(D. Kan.) (D.C. Nos. 6:10-CV-01111-MLB and 6:07-CR-10161-MLB-1)
The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
ORDER DENYING CERTIFICATE OF APPEALABILITY,
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Kappelle Simpson-El, a federal prisoner proceeding pro se,*fn1
wants to appeal from the district court's denial of his 28
U.S.C. § 2255 motion to vacate, set aside or correct sentence. His
petition was based upon alleged ineffectiveness of trial counsel,
including that counsel misadvised him to abandon a plea agreement. The
district court concluded he did not make "a substantial showing of the
denial of a constitutional right," 28 U.S.C. § 2253(c)(2). Because
that decision is not even debatably incorrect we deny his request for
a Certificate of Appealability (COA).
Simpson-El was charged in an indictment alleging he and four others stole cars --mainly Cadillacs -- from car lots in Kansas, Oklahoma and Missouri, transported the cars to Wichita, Kansas, and replaced the VINS in order to sell them on the internet and by other means. On January 14, 2008, pursuant to a plea agreement with the government, he pled guilty to four counts of disposing of a stolen vehicle, one count of possession of a vehicle with an altered VIN number, six counts of removing VIN numbers from cars, seven counts of transportation of stolen vehicles and five counts of wire fraud. Prior to sentencing, however, Simpson-El received the presentence report (PSR) and requested to withdraw his plea. He did not include the withdrawn plea agreement or the first PSR in the record. At his hearing to withdraw, he explained the information provided by his co-defendants to the government was inaccurate and he felt he needed to go to trial to establish his actual role in events. The court granted his request.
As a result Simpson-El was found guilty of one count of possession of a vehicle with an altered VIN number, seven counts of removing or tampering with a vehicle's VIN number, five counts of disposing of a stolen car, eight counts of transporting a stolen vehicle, one count of transporting stolen equipment and three counts of wire fraud. After considering his objections to the post-trial PSR, the district court determined the Guideline range was 100 to 125 months in prison. It concluded, however, that a downward variance was warranted and sentenced Simpson-el to 72 months in prison. Simpson-El appealed and we affirmed his conviction and sentence. See United States v. Simpson-El, 345 F. App'x 350 (10th Cir. 2009).
Simpson-El's § 2255 motion argues his counsel was constitutionally ineffective by advising him to go to trial (thereby abandoning the plea agreement) and failing to raise appropriate objections at sentencing. The district court denied his § 2255 motion because he had failed to show his counsel's conduct was deficient and even if counsel's performance was deficient, he had failed to show prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish ineffective assistance of counsel in violation of the Sixth Amendment, a defendant must show (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense). The court refused to consider a number of Simpson-El's claims because he raised them for the first time in a reply brief. It determined defense counsel had, in fact, raised the sentencing objections Simpson-El claimed were omitted in three of the four claims in his § 2255 motion and he had not appealed the court's overruling of those objections. The court concluded Simpson-El's fourth claim, the failure to object to the loss and restitution calculations, was without merit.
Simpson-El filed a motion for reconsideration, arguing the court had not addressed all of his arguments
In Movant's original section 2255 motion, Movant raised eight claims of ineffective assistance of counsel: (1) failure to investigate and properly file an objection pursuant to United States Sentencing Guideline (U.S.S.G.) § 4A1.1(d); (2) failure to raise mitigating addiction factor;*fn2 (3) failure to properly object to U.S.S.G. § 3B1.1(c) enhancement; (4) failure to investigate prior misdemeanor; (5) failure to investigate and raise specific arguments to U.S.S.G. § 2B1.1(b)(1)(H); (6) failure to properly monitor base level; (7) failure to request downward departure; and (8) erroneous advice as to proceed to trial.
(R. Vol. 1 at 220-21.) The court denied the motion, stating: "Even if the court was inclined to buy one or even all of defendant's ineffective assistance claims, regardless of how defendant counts them (and the court finds that defendant has failed on each one of them) the outcome would not be different because defendant would not have received a lesser sentence." (Id. at 225-26.) ...