*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. CARL MARSHALL, Defendant-Appellant. No. 98-3079 (D. Kan.) (D.Ct. No. 97-CV-3040)

____________________________ ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.
Mr. Marshall, a federal inmate and a pro se litigant, appeals the District-2-

Court’s judgment denying his motion for relief unde r 28 U.S.C. § 2255. We exercise jurisdiction and affirm the judgment of th e district court.
Mr. Marshall was convicted of a conspiracy to distr ibute more than fifteen kilograms of cocaine base and three other drug dist ribution counts. He received a life sentence in prison. Mr. Marshall appealed and we affirmed the conviction and sentence. United States v. Williamson , 53 F.3d 1500 (10th Cir.), cert. denied, 516 U.S. 882 (1995).
Mr. Marshall filed a § 2255 motion, contending: (1 ) denial of effective assistance of counsel as his retained counsel conce ded guilt on three substantive distribution counts in closing argument; (2) the tr ial court improperly did “not allow the jury to know their U.S. Constitutional du ties,” asserting the jury should have been instructed it could find him not guilty i f it believed the criminal statute involved was unconstitutional; (3) denial of equal protection because cooperating witnesses received shorter sentences than defendant s, like himself, who proceeded to trial; (4) the trial court lacked jurisdiction o ver the crimes charged, as the United States Constitution reserves the power to pr osecute drug offenses to the states; (5) prejudice by the grand jury due to pros ecutorial misconduct, specifically “bring[ing] up evidence of an on going murder investigation”; (6) the-3-

prosecutor vindictively prosecuted him for her own personal gain; and (7) the trial was based upon “fraudulent gained evidence,” in that telephone records introduced at trial were fraudulently obtained.
The district court, in a six-page Memorandum and Or der, denied Mr. Marshall relief. The district court concluded: (1 ) Mr. Marshall’s claim of ineffective assistance of counsel fails under Strickland v. Washington , 466 U.S. 668 (1984), as his counsel made a clearly strategic al decision to portray Mr. Marshall as a small-time drug dealer and not a ring leader of a major drug conspiracy; and (2) the remaining six claims are ba rred as they could have been raised on direct appeal, and Mr. Marshall offered n o explanation to meet the “cause and prejudice” test or the “fundamental misc arriage of justice” test.
Mr. Marshall appeals the decision of the district c ourt and in doing so raises a single issue, contending the district court erred in concluding he did not receive ineffective assistance of counsel, nor any resulting prejudice of ineffective counsel.

Jurisdiction The clerk of the district court mailed a copy of th e trial court’s decision to1 Fed. R. App. P. 4(a)(6) provides the district court may, upon motion filed within

180 days of entry of the judgment or within seven days of the receipt of such notice, whichever is earlier, reopen the time for appeal for a period of fourteen days, if it finds a party entitled to notice of the entry of a judgment did not receive such notice within twenty-one days of its entry and no party would be prejudiced.
-4- Mr. Marshall at the penitentiary in Florence, Color ado rather than at the penitentiary in Beaumont, Texas. Believing his § 2 255 motion to be still pending, Mr. Marshall filed a motion for an evidentiary hear ing. The clerk then mailed a copy of the Memorandum and Order to the correct Bea umont address. Mr. Marshall moved the district court for an order toll ing the time for appeal. Although noting the 180-day savings period allowed under Fed. R. App. P. 4(a)(6) had expired, the Government did not object to Mr. M arshall’s request. Mr. Marshall also filed a motion for a Certificate of Appealability. Mr. Marshall then filed his pro se notice of appeal. The district court granted Mr. Marshall’s motion to toll the time and granted Mr. Marshall’s requestfor a Certificate of Appealability on only one issue, “whether Mr. Cornw ell’s closing statement constituted ineffective assistance of counsel.”
This chain of events gives rise to a novel issue in this circuit – whether a district court’s grant of a Fed. R. App. P. 4(a)(6) 1 motion validates a notice of appeal filed prior to the entry of such an order. We adopt the reasoning set forth2Mr. Marshall also seeks to supplement the record on appeal. Five of the

documents requested are already included in the record transmitted to this court, i.e. , documents numbered 334-336, 338 and 345. The remaining documents, numbered 342, 347 and 360 (which are, respectively, a Notice of Mr. Marshall’s changed address, and two return mail receipts, dated July 7, 1997, and February 17, 1998), are not necessary for our review as we exercise our jurisdiction.
-5- in Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993). In Hinton , we concluded the district court’s approval of Appellan t’s otherwise untimely notice of appeal validated his subsequent motion to extend the time to file the notice of appeal. The Hinton court further stated, “to require the filing of a new notice of appeal would amount to little more than empty papershuffling.” Id. at 778 (internal quotation marks omitted). We therefore c onclude we have jurisdiction to reach the merits of Mr. Marshall’s appeal and ex ercise our jurisdiction. 2

