* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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. 

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

### MAR 17 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 98-3089

v. (D.C. No. 96-CR-40063-SAC) MARK JOSHUA BAILEY, (D. Kan.) Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Defendant-Appellant Mark Joshua Bailey appeals fromhis conviction for possession with intent to distribute cocaine base. Defendant’s sole argument is that he was deprived of his Sixth Amendment right t o effective assistance of1 Although Defendant was charged with an additional c ount under 21 U.S.C.

§ 841(a)(1) in a superceding indictment, the distri ct court later dismissed this count without prejudice pursuant to the government’ s motion. -2- counsel due to his counsel’s failure to (1) obtain a sample of the drugs seized in connection with Defendant’s arrest for independent laboratory testing; (2) challenge the chain of custody of the drugs; (3) ch allenge the issuance of the search warrant; and (4) interview and obtain the te stimony of certain defense witnesses. After the execution of a search warrant for the pre mises and occupants of 1201 S.W. Western, Topeka, Kansas, Defendant was ch arged on August 28, 1997, with one count of possession with intent to distrib ute 14.32 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). 1 The jury returned a guilty verdict on October 8, 1997, after a two-day trial. At trial, Defendant was represented by Charles Dedmon, Assistant Federal Public Defender f or Kansas. Before Defendant was sentenced, he sent a letter to the district court informing the court of his dissatisfaction with the assistance provided to him by Mr. Dedmon and the Federal Public Defender’s office . The Federal Public Defender’s office then filed a motion to withdraw a s counsel. The court granted the motion and appointed new counsel on January 26, 1998. In response to Defendant’s letter, the clerk of the court sent Def endant the forms for filing a 28 U.S.C. § 2255 motion. Proceeding pro se, Defend ant filed a section 2255-3-

motion on December 17, 1997. In his motion, Defend ant alleged that he received ineffective assistance of counsel because Mr. Dedmo n “failed, refused and neglected to conduct any interviews with individual s who had relevant testimony favorable to the accused on the issue of guilt.” R ., Vol. 1, Doc. 77 at 6. In particular, Defendant complained that Mr. Dedmon di d not interview “one Mike Bowser who could have established that Movant was n ot present at the time the confidential informant claimed to have purchased drugs from ‘some one,’” id. , and that Mr. Dedmon failed to interview the confide ntial informant, whose identity was known to Mr. Dedmon. In addition, Def endant alleged that Mr. Dedmon failed to obtain a sample of the seized drug s for independent laboratory testing and failed to challenge the chain of custody of the drugs offered in evidence by the prosecution. Finally, Defendant al leged that Mr. Dedmon did not challenge the search warrant even though Defendant had requested him to do so because the evidence was insufficient to establish probable cause. Defendant attributed his counsel’s failings to the excessive work load with which the Federal Public Defender’s office is burdened. Because Defendant had not yet been sentenced when h e filed his section 2255 motion, the district court held the motion und er advisement until it sentenced Defendant to a term of 120 months on Marc h 20, 1998. The district court then addressed the merits of Defendant’s moti on and denied it, finding that,-4-

in light of the available evidence, his counsel’s “ performance was not [constitutionally] deficient in any respect.” Unit ed States v. Bailey , No. 96- 40063-01-SAC, 1998 WL 214888, at *4 (D. Kan. Mar. 2 0, 1998). From the record before us, it appears that Defendant did notfile a notice of appeal within sixty days of the district court’s denial of his se ction 2255 motion. See Fed. R. App. P. 4(a); United States v. Pinto , 1 F.3d 1069, 1070 (10th Cir. 1993). However, on March 31, 1998, Defendant filed a notic e of appeal from his conviction for possession with intent to distribute . In this direct appeal, Defendant raises essentially the same argument thathe asserted in his section 2255 motion, i.e., that he was denied his Sixth Ame ndment right to effective assistance of counsel due to his counsel’s inadequate pretrial preparation and investigations and performance at trial. Specifica lly, Defendant contends that his counsel failed to obtain a sample of the seized dru gs for independent laboratory testing, failed to challenge the chain of custody o f the drugs, failed to challenge the issuance of the search warrant, and failed to c all crucial witnesses to testify at trial. This court has stated that, ordinarily, “[i]neffect ive assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). T he exception to this general rule is the “rare instance[] [in wh ich] an ineffectiveness of counsel-5-

