F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-6018
(D.C. No. 97-CV-657)
CHARLES EDWARD MCINTYRE, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , BALDOCK , and HENRY , 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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 Charles Edward McIntyre, a federal inmate appearing pro se,
seeks a certificate of appealability to appeal the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We
conclude defendant has not made a substantial showing of the denial of a
constitutional right, as required by 28 U.S.C. § 2253(c). Accordingly, we deny
his request for a certificate of appealability and dismiss the appeal.
Defendant was convicted of conspiracy to distribute cocaine and cocaine
base in violation of 21 U.S.C. § 846, possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), and traveling and causing travel
in interstate commerce to facilitate the distribution and possession of cocaine and
cocaine base with intent to distribute in violation of 18 U.S.C. § 1952(a)(3) and
18 U.S.C. § 2. He was sentenced to life imprisonment on two of the counts, to
480 months on one of the possession counts, and to 60 months on the remaining
counts. Defendant appealed his conviction, raising 25 allegations of error. See
United States v. McIntyre , 997 F.2d 687 (10th Cir. 1993). His conviction was
affirmed. See id.
Defendant filed this § 2255 petition in 1997 alleging ineffective assistance
of counsel. During opening statement and closing argument, defendant’s trial
counsel admitted that defendant had been stopped at an airport with cash in his
possession, that during a subsequent airport stop, police had found glass beakers
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similar to the kind used to cook crack cocaine in defendant’s luggage, and that
defendant was later arrested in a hotel room with cocaine in his underwear.
Defendant contends that, by these admissions, his counsel conceded his guilt,
depriving him of effective assistance of counsel, and that prejudice should be
presumed from such conduct. The district court rejected this argument,
concluding that defendant’s claim of ineffective assistance of counsel fails under
Strickland v. Washington , 466 U.S. 668 (1984), because his counsel made a
strategic decision to portray defendant as guilty of only simple possession of
cocaine for his personal use and to show that the evidence was insufficient to
support the government’s charges that defendant was involved in a major drug
conspiracy.
We have thoroughly reviewed defendant’s brief, his application for a
certificate of appealability, the district court’s order, and the entire record before
us. We conclude that defendant has failed to demonstrate any prejudice arising
from his trial counsel’s alleged errors. See Strickland 466 U.S. at 688, 692;
United States v. Williamson , 53 F.3d 1500, 1511-12 (10th Cir. 1995) (concluding
that trial counsel’s strategy of conceding during closing argument defendant’s
guilt with respect to lesser drug counts, and denying involvement with the more
serious conspiracy counts did not constitute ineffective assistance of counsel).
The district court’s order denying the § 2255 motion is not debatable, reasonably
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subject to a different outcome on appeal, or otherwise deserving of further
proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983).
Accordingly, because we conclude that defendant has not made a substantial
showing of the denial of a constitutional right, we DENY defendant’s application
for a certificate of appealability and DISMISS this appeal.
The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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