                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              OCT 28 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 99-6087
 v.
                                                    (D.C. No. CIV-97-615-L)
                                                  (Western District of Oklahoma)
 TYRONE MAURICE CLARK,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Pro se appellant Tyrone Maurice Clark requests a certificate of

appealability to appeal the district court’s denial of his motion to vacate his

federal sentence pursuant to 28 U.S.C. § 2255. We deny Clark’s application for a

certificate of appealability on the grounds that he has failed to make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).


      *
         The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Clark was charged with several drug-related crimes pertaining to possession

of cocaine, and pleaded guilty to one count of conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846. Clark appealed his 180-month

sentence, and we affirmed. See United States v. Clark, No. 95-6051, 1995 WL

445705, at *1 (10th Cir. July 28, 1995). On direct appeal, Clark objected to the

district court’s imposition of a two-level increase under U.S.S.G. § 3B1.1(c) for

his role as a “leader and organizer” of the conspiracy as well as the court’s failure

to grant a downward departure. See id. at *1-2. Clark has additionally

challenged on notice and double jeopardy grounds, and this court affirmed, the

seizure and civil forfeiture of approximately $100,000 in currency in connection

with his drug arrest and conviction. See United States v. Clark, 84 F.3d 378, 381-

82 (10th Cir. 1996); United States v. Orienta Park Second, No. 96-3228, 1997 WL

312140, at *1 (10th Cir. June 10, 1997).

      This case was initiated by Clark’s motion to vacate his sentence pursuant to

28 U.S.C. § 2255, filed in the district court, raising five claims of ineffective

assistance of counsel and one claim that he was subjected to double jeopardy

because of the administrative forfeiture of the seized currency. The district court,

finding the record sufficiently developed to permit resolution of the issues

without an evidentiary hearing, see United States v. Marr, 856 F.2d 1471, 1472




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(10th Cir. 1988), rejected all Clark’s claims and denied his motion for a

certificate of appealability.

      There are four issues which Clark contends justify the grant of a certificate

of appealability: 1) the district court failed to determine that he understood the

nature and consequences of his plea, in violation of Fed. R. Crim. P. 11; 2) trial

counsel rendered ineffective assistance of counsel by advising him to plead guilty

to a conspiracy charge that could not be proven because he conspired only with

government agents and informants; 3) trial and appellate counsel rendered

ineffective assistance of counsel by failing to argue several sentencing issues; and

4) Clark’s conviction and the administrative forfeiture of his currency violated the

constitutional prohibition against double jeopardy.

      Fed. R. Crim. P. 11(c) provides that prior to acceptance of a plea of guilty

or nolo contendere, the court must inform the defendant of, inter alia, “the nature

of the charge to which the plea is offered.” Fed. R. Crim. P. 11(f) similarly

provides that a court shall not enter judgment upon a plea of guilty “without

making such inquiry as shall satisfy it that there is a factual basis for the plea.”

Clark argues that the district court violated its Rule 11 obligation to inform him

of the nature of the charge to which he pleaded guilty, based on the assertion that

the court did not inform him of the nature of conspiracy and did not inform him of

nor verify the requirement that a conspiracy consist of at least two genuine


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conspirators who are not government agents or informants. Insofar as Clark’s

brief can be read to rest this claim for relief directly upon allegations of Rule 11

violations, such claims are barred by his failure to raise them on direct appeal.

“[T]he failure by a defendant to raise a nonconstitutional issue on direct appeal

when he was able to do so ordinarily will bar collateral review of that issue under

Section 2255.” United States v. Gattas, 862 F.2d 1432, 1435 (10th Cir. 1988)

(citing United States v. Smith, 844 F.2d 203, 207 (5th Cir. 1988); United States v.

Craig, 827 F.2d 393, 394 (8th Cir. 1987)).

      Liberal reading of Clark’s pro se pleadings, however, requires that we

construe his allegations as a claim that his guilty plea was involuntary as a result

of ineffective assistance of counsel, a claim properly brought under Section 2255.

“When an involuntariness [of a guilty plea] claim rests on the faulty legal

decisions or predictions of defense counsel, the plea will be deemed

constitutionally involuntary only when the attorney is held to have been

constitutionally ineffective.” Worthen v. Meachum, 842 F.2d 1179, 1184 (10th

Cir. 1988) (citing Hill v. Lockhart, 474 U.S. 52 (1985)), overruled on other

grounds by Coleman v. Thompson, 501 U.S. 722 (1991).

      To prevail on a claim of ineffective assistance of counsel, a defendant must

show both that his attorney’s performance was deficient and that the deficient

performance prejudiced his defense. See Strickland v. Washington, 466 U.S.


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668, 690-94 (1984). Clark’s claim of ineffectiveness turns on the assertion that

counsel failed to inform him of the alleged fact that a conspiracy charge was

unavailing against him because all members of the charged conspiracy were

government agents or informants. While it is certainly correct that one cannot, as

a matter of law, conspire with only government agents and informants,      see United

States v. Newman , 733 F.2d 1395, 1402 (10th Cir. 1984), that was not the charge

in this case. Clark was explicitly informed that he was charged with being

“involved with Henry Wesley Barnes a co-conspirator.” Change of Plea Hr’g Tr.

at 27, 42. We have already upheld the sentencing court’s conclusion that Clark

directed and supervised co-conspirator Barnes, who was not a government agent.

