F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 15 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-5146
(D.C. No. 97-CV-417-B)
JAMES DAVID THORNBRUGH, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , 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)(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This order and judgment is not binding precedent, except under the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.
Petitioner-defendant James David Thornbrugh seeks a certificate of
appealability to obtain review by this court of the district court’s denial of his
motion to vacate his sentence brought pursuant to 28 U.S.C. § 2255. Because he
has failed to make a substantial showing of the denial of a constitutional right, we
deny the certificate and dismiss the appeal.
Defendant was convicted of three counts of armed bank robbery under
18 U.S.C. §§ 2113(a) and (d) and three related counts of using and carrying a
firearm during or in relation to a crime of violence under 28 U.S.C. § 924(c)(1).
The charges arose from the robberies of three Tulsa financial institutions by
defendant and an accomplice, Gary Sewell, who testified against defendant at
trial.
Mr. Thornbrugh was sentenced as a career offender. In his first appeal,
the conviction was affirmed, see United States v. Thornbrugh , 962 F.2d 1438
(10th Cir. 1992), and the matter remanded for resentencing in light of United
States v. Abreu , 962 F.2d 1447 (10th Cir. 1992) (en banc). The Supreme Court
reversed our sentencing decision, see United States v. Abreu , 508 U.S. 935
(1993), which ultimately resulted in another remand to the district court and a
final sentence of seventy months on each of the three bank robbery convictions
plus mandatory sentences totaling 540 months on the § 924(c) convictions.
On appeal Mr. Thornbrugh challenged the sentencing enhancements, and we
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affirmed. See United States v. Thornbrugh , No. 94-5118, 1995 WL 216924 (10th
Cir. April 12, 1995) (unpublished order and judgment).
Mr. Thornbrugh then commenced this action pursuant to 28 U.S.C. § 2255,
raising issues of government misconduct and ineffective assistance of trial and
appellate counsel. By amendment he added claims that the district court lacked
authority to resentence him because the government had failed to seek a stay of
the sentence and that his obligation to pay restitution had expired and therefore
the assessment could not be collected.
Petitioner raised several issues under the rubric of government misconduct.
Two claims, that the government furnished incorrect information as to the chase
scene where a car switch occurred (thereby allegedly precluding counsel from
locating material eyewitnesses) and that Special Agent Jo Deathridge submitted
conflicting affidavits describing the condition of the vehicle, were decided
adversely to Mr. Thornbrugh on direct appeal. See United States v. Thornbrugh ,
962 F.2d at 1444-45. A defendant may not raise issues previously decided on
direct appeal by way of a § 2255 motion. See United States v. Cox , 83 F.3d 336,
342 (10th Cir. 1996).
The balance of the alleged misconduct consisted of the government’s
failure to provide police reports or portions thereof to defense counsel; improper
release of information about defendant to the news media, which provided jurors
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with knowledge of the crimes; perjury by Mr. Sewell, both about his agreement
with the government and about other matters surrounding the crimes and which
the government knew to be perjurious; and perjury by Special Agent Deathridge
as to the condition of the license tags on Mr. Thornbrugh’s truck. These issues
were not raised on direct appeal.
In order to raise issues by a § 2255 motion that should have been raised on
direct appeal but were not, a defendant must show cause for his failure to do so
and actual prejudice resulting from the errors he complains of. See United States
v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (holding § 2255 motions not
available to test legality of matters that should have been raised on direct appeal).
One method of establishing the requisite cause, and the one at issue here, is the
alleged ineffective assistance of counsel. See United States v. Cook , 45 F.3d 388,
392 (10th Cir. 1995) (holding defendant may establish cause for procedural
default by showing ineffective assistance of counsel) (citing Murray v. Carrier ,
477 U.S. 478, 488 (1986).
Mr. Thornbrugh claimed his appellate counsel failed to raise these issues on
direct appeal. The district court therefore considered the merits of the omitted
issues. See Cook , 45 F.3d at 393 (“If the omitted issue is without merit, counsel’s
failure to raise it does not constitute constitutionally ineffective assistance of
counsel.”) (quotation omitted). The court examined the issues under this standard
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and found them to be without merit. Upon consideration of the rationale
expressed by the district court, we agree that Mr. Thornbrugh has failed to set
forth any meritorious issues. Counsel is not obligated to raise every nonfrivolous
issue on appeal. See id. at 394.
