                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          July 24, 2013
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                           No. 13-8029
         v.                                                  (D. Wyoming)
    JASON CLAYCOMB,                                 (D.C. No. 2:11-CV-00229-CAB;
                                                      No. 2:07-CR-00196-CAB-5)
               Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


       Jason Claycomb was convicted in federal district court on drug-and-gun

charges. After unsuccessfully appealing, he moved to vacate his conviction under

28 U.S.C. § 2255.       With only partial relief, Mr. Claycomb appeals based on

ineffective assistance of counsel.        The district court denied a certificate of

appealability, and Mr. Claycomb asks us to issue the certificate.

       In asking for a certificate of appealability, Mr. Claycomb alleges that: (1) his

trial and appellate attorneys should have challenged the admissibility of expert

testimony about the weight of the methamphetamine and cocaine being sold, and

(2) his appellate counsel should have challenged the government’s proof on

*
       This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive
value consistent with FED. R. APP. P. 32.1 and TENTH CIR. R. 32.1.
possession of a machine gun because it fell outside the time period alleged in the

indictment.    We conclude that the alleged deficiencies were not prejudicial

because: (1) the government had ample other evidence regarding the weight of the

drugs, and (2) evidence involving the machine gun had covered the time period

alleged in the indictment.      Thus, we deny the request for a certificate of

appealability and, as a result, dismiss the appeal.

I.    The Proceedings

      Mr. Claycomb was convicted of:

      !       conspiring to possess with intent to distribute methamphetamine and
              cocaine (21 U.S.C. § 846),

      !       distributing methamphetamine and cocaine (21 U.S.C. § 841(a)(1)),

      !       possessing a machine gun in furtherance of a drug-trafficking crime
              (18 U.S.C. § 924(c)(1)(B)(ii)), and

      !       possessing a firearm not registered in the National Firearms
              Registration and Transfer Record (26 U.S.C. §§ 5841, 5845(a), and
              5861(d)).

The district court sentenced Mr. Claycomb to a term of 360 months’ imprisonment

on the conspiracy count, a consecutive term of 360 months’ imprisonment on the

§ 924(c)(1)(B)(ii) count, and a concurrent term of 120 months’ imprisonment on

the gun-registration count.

      Mr. Claycomb appealed the conviction, and we affirmed. United States v.

Claycomb, 372 F. App’x 832, 837-41 (10th Cir. 2010). He then filed a § 2255

motion, challenging the conviction on each count.      In the motion, he alleged

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ineffective assistance of trial and appellate counsel and contended that his counsel

had failed to:

      !      object to testimony from law enforcement agents regarding the
             quantity of methamphetamine and cocaine involved in the conspiracy,

      !      object to the admission of a government exhibit deemed a “certificate
             of non-existence of a record,” which stated that the machine gun was
             not registered to Mr. Claycomb, and

      !      challenge the sufficiency of the evidence regarding possession of a
             machine gun between August 2006 and November 2006.

      The district court granted Mr. Claycomb’s § 2255 motion with respect to his

conviction for possessing an unregistered firearm, ruling that admission of the

“certificate of non-existence of a record” had violated the Confrontation Clause.

As a result, the court vacated the conviction for possession of an unregistered

firearm. On the other counts, however, the court denied Mr. Claycomb’s § 2255

motion and his application for a certificate of appealability.

II.   Standard for a Certificate of Appealability

      To appeal the district court’s denial of relief under § 2255, Mr. Claycomb

must make “a substantial showing of the denial of a constitutional right” and obtain

a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B), (c)(2) (2006). We may

grant a certificate of appealability only if the applicant demonstrates that

“reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were




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‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (citation omitted).

III.   Standard for Ineffective Assistance of Counsel

       To establish ineffective assistance of counsel, Mr. Claycomb must show that:

       !     his counsel’s representation “fell below an objective standard of
             reasonableness;” and

       !     “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, 687-88, 694 (1984). The court need not

address the first component “[i]f it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice.” Id. at 697.

IV.    Ineffective-Assistance Claim Regarding Drug Quantity

       Mr. Claycomb argues in part that his trial and appellate counsel failed to

challenge testimony from law enforcement officers regarding the quantity of

methamphetamine and cocaine distributed through the conspiracy.

       A state agent testified that he and his colleagues had: (1) stopped a car driven

by one of Mr. Claycomb’s conspirators, and (2) seized approximately one-half

pound of a substance believed to be methamphetamine. A chemist testified that he

had tested a 218.6-gram sample of the substance and identified it as

methamphetamine. The chemist’s testimony about the weight, however, was based

on someone else’s report.


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      A police detective also testified about the seizure of more methamphetamine

during another traffic stop. According to the police detective, this seizure involved

285 grams. A chemist testified that he had performed tests indicating that the 285-

gram sample contained methamphetamine, but added that someone else had done

the weighing.

      According to Mr. Claycomb, his attorneys rendered ineffective assistance by

failing to object to the testimony based on the Confrontation Clause. He notes that

the government did not offer testimony from the individuals who had weighed the

substances. Thus, the weights were based on second-hand reports. Mr. Claycomb

argues that if his counsel had objected under the Confrontation Clause, the

prosecutor could not have established possession of more than 500 grams of a

substance containing a detectable amount of methamphetamine and cocaine. This

argument is unconvincing because the alleged omission did not prejudice Mr.

