                                                                         FILED
                                                             United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                  Tenth Circuit

                            FOR THE TENTH CIRCUIT                  August 31, 2015
                        _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                     No. 15-3076
                                           (D.C. Nos. 2:14-CV-02508-JWL and
DWIGHT RHONE,                                    2-09-CR-20133-JWL-7)
                                                        (D. Kan.)
     Defendant - Appellant.

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UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                     No. 15-3077
                                           (D.C. Nos. 2:14-CV-02487-JWL and
THEODORE McDOWELL,                               2:09-CR-20133-JWL-8)
                                                        (D. Kan.)
     Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

     Plaintiff - Appellee,
                                                       No. 15-3078
v.                                         (D.C. Nos. 2:14-CV-02500-JWL and
                                                 2:09-CR-20133-JWL-9)
SHELDON McINTOSH,                                       (D. Kan.)

     Defendant - Appellant.

–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 15-3079
v.                                                (D.C. No. 2:14-CV-02498-JWL and
                                                       2:09-CR-20133-JWL-10)
SAMORA McCINTOSH,                                              (D. Kan.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                  _________________________________

       Defendants Dwight Rhone, Theodore McDowell, Sheldon McIntosh, and Samora

McIntosh were convicted by a jury in 2011 of conspiracy to distribute and possess with

intent to distribute marijuana in violation of 21 U.S.C. § 841. This court affirmed their

convictions and sentences on direct appeal in 2013. See United States v. McDowell, 713

F.3d 571 (10th Cir. 2013); United States v. Rhone, 514 F. App’x 772 (10th Cir. 2013);

United States v. McIntosh, 514 F. App’x 776 (10th Cir. 2013); United States v. McIntosh,

514 F. App’x 783 (10th Cir. 2013).

       Defendants filed separate motions to vacate their convictions under 28 U.S.C. §

2255, alleging multiple instances of ineffective assistance of counsel. The government

filed separate responses to the four motions to vacate, but Defendants filed a consolidated

reply and thereafter made all submissions jointly. The district court dismissed the four


       *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             2
motions to vacate, and we procedurally consolidated the cases after Defendants filed a

joint notice of appeal. Defendants now seek a certificate of appealability to appeal the

dismissal of their § 2255 motions.

       Specifically, Defendants argue their trial and appellate attorneys were deficient in

litigating a failed motion to suppress evidence obtained from the execution of a warrant

to search the Arizona residence where the marijuana was ultimately found. Defendants

also argue, among other things, that their trial and appellate counsel failed to raise the

government’s alleged violation of the Speedy Trial Act and also failed to investigate and

raise issues related to governmental and judicial misconduct.

       The district court found the warrant supported by probable cause based on the

strong scent of marijuana detectable from the sidewalk and driveway of the house

and noted that we upheld the dismissal of Defendants’ suppression motion on direct

appeal to this court. The district court concluded that Defendants’ other claims had

no merit and, regardless of their merit, did not result in any prejudice which had a

substantial likelihood of affecting the outcome of the trial. See Strickland v.

Washington, 466 U.S. 668, 669 (1984) (setting out standard for ineffective assistance

of counsel claims).

       Prisoners may have their convictions vacated under § 2255 “[i]f the court finds

that the judgment was rendered without jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral attack, or that there has been such a

denial or infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). The district court found

                                              3
that none of these conditions had been met. After thoroughly reviewing Defendants’

arguments and the record on appeal, we are persuaded that reasonable jurists would not

debate the correctness of the district court’s resolution of these Defendants’ claims. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Therefore, for substantially the same reasons given by the district court in its

thorough and well-reasoned opinion, we DENY Defendants’ request for a certificate

of appealability and DISMISS the appeals.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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