Nos. 5:16-CV-04115-JAR and 5:11-CR-40078-JAR-6 (D. Kan.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
E. BACHARACH, CIRCUIT JUDGE
Kennin Dewberry was convicted of (1) conspiring to distribute
280 grams or more of crack cocaine and (2) conspiring to
distribute five or more kilograms of powder cocaine.
See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 846. Because of a prior
felony drug conviction, the statutory minimum was twenty
years' imprisonment. 21 U.S.C. § 841(b)(1)(A). The
district court imposed the statutory minimum.
Dewberry appealed, and we affirmed. United States v.
Dewberry, 790 F.3d 1022, 1036 (10th Cir. 2015). Mr.
Dewberry then filed a motion to vacate the conviction under
28 U.S.C. § 2255, and the district court denied the
motion. Mr. Dewberry wants to appeal. To do so, however, he
needs a certificate of appealability. 28 U.S.C. §
2253(c)(1)(B). Accordingly, Mr. Dewberry seeks a certificate
of appealability, alleging ineffective assistance of counsel
for failing to
• call Mr. Virok Webb as a witness,
• object to the government's allegation of a prior
conviction for a felony drug offense, and
• challenge a statutory enhancement in the direct
decline to issue a certificate of appealability.
Standard for a Certificate of Appealability
determine whether to grant a certificate of appealability, we
consider the standard that would govern if the appeal were to
proceed. If it did, we would engage in de novo review,
applying the same standard that governed in district court.
United States v. Snyder, 871 F.3d 1122, 1125 (10th
Cir. 2017). Here, however, we do not engage in a full review
of the merits. Instead, we consider only whether the district
court's ruling was debatable. Buck v. Davis, 137
S.Ct. 759, 774 (2017).
Dewberry would meet this minimal burden only if a reasonable
jurist could debate the merit of one or more of his claims.
These claims required Mr. Dewberry to show that his
attorney's actions had been deficient and prejudicial.
Strickland v. Washington, 466 U.S. 668, 688, 692
(1984); see also United States v. Challoner, 583
F.3d 745, 749 (10th Cir. 2009) (applying Strickland
to appellate counsel).
prove a deficiency, Mr. Dewberry had to show that
counsel's representation had fallen below an objective
standard of reasonableness. Strickland, 466 U.S. at
688. But a merits panel would presume that the legal
representation was adequate and that the attorney used
reasonable judgment. Challoner, 583 F.3d at 749. In
light of this presumption, Mr. Dewberry's claims do not
surpass the minimal threshold for a certificate of
Failure to Call ...