FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 12, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-7036
v. (D.C. No. 6:09-CV-00391-RAW and
6:06-CR-00069-RAW-1)
DYMOND CHARLES BROWN, (E.D. of Okla.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Dymond Charles Brown, a federal prisoner proceeding pro se, 1 seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2255 petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and
2253, we DENY his application for a COA and DISMISS this appeal.
*
This order is not binding precedent except under the doctrines of law of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.
1
Because Brown is proceeding pro se, we construe his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.1991).
Background
A jury convicted Brown of one count of knowingly and intentionally
possessing with intent to distribute in excess of five grams of a mixture or
substance containing a detectable amount of cocaine base in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii). We affirmed Brown’s conviction on direct
appeal. United States v. Brown, 271 F. App’x 791, 793 (10th Cir. 2008). Brown
then brought this pro se 28 U.S.C § 2255 petition, claiming 1) he received
ineffective assistance of counsel, and 2) the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The district court rejected both claims and dismissed the petition. The
court found Brown’s claim for ineffective assistance of counsel centered on his
contention that his counsel 1) failed to advise him of the foreseeable
consequences of rejecting a plea offer, 2) failed to present an actual innocence
defense, which compelled Brown to take the witness stand, and 3) failed to
adequately address information regarding an alleged relationship between
Brown’s ex-girlfriend and a witness. After reviewing the trial record, the district
court rejected each contention. The court concluded Brown maintained his
innocence and insisted on a jury trial, the evidence of guilt was overwhelming,
trial counsel’s conduct was within the realm of sound trial strategy, and counsel
cross-examined the witness regarding the alleged relationship. The district court
also determined Brown’s second claim concerning the alleged Brady violation
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was meritless because the alleged impeachment and exculpatory evidence was not
material.
Analysis
Brown’s request for a COA raises two issues that are substantially the same
as he raised before the district court. Brown first argues his trial counsel
provided ineffective assistance by failing 1) to explain the consequences of
rejecting a plea offer and proceeding to a jury trial, 2) to investigate fully the
allegations of witness impropriety, and 3) to plead an actual innocence defense.
Second, Brown claims the government failed to disclose impeachment and
exculpatory materials in violation of Brady.
A. Standard of Review
“The issuance of a COA is a jurisdictional prerequisite to an appeal from
the denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596
F.3d 1228, 1241 (10th Cir. 2010). To receive a COA, Brown “must demonstrate
that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
B. Ineffective Assistance of Counsel
To prevail on his ineffective assistance of counsel claim, Brown must
demonstrate 1) “counsel’s performance was objectively deficient,” and 2)
“counsel’s deficiency prejudiced the defense, depriving [Brown] of a fair trial
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with a reliable result.” United States v. Sanders, 372 F.3d 1183, 1185 (10th Cir.
2004). Brown “must overcome the strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance, and we are
reminded that there are countless ways to provide effective assistance of
counsel.” Id. (quotation and citation omitted). A petitioner can demonstrate
prejudice by showing “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, 694 (1984).
After reviewing the record, we are convinced Brown has failed to establish
a debatable claim of ineffective assistance of counsel. As his trial counsel stated
in an affidavit, he advised Brown to plead guilty because of the potential adverse
consequences of proceeding to a jury trial. In addition, at trial and through this
appeal, Brown continues to assert his innocence. At trial, Brown’s counsel
effectively cross-examined the witness regarding any alleged relationship with
Brown’s ex-girlfriend. The witness acknowledged being acquainted with Brown’s
ex-girlfriend but denied having any relationship with her. Finally, the decision by
Brown’s counsel not to pursue an actual innocence defense in the face of
overwhelming evidence was within the realm of sound trial strategy.
C. Brady Violation
A defendant seeking habeas relief for an alleged Brady violation “must
show that (1) the prosecution suppressed evidence; (2) the evidence was favorable
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to the accused; and (3) the evidence was material to the defense.” Snow v.
Sirmons, 474 F.3d 693, 711 (10th Cir. 2007) (citation omitted). The “touchstone
of materiality is a reasonable probability of a different result, which exists when
the government’s evidentiary suppression undermines confidence in the outcome
of the trial.” Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (quotation
and citation omitted).
The alleged Brady material was information regarding an unrelated civil
claim against one of the witnesses. As the district court correctly noted,
information regarding the lawsuit was publicly available, and the government did
not withhold or suppress evidence of the lawsuit. Nor do we find the information
material in light of the overwhelming evidence against Brown. Brown has thus
failed to demonstrate a Brady violation.
Conclusion
For the foregoing reasons, we DENY Brown’s request for a COA and
DISMISS his appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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