F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 22 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1075
(D. Colo.)
STANLEY DOUGLAS POWELL, (D.Ct. No. 99-D-414)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Stanley D. Powell, a federal inmate appearing pro se, appeals the
*
This order and judgment is not binding precedent except under the doctrines of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.
district court’s decision dismissing his motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255. We deny Mr. Powell’s request for a certificate
of appealability and dismiss his appeal.
Mr. Powell was convicted of four counts of possession with intent to
distribute cocaine base. Three of the four distribution counts included aiding and
abetting charges pursuant to 18 U.S.C. § 2. We affirmed Mr. Powell’s conviction
on direct appeal. See United States v. Powell, 166 F.3d 349, 1998 WL 794973
(10th Cir. Nov. 16, 1998) (unpublished opinion). In a related decision, we also
affirmed civil forfeiture of $11,557 as proceeds of Mr. Powell’s drug offenses.
See United States v. $11,557.22 in U.S. Currency, 198 F.3d 260, 1999 WL 820230
(10th Cir. Oct. 14, 1999) (unpublished opinion).
Following his direct appeal, Mr. Powell filed his § 2255 motion, assigning
three grounds for error. Specifically, Mr. Powell alleged: 1) he received
insufficient notice of the charges against him because the indictment failed to
include a charge of distribution of drugs; 2) the indictment was defective because
it included the charge of aiding and abetting, but did not contain a sufficient
statement of the facts supporting such a charge; and 3) his counsel provided
ineffective assistance of counsel for several reasons.
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In an exceedingly comprehensive order, the district court dismissed the
motion. Applying the controlling Supreme Court and Tenth Circuit authority, the
district court determined Mr. Powell failed to raise the first two claims in his
direct appeal, or make a showing of cause and prejudice or miscarriage of justice,
which is required to overcome a presumption of dismissal when issues are raised
for the first time on collateral attack. For that reason, the district court
determined Mr. Powell’s first two claims were procedurally barred. As to the
ineffective assistance of counsel argument, the district court performed an
exhaustive discussion of the several claims underlying Mr. Powell’s argument and
determined Mr. Powell failed to show his counsel’s performance was either
constitutionally deficient or that the alleged deficient performance prejudiced
him.
On appeal, Mr. Powell raises the same issues addressed by the district
court. We begin with our standard of review. “[We] review the district court’s
legal rulings on a § 2255 motion de novo and its findings of fact for clear error.”
United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998) (citing United States
v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Ineffective assistance of counsel
claims involve mixed questions of law and fact, which we review de novo. See
United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). In order for Mr.
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Powell to obtain a certificate of appealability, he must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
Applying these standards, we have carefully reviewed the pleadings and
record on appeal. For the purpose of judicial economy, we will not duplicate the
district court’s thorough discussion and correct determination of the same issues
presented to this court on appeal, other than to conclude Mr. Powell fails to make
a substantial showing of the denial of a constitutional right. Accordingly, we
deny Mr. Powell a certificate of appealability for substantially the same reasons
set forth in the district court’s February 8, 2000 Order of Dismissal, and thereby
DISMISS this appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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