United States v. Young , 489 F. App'x 250 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 16, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 11-1433
(D.C. No. 1:10-CR-00493-MSK-1)
TIMOTHY DOYLE YOUNG, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
In this direct criminal appeal, Timothy Doyle Young, appearing pro se,
challenges his conviction on one count of assault of a federal officer or employee with a
deadly weapon.1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we dismiss Mr.
*After examining Appellant’s brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Young is proceeding pro se, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
Continued . . .
Young’s appeal.
Mr. Young is an inmate at the United States Penitentiary-Administrative
Maximum in Florence, Colorado. On November 24, 2009, Mr. Young attacked a federal
correctional counselor and attempted to stab him with a homemade metal knife. The
attack was recorded on surveillance video.
On September 15, 2010, Mr. Young was indicted on one count of assault of a
federal officer or employee with a deadly weapon, in violation of 18 U.S.C. §§ 111(a)(1)
and (b). Mr. Young pled not guilty and requested a jury trial.
During trial, the Government presented evidence of the attack, including
surveillance video and testimony from correctional officers. Additionally, Mr. Young
testified about the incident and admitted that he had attempted to stab the correctional
counselor. See ROA, Vol. II, at 190-91. The jury found Mr. Young guilty. On August
19, 2011, the United States District Court for the District of Colorado sentenced Mr.
Young to 240 months of imprisonment. Mr. Young filed a timely notice of appeal
challenging his conviction.
On direct appeal, Mr. Young argues that his “conviction must be reversed”
because of ineffective assistance of trial counsel. Aplt. Br. at 1. We have repeatedly
stated that “[i]neffective assistance of counsel claims should be brought in collateral
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).
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proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th
Cir. 1995) (en banc); see also Massaro v. United States, 538 U.S. 500, 504-05 (2003).
Thus, “when brought on direct appeal, ineffective assistance of counsel claims are
presumptively dismissible, and virtually all will be dismissed.” United States v. Trestyn,
646 F.3d 732, 741 (10th Cir. 2011) (quotations omitted).
Although we have “considered ineffective assistance of counsel claims on direct
appeal in limited circumstances, [we have generally done so] only where the issue was
raised and ruled upon by the district court and a sufficient factual record exists.” United
States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). “An opinion by the district court
is a valuable aid to appellate review for many reasons, not the least of which is that in
most cases the district court is familiar with the proceedings and has observed counsel’s
performance, in context, first hand.” Galloway, 56 F.3d at 1240. Thus, “even if the
record appears to need no further development, the claim should still be presented first to
the district court.” Id.The district court has not had an opportunity to address Mr. Young’s ineffective
assistance of counsel claim. And after reviewing Mr. Young’s briefing and the record in
this case, we see no reason to depart from the general rule that ineffective assistance of
counsel claims must be asserted in a collateral proceeding, in this instance a petition
under 28 U.S.C. § 2255.
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For these reasons, we dismiss Mr. Young’s appeal.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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