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Filed: Patrick Fisher
Filed: Patrick Fisher
FEB 24 2000
PATRICK FISHER
Clerk
v.
NEWTON O. BEY,
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.
Because defendants notice of appeal was filed one day late, we questioned
our jurisdiction over this appeal. After examining the record, we conclude
jurisdiction is proper. Defendant placed his application for a certificate of
appealability in the prison mail system within the time allowed to file an appeal.
Such an application operates as the functional equivalent of a notice of appeal.
See Knox v. Wyoming , 959 F.2d 866, 867-68 (10th Cir. 1992). As a pro se
prisoners notice of appeal is deemed filed when it is delivered to prison officials
for forwarding to the district court,
see Fed. R. App. P. 4(c), defendants appeal
was timely filed, and we have jurisdiction.
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The record also shows that on May 6, 1999, the district court granted
defendant in forma pauperis status pursuant to 28 U.S.C. 1915(b), and ordered
partial payments to be forwarded to the court by his custodian. In
United States
v. Simmonds , 111 F.3d 737, 743 (10th Cir. 1997), we held that the Prisoner
Litigation Reform Act, which amended 1915, does not apply to habeas actions.
Therefore, we vacate that portion of the district courts order that ordered partial
fee payment in accordance with the amended 1915.
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range; (3) would take no position on the issue of sentence enhancement for a
supervisory role; (4) would provide pertinent information to the United States
Probation Office concerning defendants involvement in the offense; and
(5) would be entitled to correct any factual inaccuracies raised by defendant at
the time of sentencing.
defendant had not shown he was prejudiced by the withdrawal of his objection;
(3) that his trial attorney was not ineffective in failing to argue at sentencing that
the government had not shown that crack cocaine was involved; (4) that his
appointed attorney in the first 2255 proceeding was not ineffective for failing
to challenge the supervisory role enhancement or the governments alleged breach
of the plea agreement; and (5) that his appointed appellate attorney was not
ineffective in failing to appeal the enhancement for a supervisory role or the
governments alleged breach of the plea agreement.
Nos. 94-200075-01, 98-3299-KHV, 1998 WL 919127 at *4, *7 (D. Kan. Dec. 30,
1998) (quotation omitted). This appeal followed.
Defendant argues his trial attorney was ineffective in advising him to
withdraw his objection to the three-level supervisory enhancement, which he
alleges was based on false information, and in failing to file a direct appeal on his
behalf. He also argues the government breached the plea agreement during the
evidentiary hearing on his 2255 motion, by stating that if the case came back for
resentencing the government would submit evidence justifying the enhancement.
Before we may review these claims, defendant must obtain a certificate of
appealability by making a substantial showing of the denial of a constitutional
right. 28 U.S.C. 2253(c)(2). We conclude he has not made this showing.
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118 F.3d 686, 691 (10th Cir. 1997). To succeed on his claim, defendant must
prove that his attorneys performance was deficient, and that the deficient
performance prejudiced defendant.
Id. at 689.
Even if counsels advice turns out to have been wrong, it was not constitutionally
ineffective unless it was completely unreasonable . . . so that it [bore] no
Hatch v. Oklahoma , 58 F.3d 1447,
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to negate the information in the PSIR would involve perjury, and might cause the
government to seek an enhancement based on defendants obstruction of justice.
We agree with the district court that this decision was sound strategy, as
there is every indication that even if defendant could prove that the PSIRs
information regarding his participation in the October 15, 1993 sale and his
alleged supervision of co-defendant Beadles was incorrect, the United States
Probation Office had other evidence to support the supervisory role enhancement.
Under these circumstances, the court might well have withheld the three-level
reduction for acceptance of responsibility and still assessed a three-level
enhancement for defendants supervisory role. Because defendant cannot show
that counsels advice was completely unreasonable,
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Finally, defendant has not shown that the governments statement about
what it intended to prove if he were resentenced denied him a constitutional right.
At this point in time, the government has not presented any evidence regarding
the supervisory role enhancement, and therefore no breach of the plea agreement
can be shown. We do not consider defendants argument regarding
Fed. R. Crim. P. 32(c) because it was not raised to the district court.
The portion of the district courts order of May 6, 1999, ordering partial
payment of fees, is VACATED. Defendants application for a certificate of
appealability is DENIED, and the appeal is DISMISSED.
Bobby R. Baldock
Circuit Judge
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