See Clark , 1995 WL 445705 at *1-2.

      The first branch—deficient performance—of the Strickland ineffective

assistance test is not satisfied in this case because of the strong evidence in the

record of the involvement of Clark’s co-defendant Barnes in the conspiracy. The

record contains an affidavit by Clark’s trial counsel, William Bock, that objection

to Clark’s § 3B1.1(c) enhancement would be frivolous “[b]ecause of the existence

of pictures, audio tapes, and evidence that a co-defendant was present during the

transaction and working directly for the defendant.” (II R. Doc. 130 at 2 (Aff. of

William Bock)). Therefore, even if, as Clark alleges, Bock did not inform him of

the requirement that a non-informant enter the conspiracy, an allegation that is


                                          -5-
contrary to Clark’s earlier statement at the plea hearing that his counsel informed

him of the meaning of conspiracy, such alleged failure would not constitute

deficient performance in the face of the compelling record evidence

demonstrating the involvement of Barnes as a co-conspirator.

       Equally unavailing are Clark’s numerous additional claims of ineffective

assistance arising out of his sentencing. The district court enhanced Clark’s

sentence under U.S.S.G. § 3B1.1 for his managerial role in the conspiracy. We

have already found strong support in the record for the conclusion that Clark

supervised the activities of coconspirator Barnes. See United States v. Clark,

1995 WL 445705, at *2. 1 Thus defendant’s counsel did not render deficient

performance in reaching a strategic decision not to contest further the imposition

of the enhancement.

       Trial counsel also did not object to a dangerous weapon enhancement

under U.S.S.G. § 2D1.1. Clark, in challenging this decision not to object,

presents nothing to refute the district court’s conclusion, based on trial counsel’s

affidavit, that counsel reasonably concluded objection to the § 2D1.1

enhancement was without merit in light of the uncontested evidence that a

firearm was found in the van in which Clark and Barnes traveled to the site of the


       1
        To the extent that this § 2255 petition challenges the underlying merits of the
§ 3B1.1 enhancement, it is an improper attack on our decision on direct appeal. See
United States v. Prichard, 875 F.2d 789, 790-91 (10th Cir. 1989).

                                           -6-
cocaine transaction. The requisite proximity between defendant and weapon for

a § 2D1.1 enhancement is proved by a showing “‘that a temporal and spatial

relation existed between the weapon, the drug trafficking activity, and the

defendant.’” United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993)

(quoting United States v. Eastland , 989 F.2d 760, 770 (5th Cir. 1993) (internal

quotation and citation omitted))   . Because this proximity was obviously met by

the presence of the weapon in the van, counsel’s decision not to object did not

constitute objectively unreasonable performance.

       During the sentencing proceedings, the government did not file, and trial

counsel did not request, due to alleged ineffectiveness, a motion under 21 U.S.C.

§ 851 (a)(1). Section § 851(a)(1) requires, for drug convictions, that “[n]o

person . . . shall be sentenced to increased punishment by reason of one or more

prior convictions . . . unless the United States attorney files an information . . .

stating in writing the previous convictions relied upon.” In this case, however,

Clark’s sentence was not enhanced beyond the established statutory maximums

and minimums, and invocation of § 851 is inapposite and provides no grounds

for a claim of ineffective assistance of counsel. See United States v. Novey, 922

F.2d 624, 628-29 (10th Cir. 1991).

       Likewise without merit is Clark’s argument that counsel’s failure to argue

for an additional downward departure for acceptance of responsibility constituted


                                          -7-
deficient performance. As the district court noted, Clark received a two-level

departure under U.S.S.G. § 3E1.1 and could be eligible for an additional one-

level departure only by “timely providing complete information to the

government concerning his own involvement in the offense” or “timely notifying

authorities of his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the court to allocate its

resources efficiently.” U.S.S.G. § 3E1.1(b)(1) & (2). Because Clark obtained

several continuances of his trial date prior to pleading guilty and providing

information, thereby rendering the conditions of § 3E1.1(b) inapplicable, we

agree with the district court that counsel did not convey ineffective assistance by

failing to seek an additional downward departure thereunder.

      We have already rejected Clark’s argument that the forfeiture of certain

currency seized from him after his arrest constituted double jeopardy, and need

not address it further here. See Clark, 84 F.3d at 382 (rejecting Clark’s double

jeopardy argument for failure to contest civil forfeiture proceeding); Orienta Park

Second, 1997 WL 312140, at *1 (rejecting Clark’s double jeopardy argument on

the merits).

      We conclude that Clark has not made a substantial showing of the denial of

a constitutional right, and deny his request for a certificate of appealability. This

matter is DISMISSED.


                                         -8-
The mandate shall issue forthwith.

                               ENTERED FOR THE COURT



                               Carlos F. Lucero
                               Circuit Judge




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