No. 96-6190, U.S. v. Johnson

Attachment (lower court order) not available electronically.* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 1/2/97 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. MARION JOHNSON, Defendant-Appellant. No. 96-6190 (D.C. No. CIV-96-199) (W.D. Oklahoma)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and KELLY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-3-

Ms. Johnson was convicted of twenty-five drug relat ed crimes and unsuccessfully appealed to this court. See United States v. Johnson , 911 F.2d 1394 (10th Cir. 1990). Ms. Johnson then filed a pr o se motion to correct her sentence alleging the sentencing court erred "in in corporating the mandatory minimum sentence" and arguing she should have been granted parole. This was treated as a 28 U.S.C. § 2255 (1994) motion and was denied.
Approximately two years later Ms. Johnson again fil ed a pro se § 2255 motion raising five issues: (1) the minimum mandat ory sentence did not apply to her offenses; (2) the sentencing court erred in cal culating her base level offense using the entire quantity of drugs distributed overthe course of the conspiracy; (3) the sentencing court erroneously imposed a sent ence of supervised release; (4) her due process rights were violated when the government estimated the cutting agent without testing the drug for purity; and (5) ineffective assistance of counsel.

The district court found Ms. Johnson's first assert ion (her sentence should not contain the mandatory minimum) barred as succes sive and the remaining issues barred as she failed to raise those issues o n direct appeal and has not presented sufficient evidence to overcome the proce dural bar. We attach a copy of the trial court's eight-page order.-4-

The district court also concluded: Defendant fails to show that counsel's performance was deficient and that she was prejudiced as a result. Although her substantive claim for ineffective assistance of cou nsel is not barred by her failure to raise the issue on direct appeal, the court has determined that these claims lack merit. According ly, her substantive claim for ineffective assistance is den ied and the above claims are procedurally barred. We must first address the question of whether to gr ant a Certificate of Appealability. Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, a certificate of appealability is required to appeal a denial of a motion filed pursuant to 28 U.S.C. § 2255. The district court e ntered an order denying Ms. Johnson a certificate of appealability concluding s he had failed to make a substantial showing of the denial of a constitution al right. We agree with the district court.
We deny Ms. Johnson a certificate of appealability. Ms. Johnson's first four claims are either abusive or successive and sh e has failed to show cause and prejudice for her failure to raise them either on d irect appeal or in her first § 2255 motion. Additionally, Ms. Johnson has failed to make an adequate showing of actual innocence. As to her claim of ineffective a ssistance of counsel, we have reviewed the record on appeal and conclude Ms. John son's allegations in this-5-

regard are conclusory and should not therefore be c onsidered. For example, Ms. Johnson alleged "[t]he defendant's defense attorneyfailed to challenge the sentence as requested by the defendant and as a res ult the defendant is sitting in prison with a large prison sentence for drugs that she did not foresee." Alternatively, this court reads Ms. Johnson's conte ntions regarding her claim of ineffective assistance of counsel as being tied to the imposition of the mandatory minimum sentence, a claim decided adversely to Ms. Johnson by the district court in Ms. Johnson's first § 2255 motion. We cannot ag ain review this claim simply because it has been recast in the clothing of an in effective assistance of counsel claim.
Ms. Johnson's motion for the grant of a certificate of appealability is denied. The appeal is DISMISSED for a lack of jurisdiction.

Entered for the Court: WADE BRORBY United States Circuit Judge