FILED
United States Court of Appeals
Tenth Circuit
October 14, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-1335
DALE CHALLONER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. Nos. 00-cr-00482-EWN-2 and 04-cv-01607-EWN)
Submitted on the briefs: *
Robert G. Levitt, Esq., Denver, Colorado, for Appellant.
David M. Gaouette, Acting United States Attorney, and Andrew A. Vogt,
Assistant United States Attorney, Office of the United States Attorney for the
District of Colorado, for Appellee.
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
TACHA, Circuit Judge.
*
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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Dale Challoner, a federal prisoner, filed a habeas petition pursuant to 28
U.S.C. § 2255 alleging ineffective assistance of counsel and violation of the
Double Jeopardy Clause. The district court denied his petition. This court
granted a certificate of appealability (“COA”) on the issue of “whether Mr.
Challoner’s sentence on Count 14, which charged a violation of 18 U.S.C.
§ 844(h), violates the Double Jeopardy Clause.” Our jurisdiction arises under 28
U.S.C. §§ 1291 and 2253, and we AFFIRM.
I. BACKGROUND
This court summarized the background of this case on direct appeal. In
pertinent part, it is as follows:
In the weeks prior to September 11, 2000, Defendant Challoner
and co-defendants Isaac Ortiz and Sherri Jackson developed a plan to
rob the Colorado East Bank & Trust in La Junta, Colorado. The plan
involved several steps, including setting fire to an elementary school to
divert and distract law enforcement, and kidnapping the bank president
at gunpoint.
On the evening of September 11, Ms. Jackson drove Defendant
and Ortiz to the New Columbian Elementary School. Defendant had
previously obtained two “Molotov cocktails.” He exited the vehicle
carrying the firebombs, lit the wicks, and threw both through a window
of the school. The firebombs exploded and began to burn inside the
school. Defendant then returned to the vehicle, and Jackson drove
across town to the home of Greg Mullins, the president of Colorado
East Bank & Trust. Defendant and Ortiz donned masks and gloves, and
exited the vehicle. Defendant armed himself with a shotgun. Ortiz
carried a knife. The two men broke into the Mullins’ residence and
entered the bedroom where Mullins lay asleep with his wife. Ortiz
struck Mullins’ wife, bound and gagged her with duct tape, and
threatened her with the knife. Defendant struck Mullins with the
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shotgun, pointed the weapon at him, and ordered him to dress and
accompany Defendant to the bank. Defendant informed Mullins his
wife would be killed if he did not cooperate.
Defendant then forced Mullins to drive him at gunpoint to the
bank. Ortiz remained behind with Mullins’ wife. Upon entering the
bank, Mullins realized he had left his glasses behind and could not see
well enough to open the safe. He supplied the combination to
Defendant, who likewise was unable to open the safe. Defendant again
struck Mullins with the shotgun. He then forced Mullins to place a
phone call to the Mullins residence, and fled the scene. The phone call
was a preplanned signal to Ortiz that the robbery was completed. Upon
receiving the call, Ortiz also fled leaving Mrs. Mullins bound and
gagged.
A grand jury returned a fourteen-count indictment charging
Defendant and six others with various offenses arising from the bank
robbery plot. The indictment charged Defendant in eight counts, one
of which was dismissed prior to trial. Defendant was tried on seven
counts: Conspiracy to Commit Bank Robbery (Count 1); Attempted
Bank Robbery (Count 2); Using, Carrying and Brandishing a Firearm
in Relation to a Crime of Violence (Count 3); Damaging Property by
Means of Fire (Count 4); Using and Carrying a Destructive Device in
Relation to a Crime of Violence (Count 5); Possession of an
Unregistered Incendiary Device (Count 6); and Use of Fire or Carrying
an Explosive During Commission of Another Felony (Count 14). The
predicate felonies identified in Count 14 were the conspiracy alleged in
Count 1 and the attempted armed bank robbery alleged in Count 2. A
jury convicted Defendant on all seven counts.
