Thompson v. United States ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 25 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v. No. 00-3004
(D.C. Nos. CR-95-20066-01 &
KENNETH L. THOMPSON, CV-98-3256-GTV)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, ANDERSON, and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Kenneth L. Thompson appeals from an order of the district court
denying his motion filed pursuant to 28 U.S.C. § 2255 . We affirm.
*
This order and judgment is not binding precedent, except under the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.
Thompson was convicted by a jury of two counts of possession of
methamphetamine with intent to distribute. His conviction was affirmed on
appeal. Although denying Thompson’s § 2255 motion, the district court granted a
certificate of appealability on the issues of whether Thompson was denied
effective assistance of counsel and whether the court erred in denying his motion
without an evidentiary hearing.
“[W]e review the district court’s legal rulings on a § 2255 motion de novo
and its findings of fact for clear error.” United States v. Pearce , 146 F.3d 771,
774 (10th Cir. 1998). We will grant relief if we determine that “the judgment was
rendered without jurisdiction, or that the sentence imposed was not authorized by
law or otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255.
To establish ineffective assistance of counsel, Thompson must demonstrate
both that his attorney’s representation was deficient and that he was prejudiced by
that deficiency. See Strickland v. Washington , 466 U.S. 668, 687 (1984). There
is a strong presumption that counsel provided effective assistance. See id. at 689 .
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Thompson posits that counsel erred by not requesting a lesser included
offense instruction. 1
We use a four-part test to determine whether a lesser
included offense instruction should have been given, looking at whether: “(1)
there was a proper request; (2) the lesser included offense includes some but not
all of the elements of the offense charged; (3) the elements differentiating the two
offenses are in dispute; and (4) a jury could rationally convict the defendant of
the lesser offense and acquit him of the greater offense.” United States v.
McGuire , 200 F.3d 668, 673 (10th Cir. 1999) (quotation omitted).
Upon review of the materials presented to us, we agree with the district
court that Thompson cannot make the required showing. Even if we were to
accept Thompson’s allegations regarding counsel’s alleged errors as true,
Thompson cannot establish prejudice. See Fox v. Ward , 200 F.3d 1286, 1295
(10th Cir.) (“An ineffective assistance claim may be resolved on either
performance or prejudice grounds alone.”), cert. denied, ___ S. Ct. ___, 2000 WL
1281480 (U.S. Oct. 10, 2000) (No. 00-5995). Thompson cannot meet the fourth
prong of showing that a rational jury could have found him guilty only of
1
In his motion to the district court, Thompson also alleged ineffective
assistance based on counsel’s failure to request a jury instruction on the
voluntariness of his self-incriminating statement and misrepresentation to him
regarding the offer of a plea bargain during jury negotiations. Thompson does not
advance these issues on appeal and we do not address them. See State Farm Fire
& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
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possession of methamphetamine and not intent to distribute. The evidence before
the jury was such that it could not rationally have convicted him of the lesser
offense of possession.
Thompson argues that the district court erred by not holding an evidentiary
hearing. An evidentiary hearing is not required if “the motion and files and
records of the case conclusively show that the prisoner is entitled to no relief.”
United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996) (quotations omitted).
Although the proferred affidavits set forth disputed facts which could bring into
question whether counsel’s representation was deficient, these facts are not
material because Thompson cannot establish the second Strickland prong. The
district court did not err in not holding an evidentiary hearing.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED for substantially the reasons stated by the district court in its order
of July 14, 1999.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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