United States v. Jermaine Mitchell

FILED
NOT FOR PUBLICATION MAY 22 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-17002

Plaintiff - Appellee, D.C. Nos. 3:11-cv-00056-ECR
3:04-cr-00010-ECR
v.

JERMAINE ALONZO MITCHELL, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding

Submitted May 15, 2012 **

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

Federal prisoner Jermaine Alonzo Mitchell appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2255 motion for habeas relief. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

Mitchell contends that his counsel rendered ineffective assistance by failing

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to strike a prospective juror for cause. This contention fails because Mitchell has

demonstrated neither deficient performance nor prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

Mitchell also contends that his counsel rendered ineffective assistance by

failing to object that his sentence violated Apprendi v. New Jersey, 530 U.S. 466

(2000). This claim fails for lack of prejudice under Strickland, because the

Supreme Court has held that “cocaine base” under 21 U.S.C. § 841 encompasses

cocaine in its chemically basic form, not just “crack cocaine.” See DePierre v.

United States, 131 S. Ct. 2225, 2237 (2011).

Mitchell further contends that the trial judge committed structural error by

failing to excuse a prospective juror for actual bias. Even if this argument were not

forfeited by Mitchell’s failure to raise it in his 28 U.S.C. § 2255 motion, our

conclusion in United States v. Mitchell, 568 F.3d 1147, 1152-54 (9th Cir. 2009),

precludes reconsideration of the issue under the law of the case doctrine. See

United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999).

Mitchell finally contends that the trial court erred by sentencing him for

possession of “crack cocaine” without finding beyond a reasonable doubt that the

cocaine base was actually “crack cocaine.” Even if this claim were not forfeited by

Mitchell’s failure to raise it in his section 2255 motion, the claim fails in light of

DePierre, 131 S. Ct. at 2237.

AFFIRMED.

2 11-17002