United States v. Grayson , 364 F. App'x 407 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 25, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-7075
v. (Case No. 08-CV-00349-JHP)
DANIEL RAY GRAYSON, (E.D. Okla.)
Defendant-Appellant.
ORDER *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Defendant, a federal prisoner represented by appointed counsel, seeks a
certificate of appealability to appeal the district court’s denial of his § 2255
habeas petition. Following a jury trial, Defendant was convicted of conspiracy to
possess narcotics with intent to distribute and was sentenced to 360 months’
imprisonment. His conviction and sentence were affirmed on direct appeal. See
United States v. Grayson, 258 F. App’x 170 (10th Cir. 2007). Defendant then
filed a § 2255 motion alleging ineffective assistance of counsel based on, inter
alia, trial counsel’s alleged failure to convey a plea offer made by the
prosecution. After appointing counsel to represent Defendant in the habeas
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proceeding, the district court held an evidentiary hearing at which trial counsel,
Defendant, and the prosecuting attorney testified. Following this hearing, the
court concluded that trial counsel had made no error warranting reversal, and the
court therefore denied the habeas petition. Defendant now seeks a certificate of
appealability regarding the alleged failure of trial counsel to convey or discuss the
plea offer with him.
At the evidentiary hearing, Defendant testified that he never received any
information from counsel concerning a plea offer, while trial counsel testified that
he discussed the government’s plea offer and the benefits of entering a plea of
guilty with Defendant. The district court’s decision to credit trial counsel’s
testimony over Defendant’s is reviewable by this court only for clear error. See
United States v. Carr, 80 F.3d 413, 417-18 (10th Cir. 1996). After thoroughly
reviewing the record on appeal, we conclude that reasonable jurists would not
debate the district court’s resolution of this credibility question under clear error
review. We further conclude that reasonable jurists would not debate the district
court’s ultimate determination that Defendant had not satisfied the Strickland
standard for demonstrating that he received ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 688-89 (1984). We therefore DENY
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Defendant’s request for a certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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