FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 14, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-5020
v. (D.C. Nos. 4:14-CV-00609-JHP-PJC and
4:13-CR-00068-JHP-6)
JUSTIN JACKSON, (N.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
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The United States District Court for the Northern District of Oklahoma denied the
motion for relief under 28 U.S.C. § 2255 filed by Defendant Justin Jackson. Defendant
now seeks from this court a certificate of appealability (COA) so that he can appeal the
denial. See 28 U.S.C. § 2253(c)(1)(B) (requiring certificate of appealability to appeal
from “the final order in a proceeding under section 2255”). We deny the request for a
COA and dismiss the appeal.
In 2013, Defendant pleaded guilty to one count of an indictment charging him
with conspiring to possess with intent to distribute more than 500 grams of
methamphetamine. In the plea agreement he waived the right to raise collateral attacks
on his conviction and sentence other than in claims of ineffective assistance of counsel
challenging the validity of the plea or the waiver.
Defendant then filed a § 2255 motion raising several challenges to his conviction
and sentence. All were rejected by the district court, which also declined to issue a COA.
Defendant seeks a COA in this court only with respect to his ineffective-assistance-of-
counsel claim, expressly waiving all other grounds.
As we understand his claim, he is asserting that his attorney improperly counseled
him to plead guilty to an offense that was not charged in the indictment against him. He
points to the indictment’s only mention of his conduct in its description of the
conspiracy’s means and methods—an allegation that he acted as a courier of
methamphetamine and drug proceeds between coconspirators Glen Jackson, Jr. and
Leonel Mares. He argues that his criminal liability should have been limited to these acts
and his plea to a larger conspiracy should therefore be set aside.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
To demonstrate ineffective assistance of counsel, Defendant must demonstrate
both that counsel’s performance was deficient and that he was prejudiced by counsel’s
deficiency. See Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016). “An
insufficient showing on either element is fatal to an ineffective-assistance claim,
rendering consideration of the other element unnecessary.” Id.
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Here, there was no deficiency in counsel’s representation. Defendant did not
plead to an uncharged crime. The charge was conspiring to possess with intent to
distribute 500 grams or more of methamphetamine. The indictment’s description of
certain overt acts does not limit Defendant’s offense to those acts. See United States v.
Holland, 956 F.2d 990, 993 (10th Cir. 1992) (“It is the agreement, separate and apart
from the overt act itself, which comprises the crime [of conspiracy].”). Defense
counsel’s alleged error was no error, and it is axiomatic that correctly stating the law is
not ineffective assistance of counsel. See United States v. Elias, 937 F.2d 1514, 1520
(10th Cir. 1991) (“Because a section 922 offense does not require specific intent, Elias
cannot complain his attorney’s failure to advise him about [specific intent] constitutes
incompetence.”). No reasonable jurist would debate that denial of Defendant’s
ineffective-assistance-of-counsel claim was correct.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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