                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 30, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 10-1551
                                            (D.C. Nos. 1:08-CV-00207-JLK and
 RICHARD POWELL,                                 1:04-CR-00514-WYD-2)
                                                         (D. Colo.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.



      After a trial in federal court, Richard Powell was convicted of various drug

charges. Finding that Mr. Powell already had “two or more prior convictions for

a felony drug offense,” the district court sentenced Mr. Powell to a mandatory life

sentence. 21 U.S.C. § 841(b)(1)(A). To support its finding that Mr. Powell

previously had been convicted of two or more felony drug offenses, the court


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent except under the doctrines of law of the case, res judicata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.
pointed to one prior federal conviction and two California state convictions (the

first for transporting cocaine, the other for possessing it). On direct appeal, Mr.

Powell challenged his convictions, but largely without success. See United States

v. Powell, 220 F. App’x 805 (10th Cir. 2007) (unpublished).

      Then Mr. Powell brought a 28 U.S.C. § 2255 motion. In it, Mr. Powell

alleged that his counsel on direct appeal provided constitutionally ineffective

assistance, in violation of the Sixth Amendment, by failing to contest his

eligibility for a mandatory life sentence under § 841. To be sure, Mr. Powell

admitted, he had one prior drug felony conviction — stemming from his prior

federal drug conviction. But he disputed that either of his state drug convictions

qualified as felony convictions for purposes of qualifying for § 841’s mandatory

life sentence. In Mr. Powell’s view, his appellate counsel provided

constitutionally ineffective assistance by failing to pursue this line of argument.

The district court disagreed and denied Mr. Powell’s § 2255 motion.

      In response to this ruling, Mr. Powell sought from us a certificate of

appealability (“COA”) in order to challenge the district court’s decision.

Believing Mr. Powell’s claim “deserve[d] encouragement to proceed further,” we

granted a COA to resolve the question whether at least one of Mr. Powell’s state

convictions qualified as a felony to justify his mandatory life sentence. See Order

Granting COA (June 1, 2011).




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      We now hold the answer is yes. In doing so, we need not resolve whether a

federal court is bound by what state law calls a “felony” or “misdemeanor.”

Compare 21 U.S.C. § 802(13) (suggesting yes), with 21 U.S.C. § 802(44)

(suggesting no). Either way, at least one of Mr. Powell’s state convictions — for

transporting cocaine (conviction number A791897) — clearly qualifies as a felony

for purposes of § 841. California law deems that conviction a felony because his

crime was punishable by imprisonment in state jail. See Cal. Penal Code § 17(a).

And unlike some other types of convictions (rightly known as “wobblers”), Mr.

Powell’s conviction wasn’t eligible for conversion to a misdemeanor — as both

parties acknowledge. See People v. Feyrer, 226 P.3d 998, 1008-09 (Cal. 2010);

People v. Mauch, 77 Cal. Rptr. 3d 751, 754-55 (Cal. Ct. App. 2008). Federal law

treats this conviction as a felony, too, given that the crime was punishable by

more than a year of imprisonment. See 21 U.S.C. § 802(44); Cal. Health & Safety

Code § 11352 (1986). Under any scenario, then, Mr. Powell was clearly eligible

for the mandatory life sentence he received. And because of this he cannot show

either that his appellate counsel performed deficiently by failing to argue

otherwise, or that he was in any way prejudiced by counsel’s failure to do so. See

United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006) (counsel’s failure to

raise meritless issue is not ineffective assistance).




                                          -3-
      The judgment of the district court is affirmed. Mr. Powell’s motion to

supplement his brief is granted.



                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




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