                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      October 31, 2008
                                                                         Elisabeth A. Shumaker
                                       TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                           No. 08-2141
                                                (D. Ct. Nos. 07-CV-00899-WJ-LAM and
 CHARLES ELLWOOD GWATHNEY,                                04-CR-01553-WJ-1)
                                                              (D. N. Mex.)
               Defendant - Appellant.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       Petitioner-Appellant Charles Gwathney, a federal prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal from the district court’s denial of

his habeas corpus petition brought under 28 U.S.C. § 2255. We take jurisdiction under 28

U.S.C. § 1291, DENY Mr. Gwathney’s request for a COA, and DISMISS this appeal.

                                   I. BACKGROUND

       The following recitation of events leading to Mr. Gwathney’s arrest and conviction

for possession of marijuana is taken from our opinion affirming his conviction on direct

appeal. See United States v. Gwathney, 465 F.3d 1133 (10th Cir. 2006).

       On May 23, 2004, Mr. Gwathney, a commercial truck driver, stopped at the

Gallup, New Mexico Port of Entry along Interstate 40 near the Arizona-New Mexico state
line to obtain a trip permit through New Mexico for his load of potatoes. The truck was

owned by Solomon Shaw. Officer Smid asked Gwathney for his driver’s license, medical

card, tractor and trailer registration, log book and bill of lading, all of which were

provided. The bill of lading listed the truck as carrying 833 boxes of red potato creamers,

required the truck to be maintained at forty-two degrees and was signed by Mr.

Gwathney. The log book indicated potatoes had been loaded on the truck in Phoenix on

May 21, but that Mr. Gwathney did not leave Phoenix until May 23. Although the truck

was refrigerated, Officer Smid thought it unusual Mr. Gwathney would load the potatoes

prior to having his truck repaired because potatoes are perishable goods. Officer Smid

asked Mr. Gwathney why he had taken over a day to leave Phoenix after his truck was

loaded. Mr. Gwathney explained the delay was caused by repairs he had made to his

truck. Mr. Gwathney provided Officer Smid with an invoice for the repair work. The

invoice showed the repair work had been completed on May 21. It also indicated Mr.

Gwathney had paid almost $14,000 in cash for the repairs.

       Officer Smid instructed Mr. Gwathney to pull the truck into a bay where he would

conduct a level 2 inspection.1 After checking the outside of the truck, Officer Smid

instructed Mr. Gwathney to unlock the doors to the trailer. Upon opening the doors,

Officer Smid discovered one of the pallets had tipped against the wall of the truck during

transit. Officer Smid used a ladder to climb over the potatoes to make sure the rest of the

       1
       “Inspectors conduct three levels of inspections at the inspection bays. Of these,
Level 1 is the most thorough.” United States v. Vasquez-Castillo, 258 F.3d 1207, 1209
(10th Cir. 2001).

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pallets were secure and in place. While climbing over the leaning pallet, Officer Smid

detected shoe prints and crushed boxes indicating someone had walked on the pallets

after they were loaded on the truck. Officer Smid followed the footprints and smashed

boxes until he reached an open area in the truck. There, he discovered several large

non-conforming brown boxes that had numbers spray-painted on them and were wrapped

in brown packing tape. They did not have the word “Potato” on them, and Officer Smid

believed them to contain contraband. At that point, Officer Smid crawled out of the truck

and handcuffed Mr. Gwathney for the officer’s protection while he continued his search.

Upon returning to the boxes, Officer Smid cut them open and discovered what eventually

was determined to be 152.2 kilograms of marijuana. Officer Smid then arrested Mr.

Gwathney.

       On August 11, 2004, Mr. Gwathney was indicted for possession with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). On August 30, 2004, Mr. Gwathney filed a motion to suppress the evidence

found in the commercial trailer. He argued Officer Smid lacked probable cause to

conduct a special safety search. After an evidentiary hearing, the district court denied Mr.

Gwathney’s motion.

       Beginning December 15, 2004, Mr. Gwathney was tried before a jury. At trial,

Mr. Gwathney claimed he had no knowledge of the drugs on his truck. He explained the

payment of $14,000 in cash for the truck repairs came from money wired to him by

Solomon Shaw, who sent the money via Western Union. In rebuttal, the government

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introduced Exhibit 55—an administrative subpoena directed toward Western Union

requiring the provision of any wire transfer records for Mr. Gwathney or Solomon Shaw

from May 13, 2004 through May 23, 2004, coupled with Western Union’s response that it

could find no such records. Mr. Gwathney objected to the admission of the evidence

based on the lack of an adequate foundation. The district court allowed admission of

Western Union’s response based on the business record exception of Rule 803(6) of the

Federal Rules of Evidence. On December 16, 2004, the jury convicted Mr. Gwathney.



       On May 11, 2005, Mr. Gwathney filed a motion for a new trial based on newly

discovered evidence. The new evidence was a Western Union wire transfer receipt

showing a transfer of $921.00 from Solomon Shaw to Mr. Gwathney on May 14, 2004,

which contradicted Western Union’s report attached to Exhibit 55. On May 25, 2005, the

district court denied the motion. On May 27, 2005, Mr. Gwathney was sentenced to 137

months’ imprisonment.