The district court also considered the question of whether Mr. Thornbrugh
had shown a fundamental miscarriage of justice probably resulting in the
conviction of one actually innocent. See Murray , 477 U.S. at 496. The inquiry to
determine if this is an extraordinary case resulting in such a miscarriage of justice
if the procedural bar is invoked involves three prongs: “(1) a constitutional
violation; (2) a probable effect on the jury’s determination; and (3) the conviction
of an innocent man.” Parks v. Reynolds , 958 F.2d 989, 995 (10th Cir. 1992).
Where no cause is shown for failure to raise his claims earlier, “the defendant
must show--at the threshold--both a constitutional violation and a colorable
showing of factual innocence.” Id.
We agree that Mr. Thornbrugh has failed to meet the first criteria, i.e.,
establishment of any constitutional violation by the government. Hence, the
miscarriage of justice exception is not met in this case and these claims remain
procedurally barred.
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Mr. Thornbrugh also claims his trial counsel was ineffective for failing to
investigate certain alibi witnesses, to call other witnesses at trial, and to
investigate the witnesses at the chase scene.
To establish ineffective assistance of counsel, a defendant must show both
that his attorney’s performance was deficient and that the deficient performance
was prejudicial. See Strickland v. Washington , 466 U.S. 668, 687 (1984). “When
a convicted defendant complains of the ineffectiveness of counsel’s assistance,
the defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” See id. at 687-88. To establish prejudice, he must
show the existence of a reasonable probability that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694.
Mr. Sewell was the only eyewitness who placed Mr. Thornbrugh at the
scene of the robberies. Defense counsel offered a number of alibi witnesses,
including Mr. Thornbrugh’s father, co-workers, employer and his employer’s
wife, to confirm his alibis for each of the robberies. See United States v.
Thornbrugh , 962 F.2d at 1441. The specific additional alibi witnesses
Mr. Thornbrugh wanted called allegedly would have corroborated his presence in
Kansas during one of the robberies. However, Mr. Thornbrugh’s father testified
he and his son were together in Coffeyville, Kansas, on the date in question, but
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admitted that Coffeyville was only about an hour and a half drive from Tulsa.
Thus, counsel’s decision not to pursue the testimony of these additional witnesses
was not, viewed at the time of counsel’s conduct, “outside the wide range of
professionally competent assistance.” See Strickland , 466 U.S. at 690.
The same is true of other witnesses (including cellmates and the girlfriend
of Mr. Sewell) who Mr. Thornbrugh believes should have been called to testify.
Mr. Thornbrugh concedes that one witness did testify that Mr. Sewell had stated
that Mr. Thornbrugh was not involved in the robberies. It is thus not
unreasonable that counsel may have determined the addition of other witnesses
would have been merely cumulative.
We have recognized that the decision whether or not to call witnesses is a
tactical one within the discretion of trial counsel. See Jackson v. Shanks 143 F.3d
1313, 1320 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998); Minner v. Kerby ,
30 F.3d 1311, 1317 (10th Cir. 1994). Mr. Thornbrugh has failed to demonstrate
that trial counsel’s judgment in this regard was unreasonable.
Finally, Mr. Thornbrugh’s claim that because of misinformation supplied
about the chase scene, trial counsel was unable to interview two allegedly
exculpatory eyewitnesses. This is the same claim raised earlier as part of the
government’s alleged misconduct, and, as previously noted, decided on direct
appeal. See United States v. Thornbrugh , 962 F.2d at 1444-45. In his brief on
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appeal, Mr. Thornbrugh does not separately address the claimed errors of
appellate counsel except with respect to counsel’s failure to raise the issue of
Special Agent Deathridge’s conflicting affidavits. Again, this issue was decided
adversely to Mr. Thornbrugh on direct appeal. See id.
Any other issues raised in district court but not addressed on appeal are
deemed waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7
(10th Cir. 1994) (issues not argued in brief on appeal considered abandoned).
Nor will we consider on appeal the “Declaration” attached to Mr. Thornbrugh’s
appellate brief because it was not presented to the district court. See Rhine v.
Boone , 182 F.3d 1153, 1154 (10th Cir. 1999) (citing Walker v. Mather (In re
Walker) , 959 F.2d 894, 896 (10th Cir. 1992)).
Accordingly, because we conclude that Mr. Thornbrugh has not made a
substantial showing of the denial of a constitutional right, we DENY his
application for a certificate of appealability and DISMISS his appeal. The
argument made in the supplement to his brief is moot in light of the court’s
decision in United States v. Singleton , 165 F.3d 1297 (10th Cir.) (en banc),
cert. denied, 119 S. Ct. 2371 (1999).
Entered for the Court
Wade Brorby
Circuit Judge
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