claim may need no further [factual] development pri or to review on direct appeal.” Id. ; see also United States v. Carter , 130 F.3d 1432, 1442 (10th Cir. 1997) (stating that where the record has been suffi ciently developed by the district court before the appeal, the court “can ag ree to consider the claim on direct appeal”), cert. denied , __ U.S. __, 118 S. Ct. 1856 (1998). In this case , Defendant already has filed and the district court already has addressed the merits of Defendant’s ineffective assistance of counsel cl aim in the section 2255 motion. See Bailey , 1998 WL 214888. Because of these unusual procedu ral circumstances, we have “the benefit of the districtcourt’s views,” Galloway , 56 F.3d at 1240, and we have a sufficient record upon which to base our decision. Cf. Carter , 130 F.3d at 1442 (holding that record was suffici ent to address ineffectiveness claim on direct appeal because defe ndant raised claim in two posttrial motions and court heard testimony relevant to claim during sentencing hearing); United States v. Gallegos , 108 F.3d 1272, 1280 (10th Cir. 1997) (reaching merits of conflict of interest claim wher e defendant asserted claim at trial and in post-trial motion and court weighed me rits of claim in post-trial order). Moreover, dismissing Defendant’s appeal an d requiring him to raise his ineffective assistance claim in a collateral procee ding would be absurd, given that Defendant already has raised the claim in a collate ral proceeding and that an additional section 2255 motion filed by Defendant l ikely would be dismissed as a2 Because Defendant filed his direct appeal after he filed his 28 U.S.C. §

2255 motion, the procedural posture of this case is somewhat unusual. However, because we can find no authority precluding us fromconsidering the merits of Defendant’s appeal, and because the district court’ s decision to address the merits of Defendant’s section 2255 motion is not before us , we address the merits of Defendant’s appeal. Our interest in promoting judi cial economy also supports our decision to reach the merits of Defendant’s claim. -6- second or successive petition. See 28 U.S.C. § 2255. For these reasons, we turn to the merits of Defendant’s ineffective assistance claim. 2 “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Stric kland v. Washington , 466 U.S. 668, 690 (1984). Thus, under Strickland , we apply a plenary standard of review to legal issues and we review the district court’s factual findings for clear error. See United States v. Miller , 907 F.2d 994, 996 (10th Cir. 1990). To show thathis “counsel’s assistance was so defective as to requir e reversal of [his] conviction,” Defendant must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland , 466 U.S. at 687. Defendant may establish deficient performance by sh owing “that counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the [D]efendant by the Sixth Amendment.” Id. Counsel’s representation is deficient if it “falls below an objective standard of reasona bleness.” Id. at 690. To show prejudice, Defendant must show “that counsel’s erro rs were so serious as to-7-

deprive the defendant of a fair trial, a trial whos e result is reliable.” Id. Additionally, a showing of prejudice requires the d efendant to demonstrate “that there is a reasonable probability that, but for cou nsel’s unprofessional errors, the result of the proceeding would have been different. ” Id. at 694. “The benchmark for judging any claim of ineffectiveness must be wh ether counsel’s conduct so undermined the proper functioning of the adversaria l process that the trial cannot be relied on as having produced a just result.” Id

. at 686. However, “a court must indulge a strong presumption that counsel’s co nduct falls within the wide range of reasonable professional assistance; that i s, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955)). At the outset, we note that the factual “backdrop” of Defendant’s case weighs against his ineffective assistance of counse l claim. Bailey , 1998 WL 214888, at *3. During the execution of a search warrant, police officers discovered Defendant running from a table on which cocaine base was prominently displayed. He was the only individual present in the residence at the time. Officers could smell marijuana in the search ed premises and found marijuana in Defendant’s pants pocket. Officers al so located a stack of cash in the residence, along with Defendant’s social securi ty card, his birth certificate,-8-

and some plastic sandwich bags with the corners torn out of them. Defendant confessed that the cocaine base was his, admitted that he intended to sell it, and identified his source to the investigating officers . Prior to trial, Defendant’s counsel made two motions to suppress, both of whichwere denied by the district court. See United States v. Bailey , 979 F. Supp. 1319 (D. Kan. 1997); United States v. Bailey , 979 F. Supp. 1315 (D. Kan. 1997). At trial, Defe ndant’s counsel presented the defense that Defendant’s confession w as coerced by the investigating officers. In light of this background evidence and mindful of the standards set forth above, we now address in turn each of Defendant’s arguments supporting his ineffective assistance claim. Defendant first cont ends that his counsel’s performance was deficient because he failed to obta in a sample of the seized drugs for independent laboratory testing. Because no evidence called the government chemist’s evaluation of the substance into question prior to or during the trial, we cannot say that counsel’s decision no t to obtain a sample of the drugs for independent testing was unreasonable. Morever, counsel raised numerous objections to the Government’s evidence at trial th at the substance located at the scene was cocaine base. See R., Vol. 2, Doc. 103 at 33, 40-41, 98, 100, 112, 1 45. Counsel also cross-examined the chemist who tested the drugs regarding his qualifications, the testing of the drugs, and the r ecords he kept on the drug-9-

testing. See id. at 139-44. As a consequence, we conclude that cou nsel’s performance was not deficient under the standard es tablished in Strickland

