United States v. Johnson , 53 F. App'x 43 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 13 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
No. 02-3040
v. (District of Kansas)
(D.C. No. 01-CV-3061-WEB)
TOMMIE L. JOHNSON,
Defendant-Petitioner.
ORDER AND JUDGMENT *
Before KELLY, McKAY, 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This order and judgment is not binding precedent, except under the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.
This case is before the court on Tommie L. Johnson’s pro se request for a
certificate of appealability (“COA”). Until Johnson obtains a COA, he cannot
appeal the district court’s denial of the motion to vacate, set aside, or correct
sentence he 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
motion unless he first obtains a COA).
In 1999, Johnson was convicted of one count of possession with intent to
distribute cocaine base. His conviction was affirmed by this court. See United
States v. Johnson , No. 99-3225, 2000 WL 505250 (10th Cir. April 27, 2000)
(unpublished disposition). Thereafter, Johnson filed the instant § 2255 motion
with the United States District Court for the District of Kansas. In the motion,
Johnson alleged that his conviction and sentence are contrary to Apprendi v. New
Jersey , 530 U.S. 466 (2000). He also asserted that his counsel was ineffective for
failing to raise the Apprendi issue. The district court denied Johnson’s § 2255
motion, concluding that Apprendi does not apply retroactively to cases on
collateral review and that Johnson’s ineffective assistance claim lacked merit
because Johnson failed to make a credible showing that his counsel’s
performance was deficient.
Johnson did not raise an Apprendi -type claim in his direct appeal and this
court has held that Apprendi is not retroactively applicable to initial habeas
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petitions. See United States v. Mora , 293 F.3d 1213, 1218 (10th Cir. 2002).
Consequently, Johnson’s Apprendi claims are foreclosed by circuit precedent.
Likewise, Johnson’s argument that the failure to allege a drug quantity in the
indictment deprived the trial court of jurisdiction is foreclosed by Supreme Court
precedent. See United States v. Cotton , 535 U.S. 625, 122 S. Ct. 1781, 1785
(2002).
Johnson also asserts that his counsel was ineffective for failing to raise the
Apprendi issue either during his trial or on direct appeal. 1
To prevail on this
issue, Johnson must demonstrate that his counsel’s performance fell below an
objective standard of reasonableness and that he was prejudiced by counsel’s
deficient performance. See Strickland v. Washington , 466 U.S. 668, 687-92
(1984). At the time of Johnson’s trial and his direct appeal, this court’s
jurisprudence was directly contrary to the holding in Apprendi . See , e.g. , United
States v. Reyes , 40 F.3d 1148, 1151 (10th Cir. 1994). Apprendi was decided after
1
Johnson’s additional argument that his counsel’s failure to file a petition
for a writ of certiorari with the Supreme Court constitutes ineffective assistance
was not presented to the district court. Consequently, we decline to address it.
See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002)
(“[A]bsent extraordinary circumstances, [this court] will not consider arguments
raised for the first time on appeal. This is true whether an appellant is attempting
to raise a bald-faced new issue or a new theory that falls under the same general
category as a previous argument.”(quotations and citation omitted)). We note,
additionally, that Johnson has provided no support for this argument.
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Johnson’s conviction was affirmed on direct appeal. This court has previously
held that counsel’s failure to predict future developments in the law does not
constitute constitutionally deficient performance. See United States v. Gonzales-
Lerma , 71 F.3d 1537, 1541-42 (10th Cir. 1995) (“Clairvoyance is not a required
attribute of effective representation.”). Accordingly, Johnson’s ineffective
assistance claims fail because he has not demonstrated that his counsel’s
performance was constitutionally deficient.
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 ,
529 U.S. 473, 483-84 (2000). Based on our review of Johnson’s request for a
COA, his appellate brief, the district court’s order, and the entire record before
us, we conclude that the district court’s disposition of Johnson’s § 2255 motion
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
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is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(b). This court denies
Johnson’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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