United States v. Easterling , 137 F. App'x 143 ( 2005 )


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  •                                                                                    F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    June 24, 2005
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                              No. 04-6341
    JOHN DAVID EASTERLING,                                 (D.C. Nos. 00-CR-80-A and
    03-CV-1406-A)
    Defendant-Appellant.                                   (W. D. Okla.)
    ORDER
    Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
    Defendant John David Easterling seeks a certificate of appealability (COA) in
    order to challenge the district court’s denial of his motion to vacate, set aside, or correct
    his sentence pursuant to 
    28 U.S.C. § 2255
    . Because Easterling has failed to make “a
    substantial showing of the denial of a constitutional right,” 
    28 U.S.C. § 2253
    (c)(2), we
    deny his request and dismiss the appeal.
    On June 21, 2000, Easterling was indicted on one count of possessing a firearm
    after having been convicted of a felony, in violation of 
    18 U.S.C. § 922
    (g)(1). Easterling
    moved to suppress the firearm that formed the basis of the § 922(g)(1) charge. That
    motion was denied, and the case proceeded to trial, where Easterling was found guilty by
    a jury as charged in the indictment. On May 9, 2001, Easterling was sentenced to a term
    of imprisonment of 235 months. This court affirmed Easterling’s conviction and sentence
    on direct appeal. United States v. Easterling, No. 01-6187, 
    2002 WL 568189
     (10th Cir.
    Apr. 17, 2002).
    On October 6, 2003, Easterling, proceeding pro se, filed a motion seeking to
    vacate, set aside, or correct his sentence pursuant to 
    28 U.S.C. § 2255
    . Counsel was
    subsequently appointed to represent Easterling. In his § 2255 motion, Easterling asserted
    his trial counsel was ineffective for (1) failing to object to testimony that Easterling had
    previously been in federal prison, (2) failing to object to a leading question asked of
    witness Darryl Skaggs by the prosecution, (3) arguing his motion for judgment of
    acquittal in the presence of the jury, (4) failing to ask for a jury instruction on the issue of
    whether commerce had been affected by the firearm at issue, (5) failing to object to the
    trial court’s “impromptu supplementation” of the jury instructions, (6) failing to
    investigate potential mitigating factors that would have warranted a downward departure
    at sentencing, (7) failing to conduct a proper investigation in support of the motion to
    suppress evidence, and (8) failing to argue that the applicability of the Armed Career
    Criminal Act (ACCA) must be alleged in the indictment and proven beyond a reasonable
    doubt at trial. In addition to his claims of ineffective assistance, Easterling also argued
    that (1) given the small amount of marijuana involved in his prior Oklahoma state
    conviction for delivery of marijuana, application of the ACCA to his case was contrary to
    congressional intent, and (2) § 922(g) was contrary to the Second Amendment and thus
    2
    unconstitutional. Easterling subsequently added a claim challenging his sentence in light
    of the Supreme Court’s decision in Blakely v. Washington, 
    124 S.Ct. 2531
     (2004).
    On August 24, 2004, the district court conducted an evidentiary hearing on
    Easterling’s § 2255 motion. At the conclusion of the hearing, the district court ruled from
    the bench and denied Easterling’s motion in its entirety. In doing so, the district court
    addressed and rejected each of Easterling’s claims of ineffective assistance:
    1) The district court concluded that Easterling’s trial counsel failed to
    adequately inform Easterling of his right to testify prior to the suppression
    hearing, but concluded that Easterling was not prejudiced thereby because
    the result of the suppression hearing would have been the same even if
    Easterling had testified. More specifically, the district court concluded that
    Easterling’s testimony would have supported the district court’s earlier
    conclusion that Easterling lacked a reasonable expectation of privacy in the
    room where the firearm was found by law enforcement authorities.
    2) The district court concluded that trial counsel was not ineffective for
    failing to call Ron Hunter as a witness because Hunter lacked sufficient
    personal knowledge to testify about the arrangements Easterling had made
    with Skaggs and Merritt to live in the office. App. at 16.
    3) The district court concluded that trial counsel was not ineffective for
    failing to object to the introduction of evidence indicating that Easterling
    had previously been in federal prison. Id. at 17. In reaching this
    conclusion, the district court noted that “Easterling declined to stipulate
    about a prior conviction, satisfying one of the elements of the offense in
    question, so it was obligatory upon the government to introduce proof of
    that, and they did. And this is a totally self-inflicted wound on the part of
    Mr. Easterling, and no prejudice can flow from the government’s
    introducing evidence which is absolutely indispensable to complete the
    elements of the offense in question.” Id. Moreover, the district court noted
    that it “very emphatic[ally]” instructed the jury that it “could not draw any
    inference” from the prior conviction that “Mr. Easterling has some kind of
    generalized bad character” or that “it is more likely that he committed the
    offense in question.” Id.
    3
    4) The district court concluded trial counsel was not ineffective for failing
    to object to a leading question asked by the prosecutor. Id. at 18 (“if that
    were a basis for granting relief, there isn’t a single civil or criminal case
    I’ve ever presided over that could survive scrutiny.”).
    5) As for trial counsel’s failure to argue the motion for judgment of
    acquittal outside the presence of the jury, the district court concluded “there
    couldn’t have been any prejudice” resulting therefrom because the motion
