from regulating under the Commerce Clause.”
Id. (quotation omitted). We specifically have held that “§ 841(a)(1) and § 846 are
within Congress’ power to regulate interstate commerce.” United States v. Price,
265 F.3d 1097, 1107 (10th Cir. 2001). The statutes, therefore, are facially
constitutional. We also have held that, “[w]hen Congress enacts a statute under
its commerce power, it is not constitutionally obligated to require proof beyond a
reasonable doubt that each individual act in the class of activities regulated had
an effect on interstate commerce.” United States v. Lane, 883 F.2d 1484, 1492
(10th Cir. 1989). Accordingly, the government was not required to prove that
Mr. Walters’ conduct affected interstate commerce.
Based on the foregoing, we conclude that Mr. Walters has failed to make a
substantial showing of the denial of a constitutional right, and we deny his
Renewed COA Application.
IV. Denial of Mr. Walters’ Motion for an Evidentiary Hearing.
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Mr. Walters also complains that the district court erred in denying his
claim that trial counsel had a conflict of interest without an evidentiary hearing.
A district court is required to conduct an evidentiary hearing “[u]nless the motion
and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255. We review the district court’s refusal to
hold an evidentiary hearing for an abuse of discretion. United States v. Clingman,
288 F.3d 1183, 1187 n.4 (10th Cir. 2002). Given that Mr. Walters has failed to
make a substantial showing that counsel was constitutionally ineffective, the
district court did not abuse its discretion in denying an evidentiary hearing.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Mr. Walters’ § 2255 motion. We also DENY his Renewed COA Application and
his motion for leave to file a supplemental brief, and we DISMISS the remainder
of this appeal. We GRANT his motion to proceed in forma pauperis and remind
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him of his obligation under 28 U.S.C. § 1915(b) to make partial payments of the
filing fee until it is paid in full. Finally, we DENY his motions for appointment
of counsel.
Entered for the Court
Wade Brorby
Circuit Judge
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