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

Attachment (lower court order) not available electronically.
                   UNITED STATES COURT OF APPEALS
Filed 1/2/97
                                TENTH CIRCUIT
                             _____________________

 UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

 v.                                                    No. 96-6190
                                                  (D.C. No. CIV-96-199)
 MARION JOHNSON,                                    (W.D. Oklahoma)

      Defendant-Appellant.
                             _____________________

                            ORDER AND JUDGMENT *
                             _____________________

Before BRORBY, EBEL and KELLY, 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        This order and judgment is not binding precedent except under the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.
      Ms. Johnson was convicted of twenty-five drug related crimes and

unsuccessfully appealed to this court. See United States v. Johnson, 911 F.2d

1394 (10th Cir. 1990). Ms. Johnson then filed a pro se motion to correct her

sentence alleging the sentencing court erred "in incorporating 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 filed a pro se § 2255

motion raising five issues: (1) the minimum mandatory sentence did not apply to

her offenses; (2) the sentencing court erred in calculating her base level offense

using the entire quantity of drugs distributed over the course of the conspiracy;

(3) the sentencing court erroneously imposed a sentence 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 assertion (her sentence should

not contain the mandatory minimum) barred as successive and the remaining

issues barred as she failed to raise those issues on direct appeal and has not

presented sufficient evidence to overcome the procedural bar. We attach a copy

of the trial court's eight-page order.


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       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 counsel is not barred
       by her failure to raise the issue on direct appeal, the court has
       determined that these claims lack merit. Accordingly, her
       substantive claim for ineffective assistance is denied and the above
       claims are procedurally barred.


       We must first address the question of whether to grant 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 entered an order denying Ms.

Johnson a certificate of appealability concluding she had failed to make a

substantial showing of the denial of a constitutional 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 she has failed to show cause and

prejudice for her failure to raise them either on direct 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 assistance of counsel, we have

reviewed the record on appeal and conclude Ms. Johnson's allegations in this

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regard are conclusory and should not therefore be considered. For example, Ms.

Johnson alleged "[t]he defendant's defense attorney failed to challenge the

sentence as requested by the defendant and as a result 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 contentions 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 again review this claim simply

because it has been recast in the clothing of an ineffective 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




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