F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Respondent-Appellee, No. 07-6018
v. (W .D. of Okla.)
K EN Y A L. N IC HO LSO N , (D.C. Nos. CR-03-145-R
and CIV-06-1148-R)
Petitioner-A ppellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before H E N RY, A ND ER SO N, and TYM KOVICH, Circuit Judges. **
Petitioner-Appellant Kenya Nicholson, a federal prisoner proceeding pro
se, seeks a certificate of appealability (COA) to appeal the district court’s denial
of his habeas corpus petition brought under 28 U.S.C. § 2255. Because Nicholson
has failed to make a “substantial showing of the denial of a constitutional right,”
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
we deny a COA and affirm the district court’s denial of his habeas petition. See
28 U.S.C. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 484 (2000).
I. Background
In 2004, Nicholson was convicted by a jury of conspiring to possess with
intent to distribute (1) 500 grams or more of a substance containing a detectable
amount of cocaine powder, (2) 50 grams or more of a substance containing a
detectable amount of cocaine base, and (3) less than 100 kilograms of marijuana
in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was also convicted of
knowingly using a telephone in furtherance of the conspiracy in violation of 21
U.S.C. § 843(b) and 18 U.S.C. § 2, possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1), and attempting to possess cocaine with intent
to distribute in violation of 21 U.S.C. § 846. Because the district court found that
Nicholson had three prior felony convictions for controlled substance offenses, he
received a life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).
On direct appeal, Nicholson argued insufficient evidence existed to support
his conviction. This court rejected his argument and affirmed his conviction.
United States v. Nicholson, 136 F. App’x 145 (10th Cir. 2005). Nicholson then
filed his § 2255 petition in the district court, arguing (1) the court, by imposing a
life sentence, violated the statutory maximum of 21 U.S.C. § 841(b)(1)(D), which
provides penalties for convictions involving less than 50 kilograms of marijuana;
(2) the government’s evidence at trial did not prove the conspiracy charged; and
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(3) he received ineffective assistance of counsel. The district court denied his
petition and a CO A. In Nicholson’s application for a COA before this court, he
reasserts his claims and submits a renewed application to proceed in forma
pauperis.
II. Analysis
Under the Antiterrorism and Effective Death Penalty Act of 1996, we may
issue a CO A only if a petitioner “make[s] a substantial showing of the denial of a
constitutional right, a demonstration that . . . includes showing that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack, 529 U.S. at 483–84 (quoting Barefoot
v. Estelle, 463 U .S. 880, 893 & n.4 (1983)). Because N icholson proceeds pro se,
we review his appeals with special leniency. Andrews v. Heaton, 483 F.3d 1070,
1076 (10th Cir. 2007). Even when viewed through this lens, however, we agree
with the district court that dismissal was appropriate.
A. The Sentence
As the district court correctly noted, Nicholson’s first claim that his
sentence violated § 841(b)(1)(D) is barred because it was not raised on direct
appeal and Nicholson has failed to show cause and prejudice or a miscarriage of
justice. See M assaro v. United States, 538 U.S. 500, 504 (2003); United States v.
Allen, 16 F.3d 377, 378 (10th Cir. 1994). Nicholson has made no attempt to
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explain why he was unable to raise his claim on appeal; specifically, he has not
shown that “some objective factor external to the defense impeded counsel’s
efforts to raise the claim in state court.” M cCleskey v. Zant, 499 U.S. 467, 493
(1991) (internal quotation omitted). Nor has he made a showing of actual
innocence sufficient to establish a miscarriage of justice.
However, even if Nicholson’s claim was not procedurally barred, it would
fail because, under the circumstances of this case, his sentence was correctly
calculated. Nicholson was convicted under 21 U.S.C. § 846 of conspiracy to
possess with intent to distribute various controlled substances. Section 846
provides the same penalties for conspiracy that apply to convictions for
possession and distribution under 21 U.S.C. § 841(b)(1)(A ), which provides, “if
any person commits a violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment without release.”
Nicholson’s conviction for 50 grams or more of a substance containing a
detectable amount of cocaine base falls under § 841(b)(1)(A ) and makes him
subject to a mandatory life sentence. Because the government established three
prior felony drug offenses in accordance with the procedures outlined in 21
U.S.C. § 851, the sentencing court was required to sentence Nicholson to life
imprisonment.
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Contrary to Nicholson’s assertions, 21 U.S.C. § 841(b)(1)(D) does not
apply to him. Section 841(b)(1)(D) provides mandatory sentences for offenses
involving less than 50 kilograms of marijuana. The jury in this case, by special
interrogatories, found Nicholson specifically accountable for 500 grams or more
of a substance containing a detectable amount of cocaine powder, 50 grams or
more of a substance containing a detectable amount of cocaine base, and less than
100 kilograms of marijuana. This is not a general verdict for which the court
could not determine for w hich drug quantities the defendant was convicted. Cf.
Newman v. United States, 817 F.2d 635 (10th Cir. 1987). The court therefore
properly calculated Nicholson’s sentence under § 841(b)(1)(A).
