Dwayne A. Etheridge v. United States ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1783
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Dwayne Anthony Etheridge, *
*
Petitioner-Appellant, *
*
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
United States of America, *
*
Respondent-Appellee, *
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Submitted: December 15, 2000
Filed: February 15, 2001
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Before MCMILLIAN and MURPHY, Circuit Judges, and BOGUE,1 District Judge.
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MURPHY, Circuit Judge.
Dwayne Etheridge was convicted by a jury of conspiracy to possess and
distribute cocaine and of possession with intent to distribute cocaine, and he was
sentenced to 90 months. On direct appeal the judgment was affirmed. See United
States v. Etheridge, 168 F.3d 495, 1998 WL 792467 (8th Cir. Nov. 17, 1998) (Table).
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
Now before the court is his appeal from the denial by the district court2 of his petition
to set aside his convictions under 28 U.S.C. § 2255. Etheridge claimed ineffective
assistance of counsel and due process violations and asked in the alternative for
resentencing. A certificate of appealability was granted by the district court on the
ineffective assistance of counsel claims he had raised. We affirm.
I.
Dwayne Etheridge and Valeria Newsome were indicted for conspiracy to
possess and distribute cocaine, in violation of 21 U.S.C. § 846, and possession with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
Newsome entered into a plea agreement and testified at trial that she had a long history
of drug trafficking and was engaged in drug dealing with Etheridge. She said that
Etheridge had recruited her to go to Arizona and ship drugs back to Minnesota. The
drugs were obtained from a source known as Jesus, who was an acquaintance of
Newsome’s husband, DJ Newsome, and her brother, Kevin Moore. According to
Newsome’s testimony, she picked up drugs and mailed them to a family member in
Minnesota on numerous occasions. Etheridge would then telephone that family
member and pick up the drugs. Etheridge paid the source directly and wired money to
Newsome for her services. Deputy Brad Erickson testified that controlled deliveries
had been made after postal workers discovered packages of cocaine in the mail;
Tanisha Willis was found at one location. Willis reported that a man with the nickname
“D” had recruited her to receive packages, and she later identified Etheridge as “D”
from a photo lineup. When deputies searched Etheridge’s apartment with a search
warrant, they found a pager, a cellular phone, false W-2 tax and wage statements,
phone and pager records, and an address book linking him to the drug conspiracy.
2
The Honorable Paul A. Magnuson, Chief United States District Judge for the
District of Minnesota.
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Etheridge’s theory of defense at trial was that it was Newsome who shipped the
drugs to her relatives and that he was merely a family friend calling to check on Willis’
sick child and innocently present where the drugs were delivered. On cross
examination of Newsome, Etheridge’s attorney attempted to establish that she was the
leader of the conspiracy and that she was lying to fulfill her plea bargain. Newsome
admitted at trial that her husband had had a long history of dealing drugs and that she
had also mailed drugs back to family members in Minnesota before she ever met
Etheridge. She testified that her brother set up the deals because Etheridge did not
know the source. Newsome also admitted that under her plea agreement she would
receive a reduced sentence for her testimony, that her other family members were
subject to indictment, and that she realized that her testimony could subject her brother
Kevin Moore to prosecution.
After Etheridge was convicted on both counts, his attorney filed a motion
requesting a sentencing hearing on whether he should be given a two level enhancement
for being a leader of the conspiracy. At the sentencing hearing, Etheridge’s attorney
advised the court that an evidentiary hearing would not be necessary. He argued that
the trial evidence had established that Newsome was the leader. He pointed to
evidence that she had sent drugs to her brother and daughter before she met Etheridge,
that she sent drugs to her daughter on September 6 without Etheridge’s knowledge, that
it was her husband who had the source, and that she had established a distribution
structure before Etheridge was involved. The district court found that Etheridge was
a leader and applied a two level enhancement. The court concluded, however, that
Etheridge’s Criminal History Category of III was overstated in the Presentence
Investigation Report he reduced it to Category II. The resulting guideline range was
87 to 108 months, and the court sentenced him to 90 months of imprisonment, four
years of supervised release, and $200 in special assessments.
