United States v. Stone ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 28 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-8111
(D.C. No. 97-CV-29-B)
MICHAEL RAYMOND STONE, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, 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. 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This order and judgment is not binding precedent, except under the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.
In July 1995, defendant was sentenced by the Wyoming federal court
to seventy months’ imprisonment for manufacturing and distributing
methamphetamine, and conspiring to possess with intent to distribute
methamphetamine. He registered no objection to the calculation of his criminal
history contained in the presentence report. He did not file a direct appeal. Nine
months after he was sentenced, he filed a motion to correct errors in his
presentence report. The district court denied that motion and this court affirmed,
noting that relief must be sought pursuant to 28 U.S.C. § 2255. See United States
v. Stone , No. 96-8039, 1996 WL 606311 (10th Cir. Oct. 23, 1996). Defendant
then filed a motion pursuant to § 2255 to correct his presentence report and
resentence him. The district court denied the motion. He now appeals the denial,
proceeding pro se. We deny issuance of a certificate of appealability and dismiss
the appeal.
Defendant’s failure to object to the presentence report at the sentencing
hearing will preclude him from raising the issue in a § 2255 motion, absent
a showing of cause and prejudice. See United States v. Frady, 456 U.S. 152,
167-68 (1982). Constitutionally ineffective assistance of counsel can satisfy the
cause and prejudice requirement. See United States v. Cook, 45 F.3d 388, 392
(10th Cir. 1995).
-2-
Defendant alleges his attorney rendered constitutionally ineffective
assistance by failing to object to the presentence report, which included
a conviction entered against him on a counseled guilty plea in Yuba County,
California. Three points were added to defendant’s criminal history score based
on the Yuba County case. He claims that the Yuba County charges were
ultimately dismissed and, therefore, could not be used to calculate his sentence
in the Wyoming case. Defendant cannot dispute that the Yuba County charges
were dismissed on November 16, 1995, four months after he was sentenced in
the Wyoming case.
Defendant relies on a document entitled “Disposition of Arrest and Court
Action” pertaining to the Yuba County charges to establish that he did not enter
a guilty plea to those charges, contrary to the findings in the presentence report.
He has also produced the November 1995 request and order for dismissal of the
Yuba County charges. Defendant has not produced the complete Yuba County
court file, however, and he has not denied that he entered a guilty plea to those
charges. Rather, he argues only that the documents he submitted fail to prove
he entered a counseled guilty plea.
To establish that counsel provided ineffective assistance, a defendant must
demonstrate both that his attorney’s representation was deficient and that the
attorney’s substandard performance prejudiced him. See Strickland v.
-3-
Washington, 466 U.S. 668, 687 (1984). Defendant has failed to meet this burden.
The two selected documents pertaining to the Yuba County charges are
insufficient to establish that those charges were dismissed prior to entry of
a guilty plea. Defendant has not established any error in the presentence report to
which his attorney should have objected. Moreover, he does not contend that he
told his counsel about this alleged error. Accordingly, he cannot fault his counsel
for failing to challenge the presentence report. Cf. United States v. King, 936
F.2d 477, 480 (10th Cir. 1991) (“An attorney’s failure to investigate cannot be
charged as a claim of ‘ineffective assistance of counsel’ when the essential and
foundational information required to trigger such an investigation is withheld
from the defendant’s attorney by the defendant himself.”) (quotation omitted).
Defendant also cannot fault his attorney for failing to foresee that the Yuba
County charges would be dismissed after the Wyoming case was concluded.
Defendant has failed to establish that his attorney’s performance was
constitutionally deficient.
To the extent defendant argues he may reopen his sentence on the ground
that his Yuba County conviction was subsequently set aside, see United States v.
Cox, 83 F.3d 336, 339 (10th Cir. 1996), we conclude that the grounds upon which
the Yuba County charges were dismissed do not warrant reopening his federal
sentence, see United States v. Hines, 133 F.3d 1360, 1363 (10th Cir. 1998) (court
-4-
must examine grounds upon which defendant’s sentence was set aside). Here, the
district court found that the Yuba County case was dismissed because defendant
was sentenced to prison in this case. Accordingly, the Yuba County charges were
not dismissed “for reasons related to constitutional invalidity, innocence, or errors
of law,” id. at 1366, and it was appropriate to include the Yuba County charges in
the calculation of his federal sentence.
Defendant’s request for a certificate of appealability is denied. The appeal
is DISMISSED.
Entered for the Court
Michael R. Murphy
Circuit Judge
-5-