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    United States v. Davis, 10th Cir. (1998)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding Burlon R. Davis's appeal of the denial of his motion for post-conviction relief under 28 U.S.C. § 2255 challenging his conviction for drug trafficking offenses. The court affirmed the district court's denial, finding that Davis did not receive ineffective assistance of counsel and his jury selection process was constitutional. Specifically, the court determined that the government's case against Davis was overwhelming so he could not show he was prejudiced by any alleged errors by his counsel.

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    United States v. Davis, 10th Cir. (1998)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding Burlon R. Davis's appeal of the denial of his motion for post-conviction relief under 28 U.S.C. § 2255 challenging his conviction for drug trafficking offenses. The court affirmed the district court's denial, finding that Davis did not receive ineffective assistance of counsel and his jury selection process was constitutional. Specifically, the court determined that the government's case against Davis was overwhelming so he could not show he was prejudiced by any alleged errors by his counsel.

    Original Description:

    Filed: 1998-06-18 Precedential Status: Non-Precedential Docket: 96-3293

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding Burlon R. Davis's appeal of the denial of his motion for post-conviction relief under 28 U.S.C. § 2255 challenging his conviction for drug trafficking offenses. The court affirmed the district court's denial, finding that Davis did not receive ineffective assistance of counsel and his jury selection process was constitutional. Specifically, the court determined that the government's case against Davis was overwhelming so he could not show he was prejudiced by any alleged errors by his counsel.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    22 views5 pages

    United States v. Davis, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding Burlon R. Davis's appeal of the denial of his motion for post-conviction relief under 28 U.S.C. § 2255 challenging his conviction for drug trafficking offenses. The court affirmed the district court's denial, finding that Davis did not receive ineffective assistance of counsel and his jury selection process was constitutional. Specifically, the court determined that the government's case against Davis was overwhelming so he could not show he was prejudiced by any alleged errors by his counsel.

    Copyright:

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 18 1998

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    BURLON R. DAVIS,
    Defendant-Appellant.

    No. 96-3293
    (D.C. Nos. 96-CV-3114 &
    89-CR-20081)
    (D. Kan.)

    ORDER AND JUDGMENT

    Before BRORBY , BARRETT , and BRISCOE , 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.

    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.

    Defendant Burlon R. Davis appeals from the denial of his motion for
    post-conviction relief under 28 U.S.C. 2255.

    See United States v. Davis , 939

    F. Supp. 810 (D. Kan. 1996). We exercise jurisdiction under 28 U.S.C. 1291

    and affirm.
    The factual and procedural background is detailed in the district courts
    opinion and will not be repeated here. Defendant challenged his conviction for
    several drug trafficking offenses on the grounds of ineffective assistance of
    counsel and unconstitutional jury impanelment. The district court held defendant
    had not satisfied either the deficient-performance or prejudice requirements for
    his ineffective assistance claims,

    see generally Strickland v. Washington , 466

    U.S. 668, 686-87 (1984), and did not establish any constitutional impropriety in
    connection with the selection of his jury.
    On appeal, defendant raises nine issues. He contends counsel should have
    been found ineffective for (1) failing to investigate and subpoena several
    witnesses; (2) failing to interview defendant to discover and present the defense;
    (3) failing to cross-examine codefendants Dana Nelson and William Nelson Sr.;
    The district court denied a certificate of appealability, a prerequisite to
    appeal under the then newly enacted Antiterrorism and Effective Death Penalty
    Act of 1996 (AEDPA). However, since that time, . . . we have held that 2255
    movants who [like defendant] filed their applications with the district court prior
    to AEDPAs effective date need not obtain a certificate of appealability to
    proceed in this court. United States v. Alvarez , 137 F.3d 1249, 1250 n.2 (10th
    Cir. 1998).

    -2-

    (4) failing to obtain an expert witness to take a voice exemplar for comparison
    with voices on drug transaction tapes; (5) failing to object to admission of letters
    seized from defendant on the ground that his authorship of the letters was not
    proven and failing to present evidence to that effect; (6) failing to challenge the
    impaneling of an all-white jury; and (7) overall inadequate performance. He also
    argues the district court erred in holding that (8) his jury was constitutionally
    selected and impaneled and (9) an evidentiary hearing was not warranted. Upon
    review of the post-conviction record and the transcript of defendants criminal
    trial, we affirm.
    With respect to the issue of jury panel selection, and most of defendants
    ineffective assistance claims, we have nothing to add to the district courts
    analysis. However, we note that defendants sustained insistence on his right to
    an evidentiary hearing has special import with respect to certain disputed
    allegations of counsel (mis)conduct which, involving matters outside the trial
    process, may not have been conclusively resolvable on the files and records of
    the case without a hearing pursuant to 2255.

    See Machibroda v. United States ,

    368 U.S. 487, 494-95 (1962) (hearing necessary to resolve factual disputes which
    related primarily to purported occurrences outside the courtroom and upon which
    the record could, therefore, cast no real light);

    -3-

    Moore v. United States , 950 F.2d

    656, 661 (10th Cir. 1991) (hearing necessary when factual disputes and
    inconsistencies beyond the record exist).
    To obviate this concern, we do not reach the extra-record facts regarding
    counsels conduct found by the district court. Instead, based on our review of the
    trial transcript, we agree with the district courts alternate conclusion that the
    governments case against defendant was overwhelming, and, thus, [d]efendant
    has simply not met his burden of showing that the decision reached would
    reasonably likely have been different absent the alleged errors.
    F. Supp. at 817 (quoting

    Davis , 939

    Strickland , 466 U.S. at 696). Accordingly, on this

    lack-of-prejudice rationale, we can confidently say in accord with 2255 that the
    files and records of the case of the case do conclusively show that the
    [defendant] is entitled to no relief.
    The judgment of the United States District Court for the District of Kansas
    is AFFIRMED. Defendants motion for transcripts and motion for stay are
    denied. Defendants motion for reimbursement of the appellate filing fee--paid
    on threat of dismissal pursuant to a subsequently vacated assessment order, and
    contrary to defendants extant in forma pauperis status--is granted. The district

    -4-

    court is hereby directed to refund the fee to defendants prison account.


    Defendants renewed motion to proceed in forma pauperis is, accordingly, denied
    as moot. The mandate shall issue forthwith

    Entered for the Court

    Wade Brorby
    Circuit Judge

    -5-

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