United States v. Johnson ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 14 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-6250
v. (W. District of Oklahoma)
(D.C. No. 96-CR-80-L)
COYETTE DEON JOHNSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining Appellant’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)(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This order and judgment is not binding precedent, except under the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.
The case is before this court on Appellant, Coyette Deon Johnson’s request
for a certificate of appealability (“COA”). Johnson seeks a COA so he can
appeal the district court’s denial of his motion to vacate, set aside, or correct
sentence brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(b)
(providing that a petitioner may not appeal the denial of a § 2255 petition unless
he first obtains a COA). Johnson has not made “a substantial showing of the
denial of a constitutional right,” and, therefore, this court denies Johnson’s
request for a COA and dismisses the appeal. See id. § 2253(c)(2).
After a jury trial, Johnson was convicted of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1), being an unlawful user of
controlled substances in possession of a firearm in violation of 18 U.S.C. §
922(g)(3), and distribution of a controlled substance in violation of 21 U.S.C. §
841(a)(1). Johnson was sentenced as a career criminal under 18 U.S.C. §
924(e)(1). On direct appeal, this court affirmed Johnson’s convictions based on
violations of 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a)(1) but instructed the
district court to vacate Johnson’s conviction based on 18 U.S.C. § 922(g)(3). See
United States v. Johnson , 130 F.3d 1420, 1426 (10th Cir. 1997). Johnson’s
sentence of 237 months, however, was affirmed. See id. at 1430-31.
Johnson next filed the instant § 2255 habeas petition. In his petition,
Johnson raised two claims, both related to his sentencing. The district court
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determined that Johnson had not raised either sentencing claim in his direct
appeal and, therefore, the claims were procedurally barred unless Johnson could
show cause and prejudice for the default or demonstrate that a fundamental
miscarriage of justice would result if his claims were not considered. See
Coleman v. Thompson , 501 U.S. 722, 750 (1991). The district court then
addressed Johnson’s assertion that his failure to raise the claims was the result of
ineffective assistance of counsel. The court prepared a comprehensive order
analyzing the merits of Johnson’s ineffective assistance claims. See United
States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A defendant may establish
cause for procedural default by showing he received ineffective assistance of
counsel.”). Based on that analysis, the district court determined that Johnson had
failed to show either constitutionally-deficient performance on the part of his
counsel or that he was prejudiced by the alleged deficient performance. See
Strickland v. Washington , 466 U.S. 668, 687 (1984). The district court, thus,
entered judgment denying Johnson’s § 2255 petition. 1
Johnson then sought and
Johnson has not presented any argument either to the district court or to
1
this court that a fundamental miscarriage of justice would result if his claims were
not considered. “The fundamental miscarriage of justice exception is
available only where the prisoner supplements his constitutional claim with a
colorable showing of factual innocence.” Herrera v. Collins , 506 U.S. 390, 404
(1993) (quotation omitted).
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was denied a COA. 2
In this appeal, Johnson raises the same issues he raised
before the district court.
Johnson is not entitled to a COA unless he can make “a substantial
showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2).
Johnson can make that showing by demonstrating that: (1) the issues raised are
debatable among jurists, (2) a court could resolve the issues differently, or (3)
that the questions presented deserve further proceedings. See Slack v. McDaniel ,
120 S. Ct. 1595, 1603-04 (2000).
This court has reviewed Johnson’s request for a COA, Johnson’s appellate
brief, the district court’s order, and the entire record before us. That review
demonstrates that the district court’s disposition of Johnson’s § 2255 petition is
not deserving of further proceedings, debatable among jurists of reason, or
subject to different resolution on appeal. Accordingly, Johnson has failed to
make the required substantial showing of the denial of a constitutional right and
is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(b). This court denies
Johnson’s request for a COA for substantially those reasons set forth in the
district court’s order dated May 31, 2000, and dismisses this appeal.
ENTERED FOR THE COURT
The district court also denied Johnson’s motion to proceed in forma
2
pauperis on appeal. Johnson renewed that motion before this court. Johnson’s
renewed motion to proceed in forma pauperis on appeal is denied.
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Michael R. Murphy
Circuit Judge
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