F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 18 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff -Appellee, No. 96-3162
(D.C. No. 94-CR-10043)
vs. (D. Kan.)
GEORGE HOWARD,
Defendant -Appellant.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and KELLY, Circuit Judges.**
Mr. Howard appeals from the denial of his 28 U.S.C. § 2255 motion to vacate
sentence and request for a new trial. He contends that he did not receive a fair trial due to
ineffective assistance of counsel. After an evidentiary hearing, the district court denied
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
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); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
relief and a certificate of appealability, 28 U.S.C. § 2253(c)(1)(B). We GRANT Mr.
Howard a certificate of appealability and affirm.
Convicted by a jury of three counts of distribution of crack cocaine, 21 U.S.C. §
841(a)(1) & 18 U.S.C. § 2, one count which occurred within 1,000 feet of a university, 21
U.S.C. § 860(a), Mr. George was sentenced by the court to 168 months imprisonment.
His defense at trial was entrapment. We review a claim of ineffective assistance of
counsel de novo as a mixed question of law and fact, however we are bound by the
district court’s findings of fact unless they are clearly erroneous. Brewer v. Reynolds, 51
F.3d 1519, 1523 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996).
Mr. Howard contends that counsel who represented him during the criminal trial
and sentencing did next to nothing to earn his $3,000 fee. In this § 2255 proceeding, Mr.
Howard is represented by different counsel. Contrary to Mr. Howard’s argument on
appeal of the denial of the § 2255 motion, the district court found that trial counsel (1)
spoke to seven or eight witnesses, (2) had a witness prepared to testify concerning two
firearms counts (that were later dismissed along with a heroin distribution count); (3)
attempted to locate the government’s informant (Mr. Dunn), but was unable to do so; (4)
talked to Mr. Howard several times in person about his case; (5) brought up the subject of
plea negotiations, but was rebuffed by Mr. Howard; (6) requested an instruction on
entrapment; and (7) did not call Mr. Howard’s girlfriend as a witness at trial given her
possible involvement in narcotics offenses and the damage this could have done to Mr.
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Howard’s entrapment defense. Against this backdrop of factual findings, the district
court resolved the ineffectiveness claim based on lack of a showing of prejudice, i.e. Mr.
Howard had not proven a reasonable probability that, but for the remaining alleged
unprofessional errors, the result of the trial and sentencing would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
We cannot say that the district court’s findings are clearly erroneous. Taking those
findings and viewing the prejudice element against a backdrop of the very strong
evidence of guilt and predisposition, we do not think that the ineffectiveness claim is
sustainable. The government had a strong case against Mr. Howard based upon repeated
drug transactions and his taped phone conversations. Those conversations suggest an
in-depth knowledge of the drug trade and voluntary distribution. To be sure, the
allegation that Mr. Howard was misinformed by trial counsel of the potential maximum
sentence (70 months vs. 168 months actually received) is troubling given that such an
estimate may have had a bearing on whether to pursue plea negotiations. However, there
is no constitutional right to a plea agreement on one’s own terms, Martinez v. Romero,
626 F.2d 807, 809 (10th Cir.), cert. denied, 449 U.S. 1019 (1980), and the record is
devoid of any evidence suggesting a plea resulting in a more favorable disposition would
have been offered after three of the six counts were dropped. Likewise, keeping in mind
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that Mr. Howard had the burden of proof on his ineffectiveness claim, Strickland, 466
U.S. at 694, we are not convinced that the results might have been different had
unspecified mitigation witnesses been summoned.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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United States v. Howard
Combined Opinion