       After an unsuccessful direct appeal, Mr. Gwathney filed this petition for habeas

relief. The district court denied relief on all four claims raised in the petition and further

denied a COA. Mr. Gwathney now seeks a COA from this court.

                                     II. DISCUSSION

       We will issue a COA to appeal from the denial of a habeas petition “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). When the district court denies the petitioner’s claim on the merits,

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“[t]he petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). When the petition is denied on procedural grounds, the petitioner must

demonstrate “that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

       Mr. Gwathney raises several claims in his § 2255 petition, his memorandum in

support of the petition, his application for a COA, and his opening brief on appeal. We

address them in turn.

A.     Ineffective Assistance of Counsel

       In his habeas petition and in his application for a COA, Mr. Gwathney contends

that his counsel was ineffective in failing to challenge Officer Smid’s allegedly

unconstitutional search of the truck’s sleeper compartment and arrest of Mr. Gwathney.2

To prevail on his ineffective assistance of counsel claims, Mr. Gwathney must satisfy the

two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). First, he

must show that counsel’s performance fell below an objective standard of reasonableness.

466 U.S. at 687–88. Second, he must show that there is “[a] reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been


       2
       Although Mr. Gwathney’s § 2255 petition raised additional ineffectiveness claims
based on his counsel’s failure to challenge jury instructions and the purportedly false trial
testimony of Officer Smid, he does not mention these claims in his filings before this
court. Thus, we consider them abandoned.

                                             -5-
different.” Id. at 694.

       Regarding the search of the sleeper compartment, Mr. Gwathney does not explain

how that search led to the discovery of marijuana in the tractor-trailer or led to the

discovery of other inculpatory evidence. Thus, Mr. Gwathney has not, at minimum,

demonstrated that any error in failing to challenge the search would have changed the

result of his trial or led to a different sentence.

       As the basis for his other claim for ineffective assistance of counsel, Mr.

Gwathney contends that he was arrested based solely on a hunch rather than on probable

cause because Officer Smid handcuffed him before discovering any marijuana. See

United States v. Davis, 94 F.3d 1465, 1467–68 (10th Cir. 1996) (arrests comport with the

Fourth Amendment only when they are supported by probable cause). Officer Smid,

however, placed Mr. Gwathney in handcuffs for the officer’s safety during the search. He

did not arrest him at that point. It is well-established that an officer may permissibly

place a suspect in handcuffs in such a situation. See Novitsky v. City of Aurora, 491 F.3d

1244, 1254 (10th Cir. 2007). Thus, we find no fault with counsel’s failure to challenge

this limited detention.

B.     Prosecutorial Misconduct

       Mr. Gwathney alleges that the prosecutor knowingly and intentionally withheld the

receipts from Western Union showing that he had received money during the relevant

time period, and that the prosecutor manufactured Exhibit 55 and knew that it was false

when he introduced it. As the district court noted, this claim is arguably barred due to

                                               -6-
Mr. Gwathney’s failure to pursue it on direct appeal. Nevertheless, the district court

addressed this issue and concluded that there is no evidence suggesting that the

introduction of Exhibit 55 resulted in such an unfair trial as to deprive Mr. Gwathney of

due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (prosecutorial

misconduct does not warrant federal habeas relief unless the conduct complained of “so

infected the trial with unfairness as to make the resulting conviction a denial of due

process”). We agree. Even without the exhibit, we explained in Mr. Gwathney’s direct

appeal that “[t]he evidence fairly screams of [Mr. Gwathney’s] knowledge of the drugs

secreted in his trailer.” Gwathney, 465 F.3d at 1142. To the extent Mr. Gwathney argues

that his counsel was ineffective in failing to challenge the exhibit on this basis, we held

on direct review that the exhibit’s admission was harmless error. Id. Thus, Mr.

Gwathney cannot show that the outcome of the proceeding would have been different

without the exhibit. See Strickland, 466 U.S. at 694.

       Additionally, Mr. Gwathney contends in his petition that the prosecution destroyed

exculpatory Brady evidence such as his trip permit and the “Level 2 Inspection Report.”

See Brady v. Maryland, 373 U.S. 83, 87 (1963). Mr. Gwathney does not explain, nor is it

clear, that this evidence is in fact exculpatory. Thus, we similarly find no merit to this

aspect of Mr. Gwathney’s prosecutorial misconduct claim and further conclude it cannot

form the basis of an ineffective assistance of counsel claim.

       Finally, Mr. Gwathney alleges that the prosecutor improperly vouched for the

credibility of a witness, see United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990),

                                             -7-
by telling the jury that the case is “about money.” This statement, however, does not

constitute vouching for a witness, and we find nothing else objectionable about it.

                                  III. CONCLUSION

       Reasonable jurists could not debate whether the district court properly denied

relief to Mr. Gwathney based on his claims for ineffective assistance of counsel and

prosecutorial misconduct. Accordingly, we DENY his request for a COA and DISMISS

this appeal. Appellant’s motion to proceed in forma pauperis is granted.



                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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