UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
Byron W hite United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
E lisabeth A . Shum aker D oug las E . C ressler
C lerk C hief D eputy C lerk
August 16, 2006
TO : ALL RECIPIENTS OF THE ORDER
RE: 06-7013, United States v. Scarborough
The O rder filed August 4, 2006, contained a clerical error. The Court
hereby amends the Order and has attached it hereto. The corrected Order is filed
nunc pro tunc to the original filing date of August 4, 2006.
Sincerely,
Elisabeth A . Shumaker, Clerk of Court
By:
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee, No. 06-7013
v. (D.C. No. CIV-05-398-P)
STA N LEY D A Y NE (E. D. Okla.)
SCARBOROUGH,
Defendant-Appellant.
OR DER
Before K ELLY, M cK AY, and LUCERO, Circuit Judges.
Stanley Dayne Scarborough is a federal prisoner, appearing pro se, seeking
habeas relief pursuant to 28 U.S.C. § 2255. On September 5, 2003, during an
undercover sting in W agoner, Oklahoma, law enforcement officers recovered
76.08 grams of cocaine base, 27.06 grams of cocaine, and more than nine grams
of methamphetamine from M r. Scarborough’s residence. He was indicted by a
federal grand jury on three counts of violating 21 U.S.C. § 841(a)(1). M r.
Scarborough, represented by counsel, pleaded guilty to all three counts. He
subsequently filed a pro se motion to withdraw his plea, which motion was denied
after a hearing. At M r. Scarborough’s sentencing, he objected to the presentence
report’s recommended two-level enhancement for possessing a firearm in relation
to the underlying crime and requested a reduction of sentence for acceptance of
responsibility. The district court denied his motions and sentenced him to 151
months’ imprisonment on each count, with each count to be served concurrently.
M r. Scarborough filed a direct appeal to question whether (1) the district court
abused its discretion by denying the motion to withdraw plea, (2) the district
court committed clear error by finding the firearm enhancement, and (3) the
district court committed clear error by refusing a reduction for acceptance of
responsibility. On appeal, we found that the district court did not abuse its
discretion by denying the motion to withdraw plea, that M r. Scarborough was not
entitled to a reduction for acceptance of responsibility, and that the two-level
enhancement was not plain error. United States v. Scarborough, 134 Fed. Appx.
238 (10th Cir. 2005).
M r. Scarborough, following his loss on appeal, filed this motion for
resentencing under Blakely v. Washington, 542 U.S. 296 (2004), and claimed
ineffective assistance of counsel.
Although M r. Scarborough did not make a Blakely objection at sentencing,
he did raise it on direct appeal. W e determined that the district court’s imposition
of the two-level enhancement was plain error, even though Blakely had not been
decided at the time of M r. Scarborough’s sentencing, but we did not find that it
seriously affected his substantial rights. See Scarborough, 134 Fed. Appx. at 243.
At this time, M r. Scarborough is not entitled to relief under Blakely because his §
2
2255 motion is a collateral attack on his sentence. See United States v. Bellamy,
411 F.3d 1182, 1188 (10th Cir. 2005) (holding that Blakely principles do not
apply retroactively to cases on collateral review).
The trial court erroneously concluded that M r. Scarborough’s ineffective
assistance of trial counsel claim was waived when he failed to raise the issue on
direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003) (“W e hold
that an ineffective-assistance-of-counsel claim may be brought in a collateral
proceeding under § 2255 whether or not the petitioner could have raised the claim
on direct appeal.”). Despite the erroneous legal conclusion regarding waiver, the
district court also addressed the merits of M r. Scarborough’s ineffective
assistance of counsel claim. W e find no error in the district court’s treatment of
the merits.
M r. Scarborough also raises a claim of ineffective assistance of appellate
counsel, specifically that his appellate counsel failed to submit a transcript of
sentencing to the appellate court. Here, we are in accord w ith the district court’s
application of the Strickland v. Washington, 466 U.S. 668, 686 (1984), test and
determine that his claim is meritless.
M r. Scarborough now seeks from this court a certificate of appealability.
The issues he raises on appeal are identical to those brought before the district
court. To grant a certificate of appealability, M r. Scarborough must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
3
2253(c)(2) (1994). To meet this burden, he must demonstrate “that reasonable
jurists could debate w hether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented w ere
adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529
U.S. 473, 484 (2000) (quotation omitted).
W e have carefully reviewed the briefs of M r. Scarborough and Appellee,
the district court’s disposition, and the record on appeal. Nothing in the facts, the
record on appeal, or M r. Scarborough’s filing raises an issue which meets our
standard for the grant of a certificate of appealability. For substantially the same
reasons set forth by the district court in its Order of January 31, 2006, we cannot
say “that reasonable jurists could debate w hether (or, for that matter, agree that)
the petition should have been resolved in a different manner.” Id.
Accordingly, we D EN Y M r. Scarborough’s request for a certificate of
appealability and DISM ISS the appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
4