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

                                                                               JUN 19 1997
                       UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          PATRICK FISHER
                                                                                   Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                          No. 96-3273
                                                     (D.C. No. 96-3261-EEO)
 ELWOOD M. ARMSTRONG,                                       (D. Kan.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before ANDERSON, HENRY, 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. Therefore, the case is

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          This order and judgment is not binding precedent, except under the doctrines of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 Elwood M. Armstrong, appearing pro se, requests a certificate of

appealability to appeal the district court's denial of his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence. We conclude Armstrong is not

entitled to a certificate of appealability and dismiss the appeal.

      Armstrong was convicted of attempted bank robbery in violation of 18

U.S.C. § 2113(a) and was sentenced to 210 months' imprisonment. On direct

appeal, we rejected Armstrong's assertion that evidence presented at trial was

insufficient to establish the element of intimidation. United States v. Armstrong,

54 F.3d 788, 1995 WL 275712 (10th Cir. 1995) (table). Armstrong filed this §

2255 motion, claiming his trial attorney was ineffective.

      The Antiterrorism and Effective Death Penalty Act of 1996 requires a §

2255 petitioner to obtain a certificate of appealability prior to appealing a final

order of the district court. 28 U.S.C. § 2253(c)(1)(B). A habeas petitioner is

entitled to a certificate of appealability only if he has made a "substantial showing

of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). We have held

that the standard for granting a certificate of appealability under the Act is the

same as the standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S.

880 (1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied

117 S. Ct. 746 (1997). Under the Barefoot standard, a certificate will issue only

where the petitioner has demonstrated the issues raised are debatable among


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jurists of reason, a court could resolve the issues differently, or the questions

presented are deserving of further proceedings. See Barefoot, 463 U.S. at 893

n.4.

       Armstrong contends trial counsel was ineffective because of failure to

properly present a defense based upon Armstrong's alleged voluntary intoxication

at the time of the charged offense. More specifically, he argues counsel failed to

investigate, prepare, and present a defense based on the voluntary intoxication,

and failed to insure the giving of appropriate jury instructions relating to the law

of "attempt," and in particular instructions relating to specific intent and

Armstrong's intoxication defense. To prevail on his claim of ineffective

assistance of counsel, Armstrong must demonstrate that counsel's performance

fell below an objective standard of reasonableness and that counsel's deficient

performance was so prejudicial "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 694 (1984).

       Although voluntary intoxication may be established as a defense to a

specific intent crime, it is not a defense to a general intent crime. See United

States v. Sands, 968 F.2d 1058, 1064 (10th Cir. 1992), cert. denied 506 U.S. 1056

(1993); United States v. Soundingsides, 820 F.2d 1232, 1242 (10th Cir. 1987).




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Thus, Armstrong's ineffective assistance of counsel claims hinge upon whether he

was charged with a specific intent crime or a general intent crime.

      Armstrong was charged under 18 U.S.C. § 2113(a), which proscribes two

different types of criminal activity:

             Whoever, by force and violence, or by intimidation, takes, or
      attempts to take, from the person or presence of another, or obtains or
      attempts to obtain by extortion any property or money or any other thing of
      value belonging to . . . any bank . . .; or
             Whoever enters or attempts to enter any bank . . . with intent to
      commit in such bank . . . any felony affecting such bank . . . and in
      violation of any statute of the United States, or any larceny--
             Shall be fined under this title or imprisoned not more than twenty
      years, or both.

Although specific intent is an element of an offense under the second paragraph,

it is not an element of an offense under the first paragraph. United States v.

Johnston, 543 F.2d 55, 58 (8th Cir. 1987) ("A simple comparison of the language

in the two paragraphs of § 2113(a) convinces us that Congress chose to define the

second paragraph in terms of specific intent and consciously did not include

language of specific intent in the first paragraph.").

      The record clearly indicates Armstrong was charged with violating the first

paragraph. In particular, the single-count information provides in pertinent part:

            On or about the 12th day of May, 1994, in the District of Kansas,
      ELWOOD M. ARMSTRONG, did by force and violence, and by
      intimidation, attempt to take from the person and presence of Rita K.
      Clements money belonging to, and in the care, custody, control,
      management and possession of the Twin City State Bank, 4020 Rainbow,
      Kansas City, Kansas, a financial institution the deposits of which were

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      insured by the Federal Deposit Insurance Corporation, in violation of Title
      18, United States Code, Section 2113(a).

Record I at doc. 6. Although the information does not expressly cite the first

paragraph of § 2113(a), the specific language used clearly indicates the

information is based on the first paragraph. Accordingly, the information charged

Armstrong with a general intent crime. Because he was charged with a general

intent crime, voluntary intoxication was not a viable defense. Thus, Armstrong

was not prejudiced by his trial counsel's alleged failure to investigate, prepare,

and present a defense based on such alleged intoxication. Likewise, Armstrong

was not prejudiced by his trial counsel's alleged failure to provide proposed jury

instructions on specific intent and the intoxication defense or to object to the

instructions actually given.

      We note in passing that the district court instructed the jury that "attempt"

means "willfully to take some substantial step in an effort to bring about or

accomplish something the law forbids to be done." Record I at doc. 58. Further,

the court instructed the jury that "willfully" is an act done voluntarily and

purposely, with specific intent to do that which the law forbids, with bad purpose

either to disobey or to disregard the law. Neither of these instructions

transformed the charged offense into a specific intent crime so as to entitle

Armstrong to raise the defense of voluntary intoxication or to entitle him to an

instruction on this defense. See United States v. Martinez, 49 F.3d 1398, 1401

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(9th Cir. 1995) ("While the district court's decision to give a specific intent

instruction for a general intent crime may have created a 'windfall' for the

defendant, it did not entitle him to a diminished capacity defense, which is only

cognizable for specific intent crimes."), cert. denied 116 S. Ct. 749 (1996).

      Armstrong's application for a certificate of appealability is DENIED and

this appeal is DISMISSED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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