United States v. Rodney Woods , 714 F. App'x 455 ( 2018 )

Case: 16-40650 Document: 00514385971 Page: 1 Date Filed: 03/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40650
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
March 14, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RODNEY LEWIS WOODS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CV-716
USDC No. 4:11-CR-106-8
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Rodney Lewis Woods, federal prisoner # 18898-
078, was convicted in 2013 of conspiracy to possess with intent to deliver 100
kilograms or more of marijuana and was sentenced as a career offender under
U.S.S.G. § 4B1.1(a) to 200 months of imprisonment. He filed a motion with
this court for a certificate of appealability (COA) to appeal the denial of his 28
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-40650
U.S.C. § 2255 motion challenging his sentence. We granted a COA on one issue
only: whether Woods’s attorney rendered ineffective assistance by failing to
challenge the enhancement on the ground that Woods’s state conviction for
delivery of a simulated controlled substance was not a controlled substance
offense for purposes of the § 4B1.1 enhancement.
The grant of a COA has no bearing on the ultimate success of an appeal
after full consideration. See Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003).
Our review is limited to issues for which a COA has been granted. See 28
U.S.C. § 2253(c); United States v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998).
Regarding the issue for which a COA was granted, Woods argues that
his attorney was ineffective for failing to challenge the simulated controlled
substance offense on the ground that the “simulated” substance was not a
controlled substance or counterfeit drug in light of United States v. Franklin,
No. 97-40160, 1997 WL 574822, at *1-2 (5th Cir. Aug. 18, 1997) (unpublished).
Woods cannot succeed on that basis because it would have been foreclosed by
United States v. Crittenden, 372 F.3d 706, 709-10 (5th Cir. 2004). Counsel is
not obligated to raise a meritless objection. See Green v. Johnson, 160 F.3d
1029, 1037 (5th Cir. 1998).
Woods argued in his § 2255 motion that his counsel rendered ineffective
assistance by failing to argue that his prior Texas conviction for delivery of a
simulated controlled substance was not a controlled substance offense under §
4B1.1 because, unlike the Texas statute at issue, the relevant Guidelines did
not define a controlled substance offense as including offers to sell. But, Woods
does not re-urge that argument here. Although pro se briefs are afforded
liberal construction, even pro se litigants must brief arguments to preserve
them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Woods has thus
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abandoned this argument. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Woods further asserts that his trial counsel rendered ineffective
assistance by “failing to argue that Texas Health & Safety Code Annotated,
§ 482.001(4)”––which defines simulated controlled substance––“was overly
broad and could not be applied to enhance” his sentence in light of Mathis
v. United States, 136 S. Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir.),
supplemented by 854 F.3d 284 (5th Cir. 2017). Woods has not shown that
counsel’s performance was deficient under Strickland v. Washington, 466 U.S.
668, 687 (1984), as those cases were decided long after Woods was sentenced.
See United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009).
Woods also seeks to raise a stand-alone claim challenging his sentence
as a career offender in light of Mathis, Hinkle and Tanksley. Woods did not
raise that claim in the district court, so we will not consider it here. See
Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003). Finally, Woods seeks
a COA regarding whether his attorney was ineffective in failing to argue that
his prior Texas conviction for possession with intent to deliver a controlled
substance did not qualify as a controlled substance offense for purposes of the
career offender enhancement. We deny that request on its merits. See 28
U.S.C. § 2253(c).
The district court’s judgment is AFFIRMED.
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