United States v. Lawrence ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 17 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5209
(D.C. No. CIV-97-404-C)
WILLIAM THOMAS LAWRENCE, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
William Lawrence, a federal inmate appearing pro se, seeks a certificate of
appealability to appeal the district court’s dismissal of his motion to vacate, set
*
This order and judgment is not binding precedent, except under the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.
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255. Because
Lawrence has failed to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a certificate
of appealability and dismiss the appeal.
Lawrence was convicted of conspiracy to possess with intent to distribute
cocaine and to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 984(a)(1).
He was sentenced to 262 months’ imprisonment and five years’ supervised
release. His conviction and sentence were affirmed on appeal. See United States
v. Edwards , 69 F.3d 419 (10th Cir. 1995). In his § 2255, Lawrence claimed he
received ineffective assistance of counsel by counsel’s (1) failure to challenge
several unsigned affidavits seeking a wiretap and unsigned order authorizing use
of the wiretap, and (2) failure to impeach a government witness who testified at
trial that he had prepared and signed an affidavit seeking the wiretap. 1
To prevail on his ineffective assistance of counsel claim, Lawrence must
1
Lawrence also claimed (1) a government chemist who testified at his trial
falsified lab reports; (2) his counsel was ineffective for failing to challenge the
government’s videotape evidence; and (3) his counsel was ineffective for failing
to investigate government agents’ perjured testimony. Lawrence raised these
issues in his motion attacking his sentence and conviction, but he did not raise the
issues in his supporting brief filed in district court. The district court noted
Lawrence had apparently abandoned the issues and ruled even if abandonment did
not occur, all of the issues were without merit. By failing to raise these additional
claims in his brief filed in district court, Lawrence abandoned the issues and we
will not consider them on appeal. See O’Connor v. City & County of Denver , 894
F.2d 1210, 1214 (10th Cir. 1990).
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demonstrate (1) counsel’s performance was constitutionally deficient, i.e., it fell
below an objective standard of reasonableness, Strickland v. Washington , 466
U.S. 668, 688 (1984), and (2) there is a reasonable probability that, but for
counsel’s errors, the outcome of the proceedings would have been different.
Kimmelman v. Morrison , 477 U.S. 365, 375 (1986); Williamson v. Ward , 110
F.3d 1508, 1514 (10th Cir. 1997).
Lawrence’s trial counsel challenged the government’s use of evidence
obtained from the wiretap by filing a motion to suppress, which was denied by the
district court. He also challenged the wiretap on direct appeal. Lawrence’s
appellate counsel argued the wiretap application and order were invalid because
the district attorney who applied for the wiretap order did not have jurisdiction to
do so, the wiretap application contained an insufficient showing of requisite
necessity for interception of communications, and the government failed to
minimize the number of telephone conversations monitored. Lawrence now
argues his trial and appellate counsel were ineffective for failing to challenge the
wiretap on different grounds, namely that the government officials involved in its
procurement failed to sign the appropriate documents.
The wiretap was examined by this court and determined to be lawful in
Lawrence’s direct appeal. See Edwards , 69 F.3d at 430. Specifically, we stated
the “wiretap order was issued pursuant to the Oklahoma wiretap statute.” Id. at
-3-
429. Lawrence’s present challenge regarding whether supporting affidavits and
the wire tap order itself were signed appears to arise out of his reliance on
unsigned copies that were provided to him. Since the wiretap application was
examined and determined to be valid by this court on direct appeal, Lawrence’s
counsel was not ineffective for failing to challenge whether the supporting
affidavits and order were signed. See Jones v. Stotts , 59 F.3d 143, 147 (10th Cir.
1995) (“We conclude that because none of the issues Mr. Jones raised amounted
to error, counsel did not provide ineffective assistance.”)
Moreover, Lawrence has not demonstrated his trial counsel was ineffective
for failing to impeach a government witness about the unsigned affidavits. He
has failed to identify the government witness who should have been impeached,
when this unnamed individual allegedly committed perjury during the trial, and
what prejudice was suffered as a result of his attorney’s failure to question the
official about his failure to sign the affidavits.
The request for a certificate of appealability is DENIED and this appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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