                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 29 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 03-6223
                                                   (D.C. Nos. 02-CV-1258-R
    EDWARD HOWARD KELL, JR.,                             & 00-CR-25-R)
                                                         (W.D. Okla.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and ANDERSON , Circuit Judges, and             KANE , ** Senior
District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. The 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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
        Defendant-appellant Edward Howard Kell, Jr. was convicted on a guilty

plea of several drug-related charges, including conspiracy, possession, and

distribution.   See United States v. Kell , 41 Fed. Appx. 350, 352 (10th Cir. 2002)

(setting out charges to which defendant pled guilty). He was sentenced to 210

months in prison. His convictions were affirmed on direct appeal.      Id. He then

filed the underlying motion to vacate, set aside, or correct sentence and

conviction, pursuant to 28 U.S.C. § 2255. The district court denied relief. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                   Nature of the Case

        Mr. Kell contends that his trial and appellate attorneys rendered ineffective

assistance in their advice and handling of his guilty plea to count 1, which

charged him with conspiracy to possess with intent to distribute cocaine powder,

cocaine base and phencyclidine.   1
                                      He avers that trial counsel gave him incorrect

and misleading information, on which he relied, causing him to believe that he

would receive a sentence far shorter than the sentence actually imposed. He

expected his sentence to be based only on the charge of conspiracy to distribute

cocaine powder, but the sentence included the charge based on cocaine base, as

well.


1
      The prosecution did not offer Mr. Kell a plea agreement to reduced charges
because he declined to agree to the standard condition that he cooperate with the
prosecution.

                                            -2-
       The district court considered affidavits and heard testimony from Mr. Kell

and one of his trial attorneys, Mack K. Martin, who also represented Mr. Kell on

direct appeal. After making extensive written findings of fact and conclusions of

law, the district court denied Mr. Kell’s § 2255 motion, and also denied his

request for a certificate of appealability (COA). Mr. Kell appeals. This court

granted a COA on the following issues:

       Whether [Mr. Kell] was denied his Sixth and Fourteenth Amendment
       rights to effective assistance of counsel in connection with his guilty
       plea to count 1 of the indictment and in connection with his
       attorneys’ failure to challenge the voluntariness of his plea on direct
       appeal.

                                     Legal Standards

       A district court may grant relief under § 2255 if it determines 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. We

review de novo the district court’s rulings on questions of law, and its findings of

fact for clear error.   United States v. Wiseman , 297 F.3d 975, 978 (10th Cir.

2002). “A claim of ineffective assistance of counsel presents a mixed question of

law and fact which we review de novo.”      United States v. Kennedy , 225 F.3d

1187, 1197 (10th Cir. 2000).


                                            -3-
       A guilty plea is valid only if it is knowing, intelligent and voluntary.    See

United States v. Rhodes , 913 F.2d 839, 843 (10th Cir. 1990). An attorney’s

material misrepresentation of the consequences of a plea may render a plea

involuntary. See United States v. Williams , 919 F.2d 1451, 1456 (10th Cir. 1990).

A defendant who challenges a guilty plea based on ineffective assistance of

counsel must demonstrate (1) deficient performance by counsel that (2) caused

prejudice to the defendant,   United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir.

1993), such that “but for counsel’s errors, [defendant] would not have pleaded

guilty and would have insisted on going to trial,”      Hill v. Lockhart , 474 U.S. 52,

59 (1985). Claims of ineffective assistance of counsel are properly brought in

collateral proceedings, rather than on direct appeal.      United States v. Edgar , 348

F.3d 867, 869 (10th Cir. 2003).

                                         Discussion

       We first consider Mr. Kell’s claim that his trial attorneys rendered

constitutionally ineffective assistance relative to his guilty plea to count 1. As

noted above, he claims that the attorneys informed him that his sentence would

not include any reference to cocaine base, but would be based only on cocaine

powder. He contends that his attorneys predicted a ten-year sentence. In fact, the

210-month sentence imposed included significant additional prison time based on




                                             -4-
cocaine base. Mr. Kell maintains that if he had known the true situation, he

would not have entered a guilty plea to count 1.

