United States v. Harris, 10th Cir. (2010)

FILED
United States Court of Appeals

Tenth Circuit
March 3, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 09-5103
(D.C. No. 4:08-CV-00327-JHP-PJC
and 4:04-CR-00160-JHP-1)
(N.D. Okla.)
DEMARIO TERREL HARRIS,

Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
DeMario Harris, a federal prisoner proceeding pro se, seeks a Certificate of

Appealability (COA) to appeal the district courts denial of his 28 U.S.C.
2255 petition. With jurisdiction pursuant to 28 U.S.C. 1291 and 2253(a), we
DENY his application for a COA and DISMISS his appeal.
This Order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1. After examining the briefs and the appellate record, this
three-judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this matter. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
I. BACKGROUND
A jury convicted Mr. Harris on one count of possessing cocaine base with
the intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A),
and one count of possessing a firearm after having previously been convicted of a
felony, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2). He was sentenced to
a mandatory term of life in prison for the drug charge and a concurrent 120-month
term for the gun charge. We rejected his claims on direct appeal. See United
States v. Harris, 223 F. Appx 747 (10th Cir. 2007). Mr. Harris then filed with
the district court a motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. 2255, contending he had received ineffective assistance from his trial
and appellate attorneys. The district court denied the motion and also denied Mr.
Harriss motion for a COA. Mr. Harris now seeks a COA from this court. He
also has filed a motion to proceed on appeal in forma pauperis.
II. DISCUSSION
A defendant may not appeal the district courts denial of a 2255 petition
without first obtaining a COA from this court. 28 U.S.C. 2253(c)(1)(B). We in
turn may only issue a COA where the applicant has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district courts resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
-2-
further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Coppage v.
McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Unless we grant a COA, we lack
jurisdiction to resolve the merits of a habeas appeal. Miller-El, 537 U.S. at 342.
Because Mr. Harriss COA application rests on claims of ineffective
assistance of counsel, in order to determine if he can make a substantial showing
of the denial of a constitutional right we must undertake a preliminary analysis of
Mr. Harriss claims in light of the two-part test for ineffective assistance outlined
in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner
must show, first, that counsels performance was deficientthat the
representation fell below an objective standard of reasonableness as measured
by prevailing professional norms. Id. at 68788. Second, the petitioner must
establish prejudicethat there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different.
Id. at 694; see also Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008), cert.
denied, 130 S. Ct. 133 (2009). We may review these two components in any
order, and need not address both if the defendant makes an insufficient showing
on one. Strickland, 466 U.S. at 697.
The district court found that Mr. Harris could not meet this two-pronged
test for any of his ineffective assistance claims. On appeal, Mr. Harris raises five
issues, supported by largely the same arguments rejected by the district court.
Because he is proceeding pro se, we construe his filings liberally. Erickson v.
-3-
Pardus, 551 U.S. 89, 94 (2007) (per curiam). Even with this solicitous
consideration, however, we conclude that Mr. Harris cannot make a substantial
showing of the denial of a constitutional right as to any of the issues he raises, so
we cannot issue a COA and we must dismiss his appeal for lack of jurisdiction.
Mr. Harris first contends that the district court violated his constitutional
rights by failing to issue a written order explaining its reasons for denying his
2255 petition. This claimwhich we note is not at all an argument about
ineffective assistance of counselmust be rejected, for we have repeatedly held
that challenges to post-conviction procedures fail to state constitutional claims
cognizable in a federal habeas proceeding. United States v. Dago, 441 F.3d
1238, 124849 (10th Cir. 2006) (holding that the district courts
seven-and-a-half-year delay in denying Dagos 2255 petition was not a denial of
due process sufficient to justify granting Dago habeas relief). Thus, Mr. Harris
cannot make a substantial showing of the denial of a constitutional right, and we
must deny a COA on Issue I. 1
In what he styles as Issues II and III on appeal, Mr. Harris argues that his
trial attorney failed to challenge the methodology used by the governments
chemist to calculate the amount of drugs charged to his possession. According to
Even if we were inclined to consider the claim, it is not clear which

