FILED
United States Court of Appeals
Tenth Circuit
February 7, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 13-3167
v. (D.C. Nos. 2:13-CV-02083-JWL and
2:07-CR-20168-JWL-22)
KEITH McDANIEL, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Keith McDaniel, a federal prisoner proceeding pro se, 1 seeks a certificate of
appealability (COA) to appeal the district court’s denial of his motion to vacate,
set aside, or correct his sentence. Because McDaniel has failed to make “a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we DENY a COA and
DISMISS the 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This order is not binding precedent except under the doctrines of law of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.
1
We liberally construe McDaniel’s pro se filings. See Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
Following a federal jury trial, Keith McDaniel was convicted of various
federal cocaine related drug charges. We affirmed his conviction on direct
appeal. See United States v. McDaniel, 433 F. App’x 701 (10th Cir. 2011).
McDaniel then filed a pro se § 2255 habeas petition arguing that he received
ineffective assistance of trial and appellate counsel. He also requested an
evidentiary hearing. The district court denied the petition in its entirety and
denied the request for a hearing. On appeal, he reasserts his argument that he was
entitled to an evidentiary hearing as well as his claims of ineffective assistance of
counsel based on counsel’s failure to object to certain evidence or move to
suppress certain evidence.
To prevail on an ineffective assistance of counsel claim, McDaniel must
show that his counsel’s conduct “fell below an objective standard of
reasonableness” and that such deficient performance resulted in prejudice to the
defense—that 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).
McDaniel claims that his counsel should have moved to suppress recorded
conversations involving McDaniel because the wiretap application was invalid.
For the same reasons articulated by the district court, we find that counsel’s
performance was not deficient or prejudicial. McDaniel argues that the wiretap
application was invalid because it did not name him in the application even
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though the government allegedly knew he was participating in drug trafficking
activities. 2 Even though the police may have known about McDaniel’s
participation in the conspiracy, there is no indication in the record that at the time
of the application the police knew McDaniel was related to any of the targeted
phones. As a result, the wiretap application was not invalid and McDaniel cannot
show prejudice based on his counsel’s failure to move to suppress the calls
recorded pursuant to the wiretap. See United States v. Russo, 527 F.2d 1051,
1056–57 (10th Cir. 1975) (noting that the government is not required to identify a
defendant by name in a wiretap order and application if, at the time of
application, the government lacked probable cause that defendant was either
committing the offense or using the target phone).
McDaniel further claims that his counsel should have moved to suppress
transcripts of the calls where McDaniel’s name had been inserted in lieu of
“Unknown Male” a few days prior to trial. The district court thoroughly
addressed this issue. McDaniel does not allege the government improperly
modified the audio recordings or that he suffered prejudice as a result of the
2
McDaniel also alleges that he was not given prompt notice of the
government’s intent to use the contents of the wiretap to obtain an indictment.
Assuming McDaniel is claiming a violation of 18 U.S.C. § 2518(8)(d), McDaniel
was only entitled to “discretionary” notice because he was not named in the
wiretap application. See United States v. Donovan, 429 U.S. 413 (1977). As we
have stated, his omission from the application was not erroneous. As a result, the
failure to notify McDaniel, who was not named in the order, does not mandate
suppression. See id.
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timing of the alteration. At trial, the government put on evidence identifying
McDaniel as one of the speakers. And the transcripts of the calls were admitted
at trial for demonstrative purposes only to aid the jury in reviewing the records
themselves. Thus, even if counsel erred in failing to object to the admission of
the transcripts, McDaniel cannot show he has suffered prejudice as a result.
Finally, McDaniel contends that his constitutional rights were violated
when the district court denied his § 2255 motion without conducting an
evidentiary hearing. We review the district court’s refusal to hold an evidentiary
hearing for an abuse of discretion. United States v. Harms, 371 F.3d 1208, 1210
(10th Cir. 2004). After reviewing the record, we are satisfied that the district
court did not abuse its discretion in declining to hold an evidentiary hearing.
Accordingly, we DENY McDaniel’s application for a COA and DISMISS
the appeal.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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