      After considering the affidavits and the evidence adduced at the hearing,

the district court found not credible Mr. Kell’s claim that he would not have

pleaded guilty if he had been told he was pleading guilty to conspiracy to

distribute cocaine base. The court noted Mr. Kell’s acknowledgment at the time

he entered his guilty plea that the penalty could be the same as if he had not

pleaded guilty and been convicted, that the minimum punishment was ten years

and the maximum was life in prison, that the judge would decide the sentence,

that his plea was voluntary, and that he was satisfied with his attorneys’ services.

      By affidavit, attorney Martin denied having told Mr. Kell that the maximum

sentence he could expect was ten years or that his sentence would not include

cocaine base. Rather, Mr. Martin stated that he explained to Mr. Kell that they

could make a legal argument in hopes of convincing the judge not to apply the

sentencing guideline for cocaine base. In addition, Mr. Martin testified at the

hearing that he discussed with Mr. Kell before the guilty plea that the prosecution

would argue for a sentence based on cocaine base as well as cocaine powder, and

that Mr. Kell never requested to withdraw his guilty plea. The district court

found attorney Martin’s testimony more credible than Mr. Kell’s, and determined




                                         -5-
that Mr. Kell had been informed that he could be held accountable for cocaine

base and that he had not requested to withdraw his guilty plea.

      On appeal, Mr. Kell maintains that the district court’s findings are clearly

erroneous because, on cross-examination, Mr. Martin stated that the guilty plea

was “fashioned” to admit guilt to a conspiracy for powder cocaine only, not for

cocaine base. He further argues that Mr. Martin’s advice to enter a guilty plea

was constitutionally ineffective because Mr. Kell had, in fact, been charged with a

conspiracy that included cocaine base. Consequently, according to Mr. Kell, the

advice to enter a guilty plea to this charge and not expect the sentence to reflect

the cocaine base element, was manifestly ineffective.

      Mr. Kell does not contest the district court’s finding that at the time he

entered his guilty plea, he acknowledged that he could be sentenced to life and

that the sentencing decision was entirely up to the sentencing judge. “It is well-

established that a defendant’s statements on the record, ‘as well as any findings

made by the judge accepting the plea, constitute a formidable barrier in any

subsequent collateral proceedings.’”   Romero v. Tansy , 46 F.3d 1024, 1033 (10th

Cir. 1995) (quoting Blackledge v. Allison , 431 U.S. 63, 74 (1977)). The district

court also found that Mr. Kell was informed before he entered his guilty plea that

his sentence could include cocaine base. We are not persuaded that the district

court’s factual findings are clearly erroneous. Therefore, we hold that Mr. Kell


                                          -6-
has failed to demonstrate that his guilty plea was not knowing, intelligent and

voluntary.

      Moreover, we “must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”    Strickland v.

Washington , 466 U.S. 668, 689 (1984) (quotation omitted). We conclude that Mr.

Kell has not overcome this presumption in light of the following circumstances:

(1) Mr. Martin informed Mr. Kell that his sentence could include cocaine base,

(2) the prosecution had an undisputedly strong case, and, (3) by entering a guilty

plea, Mr. Kell would receive a three-point adjustment for acceptance of

responsibility. Because we find no deficient attorney performance, we need not

address whether Mr. Kell was prejudiced by his attorneys’ performance.      Id. at

697. Accordingly, we hold that the district court properly denied this claim.

      The second issue covered by the COA is whether appellate counsel

rendered ineffective assistance by failing to challenge on direct appeal the

voluntariness of Mr. Kell’s plea. Mr. Kell argues generally that the record

demonstrates a reasonable probability that if this issue had been raised, the

outcome of the appeal would have been different.




                                           -7-
       “When a defendant alleges his appellate counsel rendered ineffective

assistance by failing to raise an issue on appeal, we examine the merits of the

omitted issue. If the omitted issue is without merit, counsel’s failure to raise it

does not constitute constitutionally ineffective assistance of counsel.”    United

States v. Cook , 45 F.3d 388, 392-93 (10th Cir. 1995) (quotation and citation

omitted). Based on our review of the record, and applying the standards of

review set out above, we determine that appellate counsel’s performance was not

deficient for failing to raise this issue on appeal. Therefore, we reject Mr. Kell’s

claim that his appellate counsel was ineffective.

                                        Conclusion

       Having determined that neither trial nor appellate counsel provided

constitutionally ineffective assistance, we conclude that the district court’s

decision to deny relief was correct. Therefore, the judgment of the district court

is AFFIRMED.



                                                         Entered for the Court



                                                         Stephen H. Anderson
                                                         Circuit Judge




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