Claycomb.

      In our circuit, the prosecutor need not use scientific evidence to prove the

identity of a substance. United States v. Sanchez DeFundora, 893 F.2d 1173, 1175

(10th Cir. 1990).      Instead, the prosecutor may rely on lay testimony or

circumstantial evidence. Id.

      The prosecutor used lay testimony here to show the weights and identify the

substances as methamphetamine and cocaine. From that evidence, the jury would

likely have found (even without the expert testimony) that Mr. Claycomb

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participated in a conspiracy to distribute more than 500 grams of a substance

containing methamphetamine and cocaine.

       For example, one conspirator testified about “either five or six trips” to Mr.

Claycomb to buy “a half pound apiece” of methamphetamine. Tr. Trans. vol. IV at

128. Another conspirator reported that he had obtained approximately three to five

pounds of cocaine from Mr. Claycomb to distribute in Wyoming. See Tr. Trans.

vol. III at 95-96.

       The prosecutor also used lay testimony to show that the substances consisted

of methamphetamine and cocaine. See, e.g., Tr. Trans. vol. III at 85, 96, 114-15,

135 (testimony from an admitted user of cocaine that the defendant had provided

him with the drug); id. at 174-75, 177-79 (testimony from an admitted

methamphetamine addict that Mr. Claycomb had provided her with the drug). And,

one witness testified that the drug ring had “regular customers” in Wyoming. Id. at

94. From this evidence, the jury likely would have concluded that the substances

were actually methamphetamine and cocaine even if defense counsel had

successfully objected to the expert testimony.       See United States v. Sanchez

DeFundora, 893 F.2d 1173, 1175 (10th Cir. 1990). In these circumstances, appeal

counsel’s alleged omission did not prejudice Mr. Claycomb. Accordingly, he is not

entitled to a certificate of appealability regarding the ineffective-assistance claim

involving a failure to challenge the government’s evidence on drug quantity.




                                          6
V.    Ineffective-Assistance Claim Regarding Possession of a Firearm in
      Furtherance of a Drug-Trafficking Crime

      Mr. Claycomb further contends that his appellate counsel was ineffective by

failing to challenge the evidence supporting the § 924(c)(1)(B)(ii) count as an

improper variance from the indictment. In Mr. Claycomb’s view, the evidence did

not show use of a machine gun in furtherance of a drug-trafficking crime between

August 2006 and November 2006 (as alleged in the Third Superceding Indictment).

Mr. Claycomb does not challenge the evidence that he possessed the machine gun.

Instead, he argues only that the government failed to establish possession during the

alleged period. In our view, however, the alleged omission in the appeal was not

prejudicial.

      If counsel had raised the issue on direct appeal, we could have reversed only

if we found a variance that had proven fatal. See United States v. Williamson, 53

F.3d 1500, 1513 (10th Cir. 1995). Thus, for prejudice, Mr. Claycomb must show a

reasonable probability that counsel could have shown a fatal variance in the direct

appeal. See Olden v. United States, 224 F.3d 561, 566 (6th Cir. 2000) (rejecting an

ineffective-assistance claim based on the failure to establish prejudice from a

purported variance).

      A variance takes place when the charge stays the same and the trial evidence

proves facts materially different from those in the indictment.      Hunter v. New

Mexico, 916 F.2d 595, 598-99 (10th Cir. 1990). A variance becomes fatal only if:


                                         7
      !      the defendant could not have anticipated the eventual evidence at trial
             or

      !      the conviction would not have prevented a subsequent prosecution.

United States v. Rinke, 778 F.2d 581, 590 (10th Cir. 1985). We conclude that Mr.

Claycomb has not shown a variance, much less one that is fatal.

      To determine whether a variance exists, we view the evidence in the light

most favorable to the government and give it the benefit of all reasonable

inferences. United States v. Fishman, 645 F.3d 1175, 1189 (10th Cir. 2011). This

evidence included testimony by Alan Engdahl and Detective Scott Gammon, who

indicated that Mr. Claycomb had possessed the machine gun 5-6 weeks before his

arrest on November 15, 2006. Tr. Trans. vol. IV at 122-23 (Engdahl); Tr. Trans.

vol. V at 127-28 (Gammon). If the jury had credited this testimony, it would likely

have found guilt on the charged offense because the indictment covered the 5-6

week period before the arrest.

      Mr. Claycomb points to contrary evidence from other witnesses, but we must

view the evidence in the light most favorable to the government. And, viewing the

evidence in this manner, we do not think any reasonable jurists would have expected

us to find a variance if appellate counsel had raised the issue.

      Even if a variance existed, however, Mr. Claycomb has not shown that it

would be fatal. Though he argues that the evidence went beyond the time period in

the indictment, he does not suggest an inability to anticipate the eventual testimony

or a risk of future prosecution for the same acts. As a result, no reasonable jurist
                                            8
would have expected us to find a fatal variance if appellate counsel had raised the

issue.

         In these circumstances, Mr. Claycomb is not entitled to a certificate of

appealability on his ineffective-assistance claim regarding the failure to appeal

based on an improper variance.

VI.      Conclusion

         We deny Mr. Claycomb’s application for a certificate of appealability and

dismiss this appeal.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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