Ineffective Assistance of Counsel When reviewing the denial of a § 2255 motion, we re view the district court’s legal rulings de novo , and its factual findings for clear error. See United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). Ineffective a ssistance of counsel claims involve mixed questions of law we re view de novo
. See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997).
We begin by noting the essential facts. The Govern ment proved beyond a-6-

reasonable doubt Mr. Marshall acted as kingpin of along-running and successful crack and powder cocaine distribution conspiracy. See Williamson , 53 F.3d at 1506-08. The Government presented evidence of thre e hand-to-hand drug distributions between Mr. Marshall and an undercove r police officer, with one exchange recorded on audio and video tapes. During closing argument, Mr. Cornwell, counsel for Mr. Marshall, conceded his gu ilt on the three distribution counts (the three hand-to-hand drug exchanges), butnever conceded Mr. Marshall’s guilt on the most serious offense, the d rug conspiracy.
The district court, which also presided over Mr. Ma rshall’s five-week trial, concluded: Mr. Marshall argues that his retained trial counsel , Mr. Carl Cornwell, an experienced criminal defense lawyer, w as ineffective when he stated to the jurors in his closing argumen t that they should find Mr. Marshall guilty on three counts of distrib ution of small amounts of drugs, but not guilty on the conspiracy count. In United States v. Williamson , 53 F.3d 1500 (10th Cir.), cert. denied, 116 S. Ct. 218 (1995), the Tenth Circuit addressed this ex act issue with respect to one of Mr. Marshall’s co-conspirators, M s. Clarissa Williamson. The Tenth Circuit concluded that the s trategy utilized by Ms. Williamson’s attorney in his closing, which involved conceding Ms. Williamson’s guilt with respect to le sser counts of distribution of small amounts of drugs and denying her involvement with the conspiracy, did not constitute ineffective assistance of counsel. Id. at 1511-12. Like Ms. Williamson’s attorney, Mr. Cornwell, “... in the exercise of professional judg ment, primarily focused on attempting to obtain an acquittal for hi s client on the-7-

conspiracy charge, rather than particular substanti ve distribution charges.” Id. at 1512. Because the Government’s evidence at tri al concerning Mr. Marshall’s culpable involvement in t he three counts of distribution of small amounts of drugs was overw helming, the court concludes that Mr. Cornwell’s strategy ... wa s not deficient and did not prejudice the plaintiff’s defense. Against this factual backdrop, Mr. Marshall correct ly argues the admission by counsel of his client’s guilt to the jury repres ents an example of the sort of breakdown in the adversary process that triggers a presumption of prejudice. However, Mr. Marshall’s argument fails when the foc us is on the entire record. The record in the case before us is more than ample to overcome the presumption of prejudice. Mr. Marshall’s attorney remained a l egal advocate who acted with undivided allegiance and faithful, devoted service to him. The district court correctly referred to Williamson as presenting the identical situation to the case at hand. There is no sense repeating this analysis wh ich is found in Williamson , 53 F.3d at 1510-12. We are not alone is so holding. See United States v. Simone , 931 F.2d 1186 (7th Cir.), cert. denied, 502 U.S. 981 (1991), where counsel admitted guilt on individual drug trafficking offen ses and attempted to persuade the jury of the defendant’s innocence on the major charge. Suffice it to say, the district court correctly decided Mr. Marshall’s con tentions concerning ineffective assistance of counsel. Given that determination, w e cannot find his attorney’s performance deficient under the “objective standard of reasonableness.” See-8-

Strickland, 466 U.S. at 687-88.
The judgment of the district court is AFFIRMED for substantially the same reasons set forth by the district court.
Entered by the Court: WADE BRORBY United States Circuit Judge