In his § 2255 petition, Etheridge sought vacation of his convictions or
resentencing without the two level enhancement or after an evidentiary hearing. He
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claimed that his Sixth Amendment right to effective assistance of counsel was violated
because his attorney failed to challenge the search warrant and failed to request a
hearing under Franks v. Delaware, 438 U.S. 154 (1978), failed to request a buyer-seller
instruction, and improperly waived an evidentiary hearing at sentencing. Etheridge also
claimed his due process rights were violated because the government purchased the
testimony of his coconspirators, basing this claim on the original Tenth Circuit panel
decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d en banc,
165 F.3d 1297(1999).
The district court denied the petition without holding an evidentiary hearing. It
pointed out that Etheridge’s counsel had challenged the search warrant by bringing a
motion to suppress and arguing its invalidity on appeal. The court also held that the
Franks claim lacked merit because the standard of “reckless disregard” could not be
met. A buyer-seller instruction would have undermined the defense theory that
Etheridge was innocent and merely present at the locations to which the drugs were
mailed. An evidentiary hearing was not needed because the court already knew from
the trial evidence about Newsome’s role in the trafficking and there was sufficient
evidence that Etheridge was a leader. Finally, the court noted that the Singleton theory
was foreclosed by United States v. Albanese, 195 F.3d 389, 394 (8th Cir. 1999). The
court granted Etheridge a certificate of appealability only on his ineffective assistance
of counsel claims.
On appeal from the denial of his petition, Etheridge argues that the district court
erred by not holding an evidentiary hearing before denying the petition and that his
counsel was ineffective at trial and on direct appeal because he failed to go forward
with an evidentiary hearing at sentencing, did not adequately cross examine Newsome
about her plea agreement, allowed the trial to be conducted in a “choppy and sporadic
nature,” and declined to address Singleton at the appellate argument. Etheridge also
attempts to argue prosecutorial misconduct based on the alleged incomplete disclosure
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of Newsome’s plea agreement.3 The government argues that Etheridge was not
prejudiced by the lack of an evidentiary hearing at sentencing because the district court
already knew about Newsome’s drug activity and that the other claims are not
reviewable because the claim of prosecutorial misconduct is not covered in the
certificate of appealability and some of his ineffective assistance of counsel claims were
not presented to the district court.
II.
The district court granted a certificate of appealability on the question of whether
Etheridge was denied effective assistance of counsel. Those issues presented to the
district court were Etheridge’s claims that his attorney failed to challenge the validity
of the search warrant or to request a Franks hearing, failed to request a buyer seller
instruction, and improperly waived an evidentiary hearing at sentencing. In his
appellate briefs, Etheridge only addressed counsel’s failure to conduct an evidentiary
hearing at sentencing. He did not discuss the other three claims of ineffective
3
After the initial appellate briefs were filed, Etheridge moved to supplement the
record to introduce an affidavit of Newsome. In this affidavit she states that the
prosecutor promised he would not bring charges against her relatives if she testified
against Etheridge. The government responds that the affidavit addresses claims not
presented to the district court and is beyond the certificate of appealability. We deny
the motion to supplement. See Fields v. United States, 201 F.3d 1025, 1026 n.2 (8th
Cir. 2000); Mulvaney v. Rush, 487 F.2d 684, 687 (3d Cir. 1973); see also United
States. v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
Etheridge also argues that an evidentiary hearing should have been conducted
to question Newsome about her plea agreement and about why no one in her family had
been prosecuted. We decline to address this argument because it was not presented to
the district court, see United States v. Nelson, 109 F.3d 1323, 1325 (8th Cir. 1997), but
we note elsewhere that there was much evidence at trial about Newsome and her plea
agreement.
