F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 18 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-3293
(D.C. Nos. 96-CV-3114 &
BURLON R. DAVIS, 89-CR-20081)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , BARRETT , and BRISCOE , 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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Defendant Burlon R. Davis appeals from the denial of his motion for
post-conviction relief under 28 U.S.C. § 2255. See United States v. Davis , 939
F. Supp. 810 (D. Kan. 1996). We exercise jurisdiction under 28 U.S.C. § 1291 1
and affirm.
The factual and procedural background is detailed in the district court’s
opinion and will not be repeated here. Defendant challenged his conviction for
several drug trafficking offenses on the grounds of ineffective assistance of
counsel and unconstitutional jury impanelment. The district court held defendant
had not satisfied either the deficient-performance or prejudice requirements for
his ineffective assistance claims, see generally Strickland v. Washington , 466
U.S. 668, 686-87 (1984), and did not establish any constitutional impropriety in
connection with the selection of his jury.
On appeal, defendant raises nine issues. He contends counsel should have
been found ineffective for (1) failing to investigate and subpoena several
witnesses; (2) failing to interview defendant to discover and present the defense;
(3) failing to cross-examine codefendants Dana Nelson and William Nelson Sr.;
1
The district court denied a certificate of appealability, a prerequisite to
appeal under the then newly enacted Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). However, “since that time, . . . we have held that § 2255
movants who [like defendant] filed their applications with the district court prior
to AEDPA’s effective date need not obtain a certificate of appealability to
proceed in this court.” United States v. Alvarez , 137 F.3d 1249, 1250 n.2 (10th
Cir. 1998).
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(4) failing to obtain an expert witness to take a voice exemplar for comparison
with voices on drug transaction tapes; (5) failing to object to admission of letters
seized from defendant on the ground that his authorship of the letters was not
proven and failing to present evidence to that effect; (6) failing to challenge the
impaneling of an all-white jury; and (7) overall inadequate performance. He also
argues the district court erred in holding that (8) his jury was constitutionally
selected and impaneled and (9) an evidentiary hearing was not warranted. Upon
review of the post-conviction record and the transcript of defendant’s criminal
trial, we affirm.
With respect to the issue of jury panel selection, and most of defendant’s
ineffective assistance claims, we have nothing to add to the district court’s
analysis. However, we note that defendant’s sustained insistence on his right to
an evidentiary hearing has special import with respect to certain disputed
allegations of counsel (mis)conduct which, involving matters outside the trial
process, may not have been “conclusively” resolvable on “the files and records of
the case” without a hearing pursuant to § 2255. See Machibroda v. United States ,
368 U.S. 487, 494-95 (1962) (hearing necessary to resolve factual disputes which
“related primarily to purported occurrences outside the courtroom and upon which
the record could, therefore, cast no real light”); Moore v. United States , 950 F.2d
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656, 661 (10th Cir. 1991) (hearing necessary when “factual disputes and
inconsistencies beyond the record exist”).
To obviate this concern, we do not reach the extra-record facts regarding
counsel’s conduct found by the district court. Instead, based on our review of the
trial transcript, we agree with the district court’s alternate conclusion that the
government’s case against defendant was overwhelming, and, thus, “[d]efendant
has simply not met his burden of showing ‘that the decision reached would
reasonably likely have been different absent the alleged errors.’” Davis , 939
F. Supp. at 817 (quoting Strickland , 466 U.S. at 696). Accordingly, on this
lack-of-prejudice rationale, we can confidently say in accord with § 2255 that the
“files and records of the case of the case” do “conclusively show that the
[defendant] is entitled to no relief.”
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. Defendant’s motion for transcripts and motion for stay are
denied. Defendant’s motion for reimbursement of the appellate filing fee--paid
on threat of dismissal pursuant to a subsequently vacated assessment order, and
contrary to defendant’s extant in forma pauperis status--is granted. The district
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court is hereby directed to refund the fee to defendant’s prison account.
Defendant’s renewed motion to proceed in forma pauperis is, accordingly, denied
as moot. The mandate shall issue forthwith
Entered for the Court
Wade Brorby
Circuit Judge
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