United States v. Bass

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 15 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-8049
(D. Ct. No. CV-180-D)
PETER BASS, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, MCKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Defendant brings this pro se appeal pursuant to 28 U.S.C. § 2255.
Defendant appeals the order of the district court denying defendant’s motion to
vacate, set aside, or correct defendant’s sentence, and therefore denying his
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
petition for a writ of habeas corpus under the provisions of 28 U.S.C. § 2255.
The district court further denied a certificate of appealability and refused to grant
defendant the right to appeal in forma pauperis.
In this appeal, the defendant seeks a certificate of appealability authorizing
him to appeal pursuant to the provisions of the Antiterrorism and Effective Death
Penalty Act (AEDPA). We decline to grant the certificate of appealability and
agree with the district court that defendant is not entitled to proceed in forma
pauperis.
In his § 2255 petition defendant claims that: (1) his sentence exceeds the
statutory maximum; (2) that he was not advised of the effects of revocation of
supervised release or of acceptance of the plea agreement; and (3) that he
received ineffective assistance of counsel. Defendant’s claims all arise out of
defendant’s arguments related to his understanding of the effects of the plea
agreement and the effects of revocation of supervised release. It appears to be
undisputed that during the plea negotiations there was a misunderstanding of the
parties with respect to the application of the career offender provisions of the
United States Sentencing Guidelines as they would be applied in defendant’s case.
The record is clear, however, that defendant was fully advised in his change of
plea hearing on September 18, 1995, as to the length of the minimum or maximum
sentence that could be imposed and that none of this colloquy was negated or
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invalidated by a later clarification of the applicability of the career offender
provisions. Defendant’s sentence of ten years imprisonment and eight years of
supervised release did not exceed the statutory maximum sentence. Defendant
was fully advised with respect to the statutory penalty. Further, the record makes
clear that defendant was advised in an addendum to the plea agreement that
supervised release would be imposed. Where the court failed to advise defendant
of the effects of revocation of supervised release, defendant must show that such
failure affected his substantial rights. Defendant has failed to make that showing.
Indeed, on this record defendant has failed to show in any way that he would not
have pleaded guilty had he been informed of the effects of supervised release.
The district court gave defendant an opportunity to withdraw his plea because of
the misunderstanding regarding the applicability of the career offender provisions
of the Sentencing Guidelines. Defendant chose not to withdraw his plea. This
record reveals no basis on which to determine that had the effects of revocation of
supervised release been explained to him, defendant would have refused to plead
guilty.
Defendant further appeals on the grounds that he was denied effective
assistance of counsel at both the trial level and on direct appeal where counsel
failed to properly inform defendant of the consequences of his guilty plea and
failed to raise this issue on direct appeal. It is well settled in this circuit that
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issues of ineffective assistance of trial or appellate counsel should not be raised
on direct appeal but should be raised in a § 2255 proceeding. Thus, we cannot
say that appellate counsel was ineffective for failing to raise the ineffectiveness
claim on direct appeal. After reviewing this record, we cannot say that either trial
counsel nor appellate counsel rendered ineffective assistance to defendant.
Defendant has failed to show that the performance of either attorney prejudiced
his defense. See Strickland v. Washington, 466 U.S. 668, 691 (1984).
Defendant’s claims with regard to ineffective assistance of counsel relate to the
alleged failure of counsel to object to or call attention to alleged Rule 11 errors
that occurred at the change of plea hearing and at the sentencing hearing. The
record fails to reveal that there were any substantial substantive errors that would
give rise to a claim of ineffective assistance in the conduct of the proceedings.
Further, defendant has failed to demonstrate that he would have insisted upon
going to trial or would have withdrawn his guilty plea but for the alleged
deficiencies of counsel. As noted above, defendant was given the opportunity to
withdraw his plea and to proceed to trial. The record is clear that after having
reviewed the presentence report, consulted with additional attorneys, and
consulted with his counsel of record, defendant elected to persist in his guilty
plea. Thus, we cannot say that the performance of trial counsel prejudiced
defendant’s defense. Further, because the allegations related to ineffectiveness of
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trial counsel failed to show prejudice to the defendant, we cannot say that
appellate counsel was deficient in failing to raise alleged Rule 11 violations on
appeal.
We find that defendant has failed to raise issues that are debatable among
jurists, that a court could resolve the issues differently, or that the questions
deserve further proceedings. United States v. Sistrunk, 111 F.3d 91, 91 (10th
Cir. 1997). We deny the certificate of appealability. We deny the motion to
proceed in forma pauperis pursuant to the provisions of Fed. R. App. P. 24. The
appeal is dismissed.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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