United States v. Armstrong, 10th Cir. (1997)
United States v. Armstrong, 10th Cir. (1997)
JUN 19 1997
PATRICK FISHER
Clerk
No. 96-3273
(D.C. No. 96-3261-EEO)
(D. Kan.)
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
jurists of reason, a court could resolve the issues differently, or the questions
presented are deserving of further proceedings. See Barefoot, 463 U.S. at 893
n.4.
Armstrong contends trial counsel was ineffective because of failure to
properly present a defense based upon Armstrong's alleged voluntary intoxication
at the time of the charged offense. More specifically, he argues counsel failed to
investigate, prepare, and present a defense based on the voluntary intoxication,
and failed to insure the giving of appropriate jury instructions relating to the law
of "attempt," and in particular instructions relating to specific intent and
Armstrong's intoxication defense. To prevail on his claim of ineffective
assistance of counsel, Armstrong must demonstrate that counsel's performance
fell below an objective standard of reasonableness and that counsel's deficient
performance was so prejudicial "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).
Although voluntary intoxication may be established as a defense to a
specific intent crime, it is not a defense to a general intent crime. See United
States v. Sands, 968 F.2d 1058, 1064 (10th Cir. 1992), cert. denied 506 U.S. 1056
(1993); United States v. Soundingsides, 820 F.2d 1232, 1242 (10th Cir. 1987).
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(9th Cir. 1995) ("While the district court's decision to give a specific intent
instruction for a general intent crime may have created a 'windfall' for the
defendant, it did not entitle him to a diminished capacity defense, which is only
cognizable for specific intent crimes."), cert. denied 116 S. Ct. 749 (1996).
Armstrong's application for a certificate of appealability is DENIED and
this appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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