* This order and judgment is not binding precedent, except under the

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

UNITED STATES COURT OF APPEALS

Filed 10/10/96

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN ANDREW GRESCHNER,

Defendant-Appellant.

No. 95-3201

(D.C. Nos. 93-3417-RDR

 &

 84-CR-30005-01)

(D. Kan.)

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 We note that on April 24, 1996, while this case was pending on appeal, the

President signed into law the “Antiterrorism and Effective Death Penalty Act of

1996,” Pub. L. No. 104-132, 110 Stat. 1214 (the Act). We need not determine

whether the Act’s amendments to 28 U.S.C. § 2255 govern cases pending when

the Act became effective because, even under the more expansive scope of review

available prior to the Act, defendant is not entitled to relief. See United States v.

Hernandez, 94 F.3d 606, 612 n.4 (10th Cir. 1996).

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Defendant John Andrew Greschner appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence, brought pursuant to 28 U.S.C.

§ 2255. Because defendant has not demonstrated cause for his failure to raise his

issues on direct appeal or prejudice therefrom, we affirm.1

In June 1984, defendant was convicted of first-degree murder and

conspiracy. His convictions were affirmed in United States v. Greschner, 802

F.2d 373 (10th Cir. 1986), cert. denied, 480 U.S. 908 (1987). In October 1993,

defendant filed this § 2255 motion, raising numerous issues that had not been

raised in his direct appeal. The district court found that defendant’s appellate

attorney had not rendered ineffective assistance of counsel, and that, therefore,

defendant had not established cause for his failure to raise the issues on direct

appeal, or prejudice therefrom. 

On appeal, defendant argues that his attorney was ineffective in failing to

raise the following issues: (1) error in the court’s responses to jury inquiries

during deliberations; (2) illegal amendment of the indictment by the aiding and

abetting instruction; (3) error in not giving a duress/coercion instruction; (4) error
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in instructing the jury as to “heat of passion” and its effect on the government’s

burden of proof; (5) unconstitutional presumption in the deadly weapon

instruction; (6) prosecutorial misconduct; (7) error in admitting evidence about

prison gangs; (8) error in denying defendant’s motion for judgment of acquittal;

and (9) violation of the double jeopardy clause and the Eighth Amendment. He

argues that this ineffectiveness establishes cause for his failure to raise the issues

on direct appeal, and that he was prejudiced thereby. 

When reviewing the denial of a § 2255 motion, we review the district

court’s legal rulings de novo, and its findings of fact for clear error. United

States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). “A claim of ineffective

assistance of counsel presents a mixed question of law and fact which we review

de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied,

116 S. Ct. 936 (1996). A § 2255 defendant may not raise issues which were not

raised in his direct appeal unless he establishes cause for his default and prejudice

resulting therefrom. United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). 

Cause and prejudice may be established by showing that the defendant’s appellate

counsel rendered ineffective assistance in failing to appeal meritorious issues. Id.

at 392-93. 

We agree, for the reasons stated by the district court, that it was not

objectively unreasonable for counsel to refrain from appealing the court’s
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responses to the jury’s inquiries; the instructions on aiding and abetting,

coercion/duress, and use of a deadly weapon; the prosecution’s closing comments

and reference to prison gangs; the denial of the motion for acquittal; and the

prosecution of defendant for both murder and conspiracy to murder. Counsel’s

failure to raise issues which have no merit “does not constitute constitutionally

ineffective assistance.” Id. at 393 (quotation and citation omitted).

We also conclude that counsel’s failure to appeal the heat of passion

instruction and its effect on the government’s burden of proof was objectively

reasonable, despite our opinion in United States v. Lofton, 776 F.2d 918 (10th

Cir. 1985). An appellate attorney’s failure to raise an issue is deficient if it is a

“dead-bang winner,” that is, an issue that “was obvious from the trial record,” and

one which “must have leaped out upon even a casual reading.” Cook, 45 F.3d at

395 (citations and quotations omitted). We evaluate counsel’s conduct based on

the circumstances as they existed at the time of appeal, without the distorting

effects of hindsight. Strickland v. Washington, 466 U.S. 668, 689 (1984). 

We note first that defendant, who made a strategic choice to represent

himself at trial, did not request a heat of passion instruction or object to the

instructions that were given. In evaluating the strength of this issue on appeal,

therefore, appellate counsel was bound by defendant’s failure to preserve any

potential error at trial. See Fed. R. Crim. P. 30 (“No party may assign as error
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any portion of the [jury instructions] or omission therefrom unless that party

objects thereto before the jury retires to consider its verdict . . . .”); United States

v. Sides, 944 F.2d 1554, 1562 (10th Cir.)(holding that defendant waived any error

in jury instructions by failing to raise timely objection, noting that judgment

would be reversed only for plain error resulting in a miscarriage of justice), cert.

denied, 502 U.S. 989 (1991). 

Further, defendant’s appeal was filed long before we issued our decision in

Lofton. Although the Supreme Court had already decided Mullaney v. Wilbur,

421 U.S. 684 (1975), upon which Lofton rested, we do not believe counsel was

required to anticipate this court’s extension of Mullaney to a case which did not

expressly shift the burden of proof to the defendant. See, e.g., Jameson v.

Coughlin, 22 F.3d 427, 429 (2d Cir.)(holding that appellate counsel was not

incompetent for failing to predict that court would later overrule interpretation of

state law), cert. denied, 115 S. Ct. 232 (1994); Lilly v. Gilmore, 988 F.2d 783,

786 (7th Cir.)(“The Sixth Amendment does not require counsel to forecast

changes or advances in the law, or to press meritless arguments before a court.”),

cert. denied, 510 U.S. 852 (1993); see also Coleman v. Saffle, 869 F.2d 1377,

1394 n.15 (10th Cir. 1989)(holding that “[c]ompetency of counsel must be judged

by what he reasonably should have known at the time of the trial [ten years

earlier]”), cert. denied, 494 U.S. 1090 (1990). Given the state of the law when
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appellate counsel filed defendant’s appeal, a challenge to the “heat of passion”

instruction and its effect was not a “dead-bang winner,” and counsel was not

ineffective in failing to raise the issue on direct appeal. Defendant, therefore, has

not shown cause for his procedural default.

Even if the issue should have been raised on appeal, defendant cannot show

that he was prejudiced by counsel’s failure to do so. To find that defendant

committed first degree murder, the jury had to find, beyond a reasonable doubt,

that he acted with premeditation, defined as:

associated with murder in cold blood and requires a period of time in

which the accused coolly deliberates, or thinks the matter over,

before acting. . . . Any interval of time between the forming of a

specific intent to kill, and the execution of that intent, which is of

sufficient duration for the accused to be fully conscious and mindful

of what he intended willfully to set about to do, is sufficient to

justify a finding of premeditation. 

R. Vol. II, doc. 84 at 376-77. Because a finding of premeditation is inconsistent

with a finding that defendant acted in the heat of passion, defendant cannot show

that he was prejudiced by the failure to appeal the jury instructions. See United

States v. Frady, 456 U.S. 152, 172-74 (1982)(discussing inconsistency of a jury

finding of premeditation with a heat of passion defense).
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The judgment of the United States District Court for the District of Kansas

is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy

Circuit Judge