United States v. Challoner, No. 01-1437, 2003 WL 21000995, at *1 (10th Cir.
May 5, 2003). He was sentenced to a total of 1080 months (90 years) in prison.
Relevant to this appeal, he received consecutive sentences of ten years on Count
14, thirty years on Count 5, and twenty-five years on Count 3.
Mr. Challoner appealed, arguing that the evidence was insufficient to
support his conviction on Count 14, the district court erred in denying his motion
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for a downward departure, and the length of his sentence was disproportionate to
the severity of his offenses in violation of the Eighth Amendment. See id. at
*2–4. We affirmed Mr. Challoner’s conviction and sentence, see id. at *3–4, and
the Supreme Court denied certiorari on October 6, 2003. See Challoner v. United
States, 540 U.S. 922 (2003).
On October 6, 2004, Mr. Challoner filed his § 2255 petition alleging
ineffective assistance of trial counsel and that his convictions and sentences under
Counts 14, 5, and 3 violate the Double Jeopardy Clause. Because he failed to
raise the double jeopardy claim on direct appeal, the district court ordered Mr.
Challoner to show cause and prejudice, if any. The court also appointed counsel.
In response, Mr. Challoner argued for the first time that his appellate counsel was
constitutionally deficient in failing to raise the double jeopardy issue on direct
appeal. The district court denied Mr. Challoner’s § 2255 petition in its entirety,
ruling in part that he had not shown cause for his procedural default of the double
jeopardy claim. This court granted Mr. Challoner a COA on the sole issue of
whether his sentence on Count 14 violates the double jeopardy clause.
II. DISCUSSION
Before addressing the particulars of Mr. Challoner’s double jeopardy
argument, we must first set forth in detail his convictions and sentences on
Counts 14, 5, and 3. Count 14 charged Mr. Challoner under 18 U.S.C. § 844(h), a
sentencing enhancement provision which mandates a ten-year sentence in addition
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to any other sentence if the defendant uses fire or an explosive to commit any
felony or carries an explosive during the commission of any felony. The count
charged Mr. Challoner under both alternatives and referred to the felonies
comprising both Count 1 (conspiring to commit bank robbery) and Count 2
(attempted bank robbery). Count 5 charged Mr. Challoner under 18 U.S.C.
§ 924(c)(1)(B)(ii), which similarly provides for a thirty-year sentencing
enhancement if the defendant uses or carries a destructive device during and in
relation to a crime of violence, or if he possesses a destructive device in
furtherance of a crime of violence. The destructive device was described as a
Molotov cocktail, and the count referred to Counts 1 (conspiring to commit bank
robbery) and 4 (damage to property by means of fire) as the predicate crimes of
violence. The jury’s verdict, however, noted only Count 1 as the predicate crime
of violence. Finally, Count 3 charged a second violation of § 924(c), this time
charging Mr. Challoner based on his brandishing of the shotgun during and in
relation to the attempted bank robbery described by Count 2. A second § 924(c)
conviction carries a twenty-five-year sentence enhancement. Accordingly, the
district court sentenced Mr. Challoner to ten years on Count 14, thirty years on
Count 5, and twenty-five years on Count 3, all to run consecutively to each other.
In his § 2255 petition and on appeal, Mr. Challoner argues that the same
offense supported his convictions on Counts 14, 5, and 3, and that he has been
punished multiple times for the same crime in violation of the Double Jeopardy
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Clause. He failed to raise this claim, however, on direct appeal. Ordinarily,
“[section] 2255 is not available to test the legality of matters which should have
been raised on appeal.” United States v. Khan, 835 F.2d 749, 753 (10th Cir.
1987). “Where a defendant has procedurally defaulted a claim by failing to raise
it on direct review, the claim may be raised in habeas only if the defendant can
first demonstrate either cause and actual prejudice, or that he is actually
innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (quotations and
citations omitted).
