                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                           FEB 24 2000
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 99-5147
                                                  (D.C. No. 97-CIV-121-E)
 JESSE JONES, JR.,                                      (N.D. Okla.)

           Defendant - Appellant.


                               ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. Jones seeks to appeal from the denial of his 28 U.S.C. § 2255 motion.

In March, 1984, Mr. Jones was convicted of numerous counts involving the

possession of cocaine and firearms. On direct appeal, his sentence was affirmed

by this court. See No. 84-1667 (10th Cir. Nov. 28, 1985). In his § 2255 motion,

Mr. Jones challenged the validity of an affidavit used to obtain a critical search


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
warrant which led to the charges against him and made several claims of

ineffective assistance of counsel. The district court held a Franks hearing.

See Franks v. Delaware, 438 U.S. 154 (1978). After hearing the evidence, the

court denied the habeas motion. He contends that the district court abused its

discretion in not holding a hearing on his ineffective assistance claims. Mr. Jones

now seeks a certificate of appealability.

      In 1983, Gerald Isaacs, a Tulsa police officer, was involved in the

investigation of narcotics cases. He testified that for several months in 1983 he

worked with confidential informant Roy Lee Dunn. According to the officer,

Dunn provided him with certain information about Mr. Jones’ involvement in

narcotics activity. The officer then relayed this to FBI Agent Ronald Bell, who

used the information as the basis for an affidavit to obtain a search warrant for

Mr. Jones.

      A dispute about this affidavit arose in 1989 when the informant was called

by Mr. Jones as a witness in an IRS tax proceeding. During the scope of this

proceeding, the informant testified that he did not even know the officer and had

never given him any information relating to Mr. Jones. The Franks hearing

conducted by the court can be summarized as follows: the officer testified that he

had used the informant in the past and had no reason to question his reliability;

the FBI agent testified that he had used information from the officer before and


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had no reason to question his reliability; and the informant testified that any

information he had provided to the Tulsa Police department was false. Based

upon inconsistencies in his testimony, the district court specifically found that the

informant was not a credible witness and denied the § 2255 motion.

      We review the district court’s conclusions of law de novo and its findings

of fact for clear error. See United States v. Cox, 83 F.3d 336, 338 (10th Cir.

1996). The trial court found that the informant’s testimony was not credible and

Mr. Jones does not direct us to any evidence that this finding was clearly

erroneous. Therefore, Mr. Jones’ claim must rest upon the testimony of the other

witnesses, specifically the officer and the FBI agent. Without any evidence that

the affidavit was based upon “deliberate falsehood or . . . reckless disregard for

the truth,” the claim must fail. Franks, 438 U.S. at 171.

      Our resolution of the Franks issue is also relevant to Mr. Jones first claim

of ineffective assistance based on trial counsel’s failure to call the informant as a

witness. “Generally, the decision whether to call a witness rests within the sound

discretion of trial counsel.” Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.

1998). Our holding that the affidavit was adequate to support the search warrant

dispels Mr. Jones argument that seized evidence would have been excluded had

the informant testified at the suppression hearing. Therefore, Mr. Jones has failed

to show that he was prejudiced in any way and his first ineffective assistance


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claim must fail.

      In his second ineffective assistance claim, Mr. Jones asserts that appellate

counsel was deficient in failing to challenge the sufficiency of the evidence on his

continuing criminal enterprise conviction, 21 U.S.C. § 848. Specifically, Mr.

Jones asserts that the government failed to prove that he had a leadership role in

regards to “five or more other persons.” § 848(c)(2)(A). After a review of the

entire record, the district court found that the government had adequately

demonstrated this element of the crime. On this appeal, Mr. Jones fails to allege

any prejudice from counsel’s actions; he merely states that he “was entitled to

have this argument raised on direct appeal.” Aplt. Br. at 22. Therefore, this

claim must also fail.

      Finally, Mr. Jones claims that appellate counsel was ineffective for failing

to challenge the continuing criminal enterprise jury instructions given by the trial

court. He relies upon the Supreme Court’s decision in Richardson v. United

States, 119 S.Ct. 1707 (1999) as support for this proposition. Appellate counsel

was not ineffective for failing to anticipate an issue based on a case decided over

ten years after the appeal became final. Moreover, Mr. Jones has once again

failed to demonstrate any prejudice from this action.

      Having disposed of Mr. Jones’ claims of ineffective assistance, we

conclude that the district court did not abuse its discretion in not holding a


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hearing on these claims. See United States v. Whalen, 976 F.2d 1346, 1348 (10th

Cir. 1992).

      We DENY the request for a certificate of appealability, DENY Mr. Jones’

motion to file a pro se supplemental brief and DISMISS the appeal.



                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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