United States v. Williams ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6247
(D.C. No. CIV-97-599-R)
WENDELL LAMONT WILLIAMS, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, BARRETT, and HENRY, Circuit Judges.
After examining defendant’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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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.
Defendant Wendell Lamont Williams appeals the district court’s denial of
his motion to vacate, set aside or correct his sentence, brought pursuant to 28
U.S.C. § 2255. Because defendant has not made a substantial showing of the
denial of a constitutional right, we deny his application for a certificate of
appealability and dismiss the appeal.
In February 1994, pursuant to a plea agreement, defendant pled guilty to
one count of conspiracy to distribute crack cocaine in exchange for dismissal of
the remaining counts of a superseding indictment. He was sentenced to 360
months’ incarceration, based on coconspirator testimony linking him to the
distribution of ninety-four ounces of cocaine base; evidence of his managerial
role in the conspiracy; and his failure to take responsibility for his conduct.
Defendant did not appeal.
On April 21, 1997, defendant filed his § 2255 motion, alleging his attorney
was ineffective in failing to object to the amount of cocaine attributed to him, to
his designation as a manager, and to the finding that he did not take responsibility
for his conduct. The district court denied the motion, finding that counsel’s
decision not to object was neither deficient nor prejudicial. This appeal followed.
Before maintaining this appeal, defendant must obtain a certificate of
appealability by making “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Defendant’s claim of ineffective assistance does
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not meet this burden. To show his attorney was ineffective in failing to object to
the factors used in calculating his sentence, defendant must demonstrate both that
counsel’s performance fell below an objective standard of reasonableness and that
the deficient performance was prejudicial. See United States v. Cook, 45 F.3d
388, 392 (10th Cir. 1995). Defendant has not shown either deficient performance
or prejudice.
The record makes clear that defendant’s attorney considered challenging
the amount of cocaine attributable to defendant but made a tactical decision not to
do so. See R. I, Plea Hearing Tr. dated Feb. 14, 1994, at 11. Further, defendant
has not presented any evidence demonstrating that less than ninety-four ounces
were involved. The court’s findings that defendant took a managerial role and
that he had not accepted responsibility are supported by the record, and defendant
has not shown how an objection would have been successful. Finally, in light of
counsel’s stated strategy of obtaining a sentence reduction based on defendant’s
future cooperation, defendant has not shown the decision to refrain from objecting
to the sentencing factors was anything but tactical.
We indulge in a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” and presume that “under the
circumstances, the challenged action might be considered sound trial strategy.”
Strickland v. Washington, 466 U.S. 668, 689 (1984) (quotations omitted). Absent
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evidence overcoming this presumption of effective representation, we deny
defendant’s application for a certificate of appealability.
The appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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