F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-6229
(D.C. Nos. 01-CV-339-T,
v.
98-CR-93-T)
(Western District of Oklahoma)
NAKISHA JOHNSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining Appellant’s brief and the 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This order and judgment is not binding precedent, except under the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.
Appellant Nakisha Johnson is before this court seeking a certificate of
appealability (“COA”). Until Johnson obtains a COA, she cannot appeal the
district court’s denial of her motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(b) (providing
that a petitioner may not appeal the denial of a § 2255 motion unless she first
obtains a COA). Johnson has not made “a substantial showing of the denial of a
constitutional right,” and, therefore, this court denies Johnson’s request for a
COA and dismisses the appeal. See id. § 2253(c)(2).
After a jury trial, Johnson was convicted of one count of conspiracy to
possess with intent to distribute crack cocaine in violation of §§ 841(a) and 846
and one count of distribution of crack cocaine in violation of § 841(a). Johnson
was sentenced to one hundred fifty-one months’ incarceration and a five-year
term of supervised release. On direct appeal, this court affirmed Johnson’s
convictions. See United States v. Evans , No. 99-6184, 2000 WL 219969 (10th
Cir. Feb. 25, 2000) (unpublished disposition). Johnson then filed the instant §
2255 habeas petition. In her petition, Johnson reasserted the two claims raised
on direct appeal and raised five additional claims, including an Apprendi 1 claim.
The district court first concluded that the two claims raised and disposed of
on direct appeal could not be reasserted in the § 2255 motion. See United States
1
See Apprendi v. New Jersey, 530 U.S. 466 (2000).
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v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989) (“Absent an intervening change
in the law of a circuit, issues disposed of on direct appeal generally will not be
considered on a collateral attack by a motion pursuant to § 2255.”). The district
court also determined that the claims not raised on direct appeal were
procedurally barred unless Johnson could show cause and prejudice for the
default or demonstrate that a fundamental miscarriage of justice would result if
her claims were not considered. See Coleman v. Thompson , 501 U.S. 722, 750
(1991). The district court considered whether Johnson’s failure to raise the
claims was the result of ineffective assistance of counsel. See United States v.
Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A defendant may establish cause for
procedural default by showing he received ineffective assistance of counsel.”).
The district court ultimately concluded that Johnson had failed to show either
constitutionally deficient performance on the part of her counsel or that she was
prejudiced by the alleged deficient performance. See Strickland v. Washington ,
466 U.S. 668, 687 (1984). The court also concluded that Johnson’s unsupported
assertion of actual innocence was insufficient to satisfy the fundamental
miscarriage of justice standard. See Herrera v. Collins , 506 U.S. 390, 404
(1993).
Johnson seeks a COA only for her Apprendi claim, her double jeopardy
claim, and her claim that her sentence was improperly enhanced because of her
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co-defendant’s possession of a handgun. We agree with the district court that all
of these claims lack merit. 2
Thus, counsel’s failure to raise them on direct appeal
does not constitute constitutionally ineffective assistance of counsel. See United
States v. Cook , 45 F.3d 388, 393 (10th Cir. 1995).
Johnson is not entitled to a COA unless she can make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Johnson can make that showing by demonstrating that: (1) the issues raised are
debatable among jurists, (2) a court could resolve the issues differently, or (3)
that the questions presented deserve further proceedings. See Slack v. McDaniel ,
529 U.S. 473, 483-84 (2000).
This court has reviewed Johnson’s request for a COA, Johnson’s appellate
brief, the district court’s order, and the entire record before us. That review
demonstrates that the district court’s disposition of Johnson’s § 2255 motion is
not deserving of further proceedings, debatable among jurists of reason, or
2
Johnson’s Apprendi claim relating to the term of her supervised release
lacks merit because § 841(b)(1)(C) does not set a maximum term for supervised
release. See United States v. Heckard, 238 F.3d 1222, 1237 (10th Cir. 2001),
(holding that “§ 841(b)(1)(C) is not restricted by U.S.S.G. § 5(D)1.2(a) or [18
U.S.C.] § 3583(b)(2) from establishing terms of supervised release greater than
three years”); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.
2000) (holding that the maximum sentence of supervised release under §
841(b)(1)(C) is life). Although Johnson asserts that she received a one hundred
fifty-one month term of supervised release, the record reveals that Johnson
received a five-year term of supervised release.
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subject to different resolution on appeal. Accordingly, Johnson has failed to
make the required substantial showing of the denial of a constitutional right and
is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(b). This court denies
Johnson’s request for a COA for substantially those reasons set forth in the
district court’s order dated May 15, 2001, and dismisses this appeal. Johnson’s
motion to proceed in forma pauperis on appeal is granted .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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