Mr. Challoner maintains that his appellate counsel’s failure to raise this
multiplicity claim on direct appeal constitutes cause. In such a circumstance, the
“error must rise to the level of ineffective assistance of counsel, however, for [a]
defendant to overcome the failure to raise the claim.” United States v. Walling,
982 F.2d 447, 449 (10th Cir. 1992); see also Murray v. Carrier, 477 U.S. 478,
488 (1986) (“Ineffective assistance of counsel, then, is cause for a procedural
default.”). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-prong test for demonstrating ineffective assistance of counsel:
A defendant must show both that his counsel’s representation “fell below an
objective standard of reasonableness,” and that there is a reasonable probability
that, but for the counsel’s error, “the result of the proceeding would have been
different.” Id. at 688, 694.
Because Mr. Challoner argues that his appellate counsel was ineffective in
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omitting an issue on appeal, “our ‘scrutiny . . . must be highly deferential’” to
counsel’s conduct. United States v. Cook, 45 F.3d 388, 394 (10th Cir. 1995)
(quoting Strickland, 466 U.S. at 689). Every effort must be made “‘to evaluate
the conduct from counsel’s perspective at the time,’” and “‘[c]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.’” Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994) (quoting Strickland, 466 U.S.
at 689). To overcome this strong presumption, a defendant “bears a heavy
burden.” Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000).
Mr. Challoner has not met this heavy burden. In his reply brief, Mr.
Challoner contends his appellate counsel was ineffective because “[t]he issue of
double jeopardy was not a weak issue, but rather . . . a viable issue that was
deserving of appellate review.” The omission of a “viable” issue, however, does
not in and of itself constitute ineffective assistance of counsel. See Cook, 45 F.3d
at 394 (“The Sixth Amendment does not require an attorney to raise every
nonfrivolous argument on appeal.”). “[The] process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S.
745, 751–52 (1983)). Nevertheless, the omission of a “dead-bang winner” by
counsel is deficient performance which may result in prejudice to a defendant.
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Cook, 45 F.3d at 395. A “dead-bang winner” is “an issue which was obvious
from the trial record and one which would have resulted in a reversal on appeal.”
Id. (citations omitted).
Count 14 charged a violation of § 844(h), while Counts 3 and 5 charged
violations of § 924(c). Although we have held that double jeopardy prohibits
multiple § 924(c) convictions that are based on the same underlying offense, see
United States v. Parra, 2 F.3d 1058, 1070–71 (10th Cir. 1993), we are unaware of
any authority stating that the same rule applies to convictions under § 844(h) and
§ 924(c). Therefore, Mr. Challoner’s double jeopardy argument requires a non-
obvious extension of currently existing law. While the argument may indeed be
nonfrivolous, it is far from a “dead-bang winner.” See Cook, 45 F.3d at 395
(suggesting that appellate counsel’s failure to raise issue which “‘was obvious on
the record, and must have leaped out upon even a casual reading of [the]
transcript’” was objectively unreasonable) (quoting Matire v. Wainwright, 811
F.2d 1430, 1438 (11th Cir. 1987)). In this case, then, we cannot say that it was
objectively unreasonable for Mr. Challoner’s appellate counsel to omit the issue
in favor of what he considered stronger arguments. See, e.g., United States v.
Magleby, 420 F.3d 1136, 1145 (10th Cir. 2005) (“Whatever the merits of Mr.
Magleby’s . . . contention, it was not so obvious at the time of his direct appeal
that counsel’s failure to raise it was unreasonable. No decisions had yet adopted
his view.”). Mr. Challoner’s claim of ineffective assistance of counsel thus fails
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to satisfy the first prong of the Strickland test.
We hold that Mr. Challoner has not demonstrated that his attorney was
ineffective in failing to raise the double jeopardy issue on direct appeal. Thus,
Mr. Challoner has failed to show cause excusing the procedural default, and we
cannot reach the merits of this claim on collateral review.
III. CONCLUSION
The district court correctly held that Mr. Challoner’s double jeopardy claim
was procedurally barred. We therefore AFFIRM the denial of his § 2255 motion.
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