UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-6151
v. W.D. Oklahoma
GALA SUE HOOD, also known as Gala (D.C. No. CIV-96-459-C)
Sue Harris, Sue McGowan, Janice Hood,
Gala Sue Coddington, Gala Coddington,
Gala Sue Sevall, Sue McGowan, Gala
McGowan, Gayla Sue Hood, Gala Sue
Hood, Dale Goodson, Gala Sue
Caddington, Sue Caddington,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, LOGAN, 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
*
This order and judgment is not binding precedent, except under the doctrines of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.
appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
Gala Sue Hood appeals the district court’s summary dismissal of her pro se motion
to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. She contends
that the district court erred in finding that she was procedurally barred from collaterally
attacking her sentence. For the reasons stated below, we deny the certificate of
appealability and dismiss the appeal.
On July 14, 1994, Hood pled guilty to conspiracy to distribute methamphetamine
in violation of 21 U.S.C. 841(a)(1). The terms of her plea agreement limited her drug
quantity involvement to 400 -700 grams of methamphetamine. Although the Presentence
Investigation Report noted greater quantities, the actual sentence calculation was based on
the agreed maximum.1 On November 28, 1994, the district court sentenced Hood at the
low end of the applicable range and advised her of her right to appeal. No appeal was
taken.
The guidelines provide a base offense level of 28 for trafficking in 400-700 grams
1
of methamphetamine. USSG §2D1.1. In her brief to us, Hood acknowledges that, in
connection with her plea agreement, she admitted purchasing one ounce (28.35 grams) of
methamphetamine a week, when available, for approximately seven months. Appellant’s
Br., at p. 6 con’t. According to our calculations, this admission (28.35 grams x 28 weeks)
translates to an involvement in the distribution of a maximum of 793.80 grams of
methamphetamine. That admitted quantity would qualify for a higher offense level than
she received under her agreement.
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On March 22, 1996, Hood filed this action seeking relief from her sentence. She
contended that the district court erred in imposing a sentence that was based upon a
greater drug quantity than was reasonably foreseeable under USSG §2D1.1(A)(3)(c).2
The district court ruled that she was procedurally barred and dismissed the action.
We review de novo the district court’s ruling on legal issues in a § 2255 motion.
See United States v. Cook, 49 F.3d 664, 665 (10th Cir. 1995). As the district court
correctly noted, Hood may not use a § 2255 motion to test the legality of matters which
should have been raised on direct appeal. United States v. Allen, 16 F.3d 377, 378 (10th
Cir. 1994). Only if she can show “cause and prejudice,” may Hood collaterally attack her
sentence on grounds which she could have raised on direct appeal. Id.
In her motion below, Hood made no attempt to show cause for her failure to raise
her present claim on direct appeal. In her brief to us, Hood makes a general statement
that a direct appeal was not perfected through a misunderstanding with her counsel.
However, Hood points to no particular deficiency of counsel in this misunderstanding.
Moreover, Hood’s present claim of error is wholly unsupported by the record which
clearly demonstrates that only the stipulated drug quantity was used for sentencing
2
Hood also contended that an extraordinary physical impairment, unknown at the
time of sentencing, entitles her to a downward departure from the guideline range
pursuant to USSG §5H1.4. Section 2255 permits a prisoner to collaterally attack a
sentence which was imposed in violation of law, or in the absence of jurisdiction, or in
excess of the maximum authorized by law. The deterioration of a prisoner’s physical
condition following sentencing is not a basis for bringing a § 2255 motion.
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purposes. Under the circumstances, we cannot find that her counsel’s failure to appeal
constituted ineffectiveness. Conclusory allegations of ineffective assistance of counsel do
not warrant relief. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
Hood has failed to make a substantial showing of the denial of a federal right
required for the issuance of a certificate of appealability. It is therefore ordered that
1) Hood’s application for a certificate of appealability is DENIED.
2) The appeal is DISMISSED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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