. Second, Defendant argues that his counsel failed to challenge the chain of custody of the drugs found at the scene. However, the record indicates that counsel did, in fact, challenge the chain of custody of the drugs. For example, counsel asked the testifying officer, whose duty itwas to collect the evidence from the search, about the process of collecting th e evidence and the procedure for recording the collection of evidence. See id. at 118-21. Counsel also asked the chemist who tested the drugs whether the drugs were brought to him directly by police officers, and, if not, who brought him th e drugs. See id. at 141. In addition, counsel asked the chemist if he remembere d testing the particular drugs in this case. See id. at 141-42. Finally, in his closing statement to t he jury, Defendant’s counsel disputed the actual amount of c ocaine base seized, see id. at 165-66, and asserted that the cocaine base that was tested was not the substance found at the scene. See id. at 172-74. Taken together, these facts demonstrat e that counsel’s performance was not legally deficient. Third, Defendant claims that his counsel failed to challenge the issuance of the search warrant. Defendant offers only one argu ment in support of his claim that counsel should have challenged the issuance of the search warrant: he claims that the testimony of Mr. Mike Bowser would have ca lled into question whether-10-

Defendant was present or living in Topeka at the ti me the confidential informant claimed he purchased drugs from Defendant, which inturn would have impugned the factual basis on which the search warrant was i ssued. We do not think that this assertion is sufficient to characterize his co unsel’s failure to interview Mr. Bowser as deficient performance. Not only has Defe ndant offered no evidence in support of this argument but also such testimony is unlikely to have rendered the probable cause in support of the warrant inadequate . Moreover, Defendant did not include the application for the search warrant or any other information regarding the warrant in the record. In the absenc e of such information, we rely on the district court’s determination that the evid ence supported the issuance of the warrant. See Bailey , 1998 WL 214888, at *4. We hold that none of Defendant’s first three allegations of ineffective assistance rises to the level of deficiency required to establish a Sixth Amendment violation under Strickland

. Accordingly, we do not address the prejudice prong of the test with respect to those allegations. See Strickland , 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”). With respect to his fourth and final claim of ineff ective assistance of counsel, Defendant contends that his counsel’s fail ure to interview and call certain witnesses to testify violated his right to effective representation.-11-

Defendant has alleged only that the witnesses whichhis counsel allegedly should have interviewed could have testified that Defendan t was not living in Topeka at the time the confidential informant claimed he purc hased drugs from him and that Defendant did not live at the searched residence. Contrary to Defendant’s claim that his counsel failed to conduct any investigatio ns regarding the informant, counsel did investigate the role of the confidentia l informant for purposes of making a pre-trial motion to suppress. In that mot ion and its supporting memorandum, counsel asserted that the confidential informant had only been working as an informant for less than one month andhad a conviction for a crime of dishonesty. However, under the circumstances of this case, we need not decide whether counsel’s failure to interview and elicit t estimony from witnesses who potentially might have aided the defense constitute s deficient performance under Stricklandbecause we conclude that counsel’s performance was patently not prejudicial. See id. ; United States v. Mealy , 851 F.2d 890, 908 (7th Cir. 1988). Defendant has failed to establish prejudice on this point for the following reasons. As stated in our discussion of Defendant’ s claim that his counsel failed to challenge the search warrant, the testimony of t he confidential informant or Mr. Bowser is unlikely to have prevented the issuance o f the search warrant. Moreover, any testimony suggesting that Defendant d id not live at the searched residence would have been countered by the ample ev idence presented at trial that-12-

he did reside there, such as the officers’ discovery of Defendant’s social security card and birth certificate at the residence. We al so do not believe that any testimony by the confidential informant or by Mr. B owser indicating that Defendant did not sell drugs to the confidential in formant was relevant to the issues and evidence presented at trial. The purcha se of drugs by the informant was not presented in evidence or relied upon by the prosecution to prove any aspect of its case. The alleged testimony from the se witnesses would have neither impugned the evidence found at the scene nor been r elevant to whether investigating officers coerced Defendant’s confessi on. Finally, while Defendant contends that proper investigations by counsel “wou ld have drastically changed the events leading up to trial and the trial itself ,” Appellant’s Br. at 7, and “would [have] greatly aid[ed] the defense,” id. at 8, such conclusory and vague statements of prejudice are insufficient to demonstrate prejud ice under Strickland . See Stafford v. Saffle , 34 F.3d 1557, 1564-65 (10th Cir. 1994), cert. den iedsub nom. Stafford v. Ward , 514 U.S. 1099 (1995); Mealy , 851 F.2d at 908. In sum, we hold that Defendant has failed to make o ut a claim of ineffective assistance of counsel. His conviction for possession with intent to distribute cocaine base is AFFIRMED

.-13- Entered for the Court

Monroe G. McKay Circuit Judge