                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0335n.06

                                            No. 06-1265                                    FILED
                                                                                       Jun 02, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


PATRICE DONALDSON,                                        )
                                                          )        ON APPEAL FROM THE
       Petitioner - Appellant,                            )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
v.                                                        )        DISTRICT OF MICHIGAN
                                                          )
UNITED STATES OF AMERICA,                                 )                 PER CURIAM
                                                          )
       Respondent - Appellee.                             )



BEFORE:        KEITH, BOGGS, and McKEAGUE, Circuit Judges.

       Per Curiam. On October 24, 2001, Patrice Donaldson was convicted in federal court of

conspiring to distribute heroin and cocaine. Donaldson appealed his conviction, and in 2004 we

affirmed. See United States v. Donaldson, 110 F. App’x 603 (6th Cir. 2004). Donaldson then

moved under 28 U.S.C. § 2255 for the court to vacate his sentence on the grounds of prosecutorial

misconduct and ineffective assistance of counsel. On December 2, 2005, the district court denied

Donaldson’s motion. The district court then issued a certificate of appealability only as to

Donaldson’s second claim, ineffective assistance of counsel, and not as to prosecutorial misconduct.

Donaldson asked us to enlarge the certificate of appealability, a request we denied. Donaldson

moved for reconsideration, and on March 7, 2008 we denied his motion, thus restricting Donaldson’s

appeal to the district court’s denial of his § 2255 motion on the grounds of ineffective assistance of

counsel.
No. 06-1265
Patrice Donaldson v. United States of America

       “In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo standard of

review to the legal issues and uphold the factual findings of the district court unless they are clearly

erroneous.” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009) (citing Benitez v. United

States, 521 F.3d 625, 630 (6th Cir. 2008)). Having duly considered the arguments and the record,

we find Donaldson’s appeal to be meritless. As the district court noted in its December 2, 2005

opinion, in order to demonstrate that he was deprived of the right to effective assistance of counsel,

Donaldson must demonstrate both: (1) that counsel’s performance was deficient; and (2) that such

deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Donaldson claims that his counsel failed to object to alleged instances of prosecutorial

misconduct. In affirming his conviction, however, we explicitly found “no merit in [Donaldson’s]

claim of flagrant prosecutorial misconduct,” and concluded that “[Donaldson’s o]ther claims of

prosecutorial misconduct, including repeated use of leading questions and vouching for witnesses,

are without merit.” Donaldson, 110 F. App’x at 610, 610 n.3. As we have already rejected

Donaldson’s contention that his trial was marred by prosecutorial misconduct, Donaldson cannot

demonstrate that his counsel’s failure to object to the prosecution’s actions in any way prejudiced

his defense, and so cannot meet the second Strickland prong.

       Accordingly, we AFFIRM the district court’s denial of Donaldson’s motion to vacate his

sentence.




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