    was argued at the bench outside the hearing of the jury and the arguments
    were extremely brief. Id. at 19.
    6) The district court concluded that trial counsel was not ineffective for
    failing to object to the interstate commerce element of the district court’s
    instruction on the § 922(g) charge. Id. More specifically, the district court
    noted that it “gave a standard instruction” and would have overruled any
    objection to that instruction. Id.
    7) The district court concluded that trial counsel was not ineffective for
    failing to object to the district court’s use of an example when it instructed
    the jury on the nature of circumstantial evidence. Id. According to the
    district court, “the instruction was entirely correct” and “the nature of the
    instruction was beneficial to Mr. Easterling rather than damaging to him
    because the government’s case was a circumstantial case.” Id.
    8) As for Easterling’s assertion that his counsel was ineffective for failing
    to investigate potential mitigating evidence in support of a motion for
    downward departure, the district court noted that Easterling’s counsel had,
    in fact, sought a downward departure at the time of sentencing and that
    request had been denied. According to the district court:
    At the time of sentencing I didn’t engage in any downward
    departure, and I wouldn’t. And I said at the time that this was
    a matter of sentencing discretion, there’s absolutely nothing
    present in this case that would lead me to exercise any
    discretion and grant a downward departure. * * * I was a
    little bit surprised at sentencing to hear an argument for a
    downward departure when the argument simply could not
    have been well-taken, given the evidence in the case and the
    prior record.
    Id. at 19-20.
    4
    With respect to Easterling’s ACCA-related arguments, the district court concluded it was
    clear, under the plain text of the ACCA, that his prior Oklahoma state conviction for
    delivery of marijuana fell within the scope of the ACCA and qualified him for its
    application. Id. at 20. The district court concluded there were “no Apprendi issues . . .
    because what occurred in this case to elevate the sentence was an examination of prior
    convictions, which according to Apprendi is perfectly proper for the Court, it’s not an
    issue reserved for the jury.” Id. at 20-21. Lastly, the district court concluded the Supreme
    Court’s decision in Blakely was not retroactive and thus did not apply in the context of
    Easterling’s § 2255 motion. Id. at 21.
    Easterling subsequently sought a COA from the district court. The district court
    denied that request. Easterling has now applied for a COA from this court. To be entitled
    to a COA, Easterling must make “a substantial showing of the denial of a constitutional
    right.” 
    28 U.S.C. § 2253
    (c)(2). This requires Easterling to demonstrate “that reasonable
    jurists could debate whether (or, for that matter, agree that) the petition should have been
    resolved in a different manner or that the issues presented were adequate to deserve
    encouragement to proceed further.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003)
    (quotations omitted).
    We find no basis for granting a COA with respect to Easterling’s ineffective
    assistance claims. Specifically, we have reviewed the record on appeal, with particular
    emphasis on Easterling’s § 2255 motion and the transcript of the district court’s bench
    5
    ruling, and find no basis for concluding that reasonable jurists could debate whether
    Easterling’s individual claims of ineffective assistance should have been resolved in a
    different manner or that any of those claims were adequate to deserve appellate review.
    The same holds true for Easterling’s remaining claims. With respect to the district
    court’s application of the ACCA, the record on appeal establishes that the Oklahoma
    statute under which Easterling was convicted carried a maximum term of imprisonment
    of ten years, and thus a violation of that statute qualified as a “serious drug offense” for
    purposes of the ACCA. See 
    18 U.S.C. §924
    (e)(2)(A)(ii) (defining term “serious drug
    offense,” as used in the ACCA). Further, the determination of whether a prior felony
    constitutes a “serious drug offense” under the ACCA is a question of law and not fact,
    and thus there is no requirement that the existence of such prior convictions be charged in
    the indictment or proven to a jury under a beyond a reasonable doubt standard. See
    United States v. Serrano, 
    406 F.3d 1208
    , 1220 (10th Cir. 2005). As for Easterling’s
    Blakely arguments, it is clear that neither Blakely nor United States v. Booker, 
    125 S.Ct. 738
     (2005), which Easterling cites in his application for a COA, announced a new rule of
    constitutional law made retroactive by the Supreme Court on collateral review. E.g.,
    United States v. Bellamy, No. 04-5145, 
    2005 WL 1406176
    , at *3 (10th Cir. June 16,
    2005) (concluding “Booker does not apply retroactively to initial habeas petitions”);
    United States v. Price, 
    400 F.3d 844
    , 849 (10th Cir. 2005), (holding that “Blakely does
    not apply retroactively to convictions that were already final at the time the [Supreme]
    6
    Court decided Blakely, June 24, 2004.”). Finally, although the district court did not
    expressly address in its bench ruling Easterling’s argument that § 922(g)(1) is facially
    unconstitutional because it amends the Second Amendment without the required
    ratification, we find no basis for granting a COA with respect to that claim. See United
    States v. Baer, 
    235 F.3d 561
    , 564 (10th Cir. 2000) (rejecting Second Amendment
    challenge to § 922(g)(1)).
    The request for a COA is DENIED and the appeal is DISMISSED. Appellant’s
    motion to proceed in forma pauperis is denied.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    7
    

Document Info

Docket Number: 04-6341

Citation Numbers: 137 F. App'x 143

Judges: Briscoe, Lucero, Murphy

Filed Date: 6/24/2005

Precedential Status: Precedential

Modified Date: 8/3/2023