United States v. Dwyer

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 26 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-2246
(D. N.M.)
ORVILLE DWYER, (D.Ct. No. CIV-99-394-SC/LFG)

Defendant-Appellant.
____________________________

ORDER AND JUDGMENT *

Before SEYMOUR, McKAY, and BRORBY, 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 Orville Dwyer, 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This order and judgment is not binding precedent except under the doctrines of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. Dwyer’s request for a certificate

of appealability and dismiss his appeal.

Mr. Dwyer pled guilty to conspiracy to possess, with intent to distribute,

100 kilograms or more of marijuana; he did not appeal his five-year sentence. In

his § 2255 motion, Mr. Dwyer raised several grounds for review of his conviction

and sentence, including allegations of governmental misconduct and ineffective

assistance of counsel. Mr. Dwyer based part of his governmental misconduct and

ineffective assistance of counsel claims on his assertion that the prosecution and

Drug Enforcement Administration agents withheld information identifying one of

his co-defendants, Mr. Williams, as a confidential informer.

The district court assigned the matter to a magistrate judge who issued an

exhaustive twenty-four page report, consisting of multiple findings of fact, a

comprehensive review of the issues presented and applicable law, and a

recommendation for dismissal of Mr. Dwyer’s § 2255 motion. Specifically, the

magistrate judge found nothing in the record to substantiate Mr. Dwyer’s

conclusory allegation that Mr. Williams acted as a confidential informant or that

the government concealed this fact. Instead, the magistrate judge found the

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presentence report unambiguously characterized Mr. Williams as a target of the

investigation and that Mr. Dwyer clearly accepted the factual basis of that report

at his sentencing hearing. After a de novo review of the magistrate judge’s report

and Mr. Dwyer’s objections thereto, the district court adopted the magistrate

judge’s findings and recommended disposition, and dismissed Mr. Dwyer’s

§ 2255 motion with prejudice.

On appeal, Mr. Dwyer raises the same assertion of governmental

misconduct and ineffective assistance of counsel based on the government’s

failure to identify Mr. Williams, known as “Frenchie,” as a confidential informer.

By not identifying Mr. Williams as a confidential informer, Mr. Dwyer asserts

drug enforcement agents provided false statements. In turn, Mr. Dwyer claims his

trial counsel acted ineffectively by failing to ascertain that these drug

enforcement agents gave false statements or defend Mr. Dwyer’s case using this

outrageous conduct as a defense. Mr. Dywer reasons that if his counsel had

“vigorously pursued the true fact that it was not a real reverse-sting and utilized

the fictitious information supplied by agents,” the result of his proceeding “would

have been different.”

“In reviewing the denial of a § 2255 motion, we review the district court’s

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legal rulings de novo and its findings of fact for clear error.” United States v.

Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001). In this case, the magistrate

judge found nothing in the record to substantiate Mr. Dwyer’s self-serving

allegation that Mr. Williams acted as a confidential informant or that the

government concealed this fact. Our review of the record, including the Drug

Enforcement Administration agents’ reports, leads us to the same conclusion.

While one of the reports identifies Mr. Williams as also being known as

“Frenchie,” nothing identifies Mr. Williams as a confidential informer. Thus, we

cannot say the magistrate judge’s finding of fact, and the district court’s adoption

thereof, is clearly erroneous. Because the factual predicate supporting Mr.

Dwyer’s allegations of governmental misconduct and ineffective assistance of

counsel is unsubstantiated, his legal arguments supporting those allegations

likewise lack merit.

In order for this court to grant a certificate of appealability, Mr. Dwyer

must make “a substantial showing of the denial of a constitutional right” as

required under 28 U.S.C. § 2253(c)(2). He fails to do so. Accordingly, for the

reasons stated herein, and for substantially the same reasons provided in the May

4, 2000 Magistrate Judge’s Findings and Recommended Disposition, and the

district court’s June 23, 2000 Order Adopting Magistrate Judge’s Findings and

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Recommended Disposition and Dismissing Action with Prejudice, we deny Mr.

Dwyer’s request for a certificate of appealability and DISMISS his appeal.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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