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assistance. Claims not argued in the briefs are deemed abandoned on appeal. See
Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740-41 (8th Cir. 1985).
Moreover, Etheridge has conceded that those “issues [are] not presented on this
appeal.” Appellant’s Reply Brief at 1. The only issue presented to the district court
which has been certified and briefed on appeal was whether counsel was ineffective for
not conducting an evidentiary hearing at sentencing. This is the only issue we need
address.
Etheridge also raises issues in his briefs that were neither certified for appeal nor
presented to the district court. He now argues prosecutorial misconduct and
ineffectiveness of counsel because he did not adequately cross examine Newsome
about her plea agreement, refused to address inquiries at oral argument about the
possible applicability of Singleton, and allowed the trial to be conducted in a “choppy
and sporadic nature.” Issues not presented to the district court and not within the scope
of the certificate of appealability are not properly before this court and will not be
addressed. See Nelson, 109 F.3d at 1325; Fields, 201 F.3d at 1026 n.2.
On the ineffective assistance claim that was certified, we review the district
court’s conclusions of law de novo, its findings of fact for clear error, and its denial of
an evidentiary hearing for an abuse of discretion. See Tokar v. Bowersox, 198 F.3d
1039, 1045 (8th Cir. 1999); Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996).
To prevail Etheridge must show (1) that his attorney’s performance fell below a
professional objective standard of reasonableness; and (2) that he was prejudiced. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). In assessing whether counsel’s
performance was reasonable, we look at prevailing professional norms and “consider[]
all the circumstances. Id. at 688. To establish prejudice, Etheridge must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id at 694.
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Etheridge claims that if a sentencing hearing had been conducted, evidence that
Newsome was the leader of the conspiracy would have been presented and as a result
he would not have received a two level sentence enhancement under U.S.S.G. § 3B1.1.
According to Etheridge, a hearing would have revealed that he did not recruit Roger
Moore or Tanisha Willis, that Newsome and her husband both had a long history of
selling drugs, that the drugs came from her husband’s contact, that she mailed drugs to
her family members numerous times before she met Etheridge, and that she also stole
part of the cocaine and sent it to her daughter without Etheridge’s knowledge. The
government responds that the evidence Etheridge claims would have been elicited had
already been heard by the district court at trial.
On direct appeal, Etheridge argued that the district court improperly assessed a
two level enhancement for organizing the conspiracy. See Etheridge, 1998 WL 792467at *1. We affirmed the enhancement, pointing out that the evidence showed he
recruited people to mail and receive drugs and he instructed accomplices on how and
where to deliver the drugs. See id. For this reason we need not review Etheridge’s
argument at this stage. See United States v. Shabazz, 657 F.2d 189, 190 (8th Cir.
1981). Even if review were not precluded, however, Etheridge has not shown that he
was prejudiced by his counsel’s performance. See DeRoo v. United States, 223 F.3d
919, 925 (8th Cir. 2000).
At the sentencing proceeding, Etheridge’s attorney reminded the court about the
evidence presented at trial: Newsome sent drugs to her brother and daughter before she
met Etheridge, on September 6, 1997 she sent drugs to her daughter without
Etheridge’s knowledge, the source was her husband’s, and she had established a
distribution structure before Etheridge was involved. The district court indicated that
it was fully aware of this evidence, that there was substantial evidence that Etheridge
was a leader in the conspiracy because he arranged for pickups and deliveries, mailed
the money, and told Newsome where to mail the drugs. Since most of the evidence
Etheridge claims would have been uncovered by an evidentiary hearing was highlighted
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by his attorney and already known by the court, he cannot show a reasonable
probability that he would not have received the enhancement. He has not shown
prejudice or that his Sixth Amendment right to the effective assistance of counsel was
violated or that the district court erred by not holding an evidentiary hearing on his §
2255 petition.
For these reasons, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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