orders Mr. Harris asserts that the district court failed to publish. We note that the
district court did include a written order with its denial of Mr. Harriss 2255
petition. See R., Vol. I, at 17383 (Order, filed July 6, 2009).
-4-
Mr. Harris, the chemist incorrectly weighed the drugs along with their packaging
materials, producing an inflated drug quantity and subjecting him to a greater
sentence than warranted. Mr. Harris also alleges that his appellate counsel was
ineffective for failing to challenge the drug quantity on appeal. The district court
rejected this claim, noting that Mr. Harriss sentence was based upon the fact he
was a career offender as opposed to the quantity of drugs possessed. R., Vol. I,
at 178 (Order, filed July 6, 2009). Further, the district court pointed out that Mr.
Harris had claimed at trial that the government could not prove he had ever
possessed the drugs, so the quantity error he now asserts could not have impacted
his defense. The district court thus held that Mr. Harris could not establish that
counsel was ineffective for failing to challenge the drug quantity and could not
establish prejudice. Mr. Harris provides no reason to think that reasonable jurists
could disagree with the district courts conclusion, and we must deny a COA on
Issues II and III.
With regard to Issue IV, Mr. Harris alleges that his attorney failed to call as
a witness Ms. Sharon Ashe, his state court trial attorney. Mr. Harris contends that
Ms. Ashe possessed information about prior acts of misconduct by Tulsa Police
Officer Bill Yelton, who was involved in Mr. Harriss arrest. This information,
Mr. Harris contends, could have been used to impeach Officer Yeltons credibility
at trial. The district court rejected this claim, finding that Mr. Harris did not
offer anything other than conclusory allegations about alleged wrongdoing by
-5-
Officer Yelton. Id. Further, the district court noted that Mr. Harriss federal
court trial counsel, Stanley Monroe, submitted an affidavit stating that he did
speak with Ms. Ashe, and obtained funding for an independent experienced
investigator to pursue all leads that she provided. Id. at 179. Thus, the district
court held that Mr. Harris could not establish error or prejudice in Mr. Monroes
actions. Mr. Harris provides no reason to think that reasonable jurists could
debate this conclusion; accordingly, we must deny a COA on Issue IV.
Finally, Mr. Harris alleges in Issue V that Mr. Monroe failed to investigate
the backgrounds of Officer Yelton and another officer, Jeff Henderson. 2 At trial,
Mr. Monroe attempted on cross-examination to ask Officer Yelton if he had ever
been subjected to any disciplinary proceedings for making out false overtime
claims. Aplt. Br., Attach G, at 79. When the prosecutor objected that Mr.
Monroe could not substantiate such an allegation, Mr. Monroe stated I dont
have any specific evidence. It was kind of the courthouse rumor mill information
. . . its my understanding hes been questioned about it before in other
proceedings. Id. The district court foreclosed the proposed line of questioning
absent more specific information. On collateral attack, Mr. Harris alleges that
Mr. Monroes ill-preparedness violated his Sixth Amendment rights. The district
2
Mr. Harris does not specify the nature of his claims involving Officer
Henderson. Merely mentioning his name is not enough to preserve appellate
review of the issue. See, e.g., United States v. Pursley, 577 F.3d 1204, 1231 n.17
(10th Cir. 2009) (holding that a skeletal reference is insufficient to raise . . . a
discrete appellate issue).
-6-
court disagreed and held that Mr. Harris could not establish prejudice under
Strickland because he could not provide any evidence to establish that Officer
Yelton was, in fact, ever suspended or disciplined for anything. R., Vol. I, at
181. Reasonable jurists could not debate this conclusion, and we must deny a
COA on this claim.
III. CONCLUSION
Mr. Harris cannot make a substantial showing of the denial of a
constitutional right arising from any of his claims of ineffective assistance of
counsel. Therefore, we DENY a COA for each of his five issues and, lacking
jurisdiction to proceed further, DISMISS his appeal. We GRANT his motion to
proceed on appeal in forma pauperis.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES OF AMERICA,

DEMARIO TERREL HARRIS,

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

DeMario Harris, a federal prisoner proceeding pro se, seeks a Certificate of

Even if we were inclined to consider the claim, it is not clear which

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