FILED
United States Court of Appeals
Tenth Circuit
April 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08–2228
(D. of N.M.)
v.
TERRY BENNETT WILLIAMSON, (D.C. No. 07-CV-00910-JEC-LF and
05-CR-02120-JEC-1)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Terry Williamson, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 petition for habeas relief. Because
Williamson cannot make a substantial showing of the denial of a constitutional
right, we decline to issue a Certificate of Appealability (COA) and dismiss the
appeal. See 28 U.S.C. § 2253(c).
*
This order is not binding precedent except under the doctrines of law of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.
Background
Williamson pleaded guilty to one count of possession with intent to
distribute five grams or more of methamphetamine and one count of possession
with intent to distribute less than fifty grams of a mixed substance containing
methamphetamine. As a condition of his plea agreement, Williamson waived his
right to appeal, and we therefore dismissed his direct appeal on this basis. See
United States v. Williamson, 217 F. App’x 823, 824 (10th Cir. 2007) (citing
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)).
Williamson then filed a motion for habeas relief under § 2255. Reading
Williamson’s pro se motion liberally, see Brown v. Perrill, 21 F.3d 1008, 1009
(10th Cir. 1994), we understand him to make three ineffective assistance of
counsel claims arising from his attorney’s failure to: (1) object to various alleged
violations of the Speedy Trial Act; (2) object to the district court’s alleged failure
to comply with Federal Rule of Criminal Procedure 32(i)(3)(B); and (3) warn
Williamson of a potential sentence enhancement.
After considering Williamson’s arguments, the district court adopted the
magistrate judge’s recommendation and dismissed his petition. This appeal
followed.
Discussion
A petitioner cannot appeal the dismissal of a § 2255 petition “unless a
circuit justice or judge issues a certificate of appealability.” § 2253(c)(1). We
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issue a COA only where the petitioner makes “a substantial showing of the denial
of a constitutional right.” § 2253(c)(2). Doing so requires demonstrating that
“reasonable jurists could debate whether . . . the petition should have been
resolved in a different way or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84
(2000) (quotation and citation omitted); Coppage v. McKune, 534 F.3d 1279,
1281 (10th Cir. 2008).
As a preliminary matter, we note that to the extent Williamson is alleging
violations of the Speedy Trial Act and Rule 32, neither supports the issuance of a
COA because neither implicates a constitutional right. Under the Antiterrorism
and Effective Death Penalty Act (AEDPA), a COA issues only where the
applicant shows “the denial of a constitutional right.” § 2253(c)(2) (emphasis
added). Statutory claims, even if valid, are not grounds on which to issue a COA.
See United States v. Gordon, 172 F.3d 753, 753–55 (10th Cir. 1999) (holding that
the district court’s failure to comply with Federal Rule of Criminal Procedure 32
did not support the issuance of a COA). Thus, Williamson’s claims are relevant
only to the extent they demonstrate ineffective assistance of counsel or to the
extent his due process rights were compromised.
To prevail on an ineffective assistance of counsel claim, Williamson must
demonstrate that his “attorney’s performance ‘fell below an objective standard of
reasonableness’ and that the unreasonably deficient performance resulted in
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prejudice.” Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 691–92 (1984)). Prejudice exists
where “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. (quoting
Strickland, 466 U.S. at 694).
Williamson fails to meet this standard. He argues his counsel was
ineffective for failing to raise alleged violations of the Speedy Trial Act and of
Federal Rule of Criminal Procedure 32(i)(3)(B). As the district court explained in
its thoughtful order adopting the findings of the magistrate judge, however,
Williamson’s Speedy Trial Act and Rule 32 contentions lack merit. First,
Williamson either agreed to or waived the days he claims count against the
speedy trial clock. 1 Second, the court adequately explained its reason for the
continuance such that an objection would have been futile. Third, counsel was
not ineffective for failing to raise a Rule 32 challenge to the pre-sentence report
because the only issue was the court’s legal conclusion that Williamson’s prior
convictions made him a career offender. In sum, because these claims lack merit,
1
Despite Williamson’s argument otherwise, this case is unlike United
States v. Zedner, 547 U.S. 489, 500–01 (2006) (holding “a defendant may not
prospectively waive the application of the [Speedy Trial Act]” because the
“public interest cannot be served . . . if defendants may opt out of the Act
entirely” (emphasis added)). As the district court explained, Williamson did not
waive the Speedy Trial Act “for all time,” see id. at 494, and Zedner confirmed
the propriety of properly granted ends-of-justice continuances. See id. at
498–500.
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reasonable jurists could not find that Williamson’s counsel was ineffective for
failing to raise them. See Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir.
2006) (explaining that failure to raise a meritless claim is not ineffective
assistance of counsel). 2
Moreover, Williamson argues that his counsel was ineffective for failing to
inform him that his prior convictions exposed him to an enhanced sentence under
the Federal Sentencing Guidelines. Williamson first raised this contention,
however, in his objections to the magistrate judge’s recommendation. “In this
circuit, theories raised for the first time in objections to the magistrate judge’s
report are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001). Williamson therefore waived this argument.
Conclusion
Accordingly, we DECLINE to issue a COA and DISMISS the appeal. We
also DENY Williamson’s motion to proceed in forma pauperis.
Entered for the Court,
Timothy M. Tymkovich
United States Circuit Judge
2
Williamson also appears to argue that counsel’s decision to request a
continuance violated his due process rights and constituted ineffective assistance
of counsel. Both claims fail, though, because Williamson has not shown actual
prejudice. See Strickland, 466 U.S. at 694; see also United States v. Allen, 554
F.2d 398, 406 (10th Cir. 1977) (stating that “[a] claim of denial of due process by
pre-indictment delay must be supported by a showing of actual prejudice”).
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