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United States v. Dewberry

United States Court of Appeals, Tenth Circuit

August 7, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KENNIN DEWBERRY, Defendant-Appellant.

          D.C. Nos. 5:16-CV-04115-JAR and 5:11-CR-40078-JAR-6 (D. Kan.)

          Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

          ORDER

          ROBERT E. BACHARACH, CIRCUIT JUDGE

         Mr. 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.

         Mr. 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 appeal.

         We decline to issue a certificate of appealability.

         I. Standard for a Certificate of Appealability

         To 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).

         Mr. 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).

         To 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 appealability.

         II. Failure to Call ...


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