FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 7, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v. No. 18-3110
(D.C. Nos. 5:16-CV-04115-JAR and
KENNIN DEWBERRY, 5:11-CR-40078-JAR-6)
(D. Kan.)
Defendant–Appellant.
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ORDER
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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
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Mr. Kennin Dewberry was convicted of (1) conspiring to distribute
280 grams or more of crack cocaine and (2) conspiring to distribute five or
more kilograms of powder cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 846. Because of a prior felony drug
conviction, the statutory minimum was twenty years’ imprisonment. 21
U.S.C. § 841(b)(1)(A). The district court imposed the statutory minimum.
Mr. Dewberry appealed, and we affirmed. United States v. Dewberry,
790 F.3d 1022, 1036 (10th Cir. 2015). Mr. Dewberry then filed a motion to
vacate the conviction under 28 U.S.C. § 2255, and the district court denied
the motion. Mr. Dewberry wants to appeal. To do so, however, he needs a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). Accordingly, Mr.
Dewberry seeks a certificate of appealability, alleging ineffective
assistance of counsel for failing to
call Mr. Virok Webb as a witness,
object to the government’s allegation of a prior conviction for a
felony drug offense, and
challenge a statutory enhancement in the direct appeal.
We decline to issue a certificate of appealability.
I. Standard for a Certificate of Appealability
To determine whether to grant a certificate of appealability, we
consider the standard that would govern if the appeal were to proceed. If it
did, we would engage in de novo review, applying the same standard that
governed in district court. United States v. Snyder, 871 F.3d 1122, 1125
(10th Cir. 2017). Here, however, we do not engage in a full review of the
merits. Instead, we consider only whether the district court’s ruling was
debatable. Buck v. Davis, 137 S. Ct. 759, 774 (2017).
Mr. Dewberry would meet this minimal burden only if a reasonable
jurist could debate the merit of one or more of his claims. These claims
required Mr. Dewberry to show that his attorney’s actions had been
deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 688, 692
(1984); see also United States v. Challoner, 583 F.3d 745, 749 (10th Cir.
2009) (applying Strickland to appellate counsel).
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To prove a deficiency, Mr. Dewberry had to show that counsel’s
representation had fallen below an objective standard of reasonableness.
Strickland, 466 U.S. at 688. But a merits panel would presume that the
legal representation was adequate and that the attorney used reasonable
judgment. Challoner, 583 F.3d at 749. In light of this presumption, Mr.
Dewberry’s claims do not surpass the minimal threshold for a certificate of
appealability.
II. Failure to Call Mr. Webb to Testify
Mr. Dewberry argues that if his attorney had called Virok Webb to
testify, an acquittal would have been more likely. But even if Mr. Webb’s
testimony would have made a difference, Mr. Dewberry could not show a
deficiency in the representation.
Mr. Dewberry’s attorney had no opportunity to meet with Mr. Webb,
who denied multiple requests for an interview. The attorney would have
had to call Mr. Webb to the stand without knowing what he would say in
his testimony. This tactic would have been risky, and the attorney made a
strategic decision not to call Mr. Webb as a witness without knowing what
he would say. 1 Any reasonable jurist would regard this decision as a
reasonable exercise of judgment.
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As the district court recognized, calling Mr. Webb as a witness would
allow the government to reveal that he had bought cocaine from an
individual identified by others as Mr. Dewberry. United States v.
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III. Failure to Object to the Use of Prior Drug Felony
The government alleged that Mr. Dewberry was subject to an
enhanced minimum sentence because of a prior conviction for a felony
drug offense. See 21 U.S.C. § 841(b)(1)(A). A felony drug offense is “an
offense that is punishable by imprisonment for more than one year under
any law of the United States . . . that prohibits or restricts conduct relating
to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44). In light of this definition, the district
court ruled that Mr. Dewberry had a prior felony drug conviction, relying
on a conviction for conspiracy to distribute and possess with the intent to
distribute more than 100 kilograms of marijuana. United States v.
Dewberry, No. 4:07-cr-00727-CAS-7, Docket No. 159 (E.D. Mo. Sept. 11,
2008).
Mr. Dewberry argues that his counsel was deficient for failing to
object to the use of this prior drug conviction. According to Mr. Dewberry,
his prior conviction was not for a felony drug offense because he was
sentenced only to probation and home confinement. But the actual sentence
is irrelevant; what matters is the statutory maximum. 21 U.S.C. § 802(44).
Mr. Dewberry’s reliance on United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc) is misguided. In Simmons, the court stated that
Dewberry, No. 11-40078-06-JAR, 2018 WL 1456524, at *11 (W.D. Kan.
Mar. 23, 2018).
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the defendant “could not have received a sentence exceeding eight months’
community punishment” for his prior conviction. Id. at 243. Because Mr.
Dewberry’s prior conviction was for a crime punishable by imprisonment
for more than one year, he qualified for the enhancement. As a result,
Simmons is plainly inapplicable and no reasonable jurist would find a
deficiency based on the absence of an objection to the use of a prior drug
felony.
IV. Failure to Appeal an Enhancement
Finally, Mr. Dewberry alleges that his appellate counsel was
ineffective for failing to raise winning arguments.
To show that appellate counsel is ineffective for failing to raise an
issue, the omitted issue must have been “‘obvious from the trial record and
one which would have resulted in a reversal on appeal.’” United States v.
Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (emphasis in original)
(quoting United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995)).
The district court denied relief because Mr. Dewberry had failed to
identify the issues that his counsel should have appealed. He mentions only
one: that his attorney should have challenged the sentence enhancement.
But this argument probably would have failed on direct appeal because
Mr. Dewberry was convicted of a prior felony drug offense. See Part III,
above. Thus, his appellate attorney could not have effectively challenged
the enhancement. In these circumstances, no jurist could reasonably credit
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Mr. Dewberry’s claim of ineffective assistance for failing to raise an issue
on appeal.
V. Disposition
We decline to issue a certificate of appealability. In the absence of a
certificate, we dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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