B. The Evidence at Trial
Nicholson next claims the government’s evidence at trial did not prove one
conspiracy but multiple conspiracies, and that this “variance” effectively altered
the charges against him. 1 He in essence argues that the evidence against him was
insufficient to prove his involvement in the single conspiracy alleged by the
1
Nicholson relies on Kotteakos v. United States, 328 U.S. 750 (1946), for
the proposition that a conviction for conspiracy should be reversed if the
indictment alleges a single conspiracy but the evidence at trial proves multiple
conspiracies. In Kotteakos, the Court found that the case actually involved eight
separate conspiracies with only one of thirty-two defendants common to each. Id.
at 766. The Court reversed the convictions because the disparity between the size
of the alleged conspiracy and the actual conspiracies affected the substantial
rights of the defendants. Id. at 776. The Court, however, left open the possibility
that a more minor variance would not affect a defendant’s substantial rights. Id.
at 764–65.
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government. The district court dismissed this claim as barred because Nicholson
did not raise the specific claim regarding multiple conspiracies on direct appeal.
W e agree with the district court that the claim is barred, and Nicholson has failed
to show cause and prejudice or a miscarriage of justice.
W e note, however, that Nicholson did raise a substantially similar claim on
direct appeal, and his conviction was affirmed. On direct appeal, Nicholson
argued the evidence against him was insufficient because his mere knowledge of
the illegal activities of others did not establish his involvement in the conspiracy.
Nicholson, 136 F. App’x at 146. W e found,
The record is in fact replete with testimony from various witness
[sic] that, if credited by the jury, would establish an agreement
between [Nicholson] and coconspirator Kenny Brown to pool money
to purchase and distribute narcotics, M r. Nicholson’s knowledge of
the objectives of and active participation in the conspiracy, and the
interdependence of the coconspirators in purchasing cocaine together
and sharing a house to ‘cook up’ the crack and store proceeds from
drug sales.
Id. at 147 (internal citations to record on appeal omitted). This evidence
establishes Nicholson’s central role in the conspiracy.
Even if we accept Nicholson’s contention that the evidence in fact proved
m ultiple separate conspiracies rather than a single conspiracy, he has not show n
that he was prejudiced by the alleged error or that it resulted in a miscarriage of
justice. As we found on direct appeal, the evidence clearly supports Nicholson’s
central role in a drug conspiracy, including his role as a distributor. Even if the
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evidence did establish multiple conspiracies, Nicholson was a likely participant in
each of them. Thus, the evidence we found sufficient on appeal to support
Nicholson’s conviction is also sufficient now to show Nicholson suffered neither
prejudice nor a miscarriage of justice from any variance between the conduct
charged and the evidence at trial.
C. Ineffective Assistance of Counsel
Nicholson next asserts that his counsel was ineffective for (1) failing to
raise the preceding two issues on direct appeal; (2) failing to raise his Sixth
Amendment rights under United States v. Booker, 543 U.S. 220 (2005), on direct
appeal; and (3) failing to present the testimony of his girlfriend at trial as an alibi
witness. In order to prevail on an ineffective assistance of counsel claim,
Nicholson must show that his counsel’s conduct “fell below an objective standard
of reasonableness” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Nicholson has failed to show that any of the alleged errors fell below an
objective standard of reasonable performance or that any deficient performance
prejudiced him. First, Nicholson cannot show that his counsel was deficient for
failing to raise the untenable claim that his sentence was improperly calculated or
that any failure to challenge his sentence on appeal prejudiced the outcome. And
as for Nicholson’s evidentiary argument, counsel did in fact argue the sufficiency
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of the evidence on appeal, an argument this court rejected. Nicholson, 136 F.
App’x at 147. As w e determined above, Nicholson has not shown that his slightly
different approach to the sufficiency of the evidence argument presented in this
petition would have affected the outcome of the appeal. Nicholson has thus failed
to make a substantial show ing of denial of a constitutional right on these issues.
Second, Nicholson has not shown his trial counsel was ineffective for
failing to raise Booker issues on appeal. The Supreme Court in Booker held that
“[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at 244. Nicholson’s life sentence
was based on his three prior felony drug convictions. The district court’s
determination that Nicholson was eligible for a statutory life sentence based on
these prior convictions is thus not subject to Booker. Id.; see also United States
v. Small, 423 F.3d 1164, 1188 (10th Cir. 2005) (“[W ]hether the present offense
and prior offenses constitute felonies that are crimes of violence or controlled
substance offenses are questions of law unaffected by the Supreme Court’s
holding in Booker.”) Even if we assume Nicholson’s counsel erred by failing to
brief Booker issues, Nicholson has not shown that any error affected the outcome
of the proceedings because Booker does not apply. He has therefore failed to
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make a substantial showing of a denial of a constitutional right with regard to
Booker.
Finally, as for his girlfriend’s testimony, even if we assume N icholson’s
attorney erred, Nicholson offers no insight as to what his girlfriend’s testimony
would have been, how it would have discredited the other evidence against him,
or how it would have accounted for his apparent participation in each of the drug
transactions about which evidence was presented at trial. Instead he simply
claims, “the testimony would have ‘proved’ to the jury that petitioner did not
have any participation or involvement with any of the numerous drug
transactions,” and that, had his girlfriend testified, “the ‘jury’ would have ignored
the testimony of Kenny Brown which inculpated petitioner in the alleged
conspiracy.” M otion for COA 6–7. This conclusory allegation is insufficient to
demonstrate that Nicholson was actually prejudiced by his girlfriend’s failure to
testify. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ruling
that a pro se defendant’s conclusory allegations were not sufficient to support an
ineffective assistance of counsel claim without supporting averments).
Nicholson has therefore not made a substantial showing of the denial of a
constitutional right regarding his girlfriend’s testimony.
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III. Conclusion
For the foregoing reasons we DENY Nicholson’s request for a COA, DEN Y
leave to proceed in form a pauperis, and DISM ISS the appeal.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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