United States v. Stover , 292 F. App'x 755 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 12, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-6202
v. W.D. Okla.
BLAKE HANKINS STOVER, (D.C. No. 5:04-CV-00646-M)
(D.C. No. 5:00-CR-00155-M-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Blake Hankins Stover, a federal prisoner represented by counsel, filed a 28
U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district
court dismissed the motion. Stover then filed a request for a certificate of
appealability (COA), which the court denied. Stover renews his requests for COA
in this Court. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1).
BACKGROUND
Stover was convicted by a jury of numerous counts involving the
manufacture and distribution of drugs. His conviction was affirmed on direct
appeal in an unpublished opinion. United States v. Stover, 57 Fed. Appx. 351
(10th Cir.), cert. denied, 539 U.S. 909 (2002). Stover filed a § 2255 motion
claiming ineffective assistance of appellate counsel for failure to raise allegedly
meritorious issues on direct appeal. The district court dismissed the motion. See
United States v. Stover, Nos. CR-00-155M, CIV-04-646M, 2007 WL 2363289
(W.D. Okla. Aug. 16, 2007). It concluded the omitted issues were not “dead
bang” winners and therefore, Stover failed to show his appellate counsel was
ineffective for failing to raise them in his direct appeal. See United States v.
Cook, 45 F.3d 388, 392 (10th Cir. 1995). Thereafter, the district court denied his
request for a COA.
CERTIFICATE OF APPEALABILITY
A COA is a jurisdictional pre-requisite to our review. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Stover makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336. Insofar as the
district court dismissed his habeas petition on procedural grounds, he must
demonstrate both that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations
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omitted). “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. We review the district court’s factual
findings for clear error and its legal conclusions de novo. English v. Cody, 241
F.3d 1279, 1282 (10th Cir. 2001).
“Section 2255 motions are not available to test the legality of matters
which should have been raised on direct appeal.” United States v. Warner, 23
F.3d 287, 291 (10th Cir. 1994) (citations omitted). When a petitioner “fails to
raise an issue on direct appeal, he is barred from raising the issue in a § 2255
proceeding, unless he establishes either cause excusing the procedural default and
prejudice resulting from the error or a fundamental miscarriage of justice if the
claim is not considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).
Ineffective assistance of appellate counsel can establish cause to overcome
the procedural bar. Id. Stover must show (1) his appellate counsel’s performance
was deficient and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). 1 “When a defendant alleges
his appellate counsel rendered ineffective assistance by failing to raise an issue on
1
“Although Strickland set forth standards for determining the effectiveness
of trial counsel, we have applied those same standards in assessing the
effectiveness of appellate counsel.” Cook, 45 F.3d at 394.
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appeal, we examine the merits of the omitted issue[s].” Cook, 45 F.3d at 392.
“The Sixth Amendment does not require an attorney raise every nonfrivolous
issue.” Id. at 394. Rather, counsel’s performance is ineffective when a “dead
bang” winner is omitted on appeal. Id. at 395.
The district court examined each issue raised by Stover and found not one
was a “dead bang” winner. Stover, 2007 WL 2363289 at *3-5. Stover reasserts
his arguments here but unfortunately provides an inadequate record for our
review. His appendix contains individual pages from the trial transcript without
offering the entire transcript, or at least the full transcript from the witnesses
whose testimony he references. Without a transcript of the relevant proceedings,
we cannot determine the merit of his claims and must affirm the district court. 2
See United States v. Dago, 441 F.3d 1238, 1251 (10th Cir. 2006) (stating
counseled appellants have a duty to provide an adequate record and the failure to
do so will result in the affirmation of the district court’s judgment). For example,
Stover states appellate counsel was ineffective because he failed to raise
sufficiency of the evidence on two charges and for failing to address several
categories of inadmissible evidence. We must review his claims in the light most
favorable to the government and “presume that counsel’s actions constituted
sound strategy.” Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005). Given
2
We note during the course of proceedings in this Court, we issued
Stover’s counsel several deficiency notices and counsel specifically filed a notice
stating a transcript was not necessary.
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this standard, Stover’s submission of random selected pages of the trial transcript
cannot establish his claim. Because Stover has not provided a sufficient record to
demonstrate the district court’s dismissal is reasonably debatable, he has failed to
make a sufficient showing that he is entitled to a COA.
We DISMISS his application for a COA.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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