                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 20 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 03-3250
                                                 (D.C. No. 02-CV-3297-JWL)
    TIMOTHY BERNARD RIGGANS,                              (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



         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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant Timothy Riggans appeals from the denial of post-conviction

relief under 28 U.S.C. § 2255. Defendant challenged his conviction for bank



*
      This order and judgment is not binding precedent, except under the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.
larceny on four grounds. In a very thorough order, the district court explained

why defendant’s claims lacked merit. Defendant moved unsuccessfully for

reconsideration under Fed. R. Civ. P. 59(e), and then appealed. The district court

granted a certificate of appealability (COA) on two related claims: (1) whether

trial/appellate counsel (one and the same) was ineffective in failing to challenge

defendant’s conviction for bank larceny as a lesser included offense of bank

robbery, in light of later Supreme Court authority rejecting this characterization

of bank larceny; and (2) whether, in light of the same authority, defendant was

wrongfully convicted of an offense not charged in the indictment. Defendant has

requested that we grant a COA on two other issues raised in his § 2255 motion.

While we act under review standards unique to an appellate court, we fully agree

with the district court’s analysis of the substance of this case. Accordingly, we

decline to expand the COA and we affirm the denial of defendant’s § 2255 motion

for substantially the reasons articulated by the district court.

                               Claims Based on Carter

      When defendant was on trial, the law in this circuit held bank larceny to be

a lesser included offense of bank robbery.         See United States v. Brittain , 41 F.3d

1409, 1410 (10 th Cir. 1994). Facing an extremely strong prosecution case on

bank robbery, defendant’s counsel made a sound strategic decision and requested




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a lesser included offense instruction on bank larceny. The strategy succeeded, in

that the jury found defendant guilty of bank larceny rather than robbery.

      Two months later, the Supreme Court issued     Carter v. United States ,

530 U.S. 255 (2000), clarifying the elements of bank larceny and holding that it is

not a lesser included offense of bank robbery. Defendant was sentenced within

two weeks of that decision, and then took a direct appeal. On appeal, he relied on

Carter to challenge the content of the trial court’s instruction on bank larceny, but

did not argue that it was error to have instructed on the offense per se. This court

affirmed his conviction despite the omission of an element of bank larceny

identified by Carter (“carrying away” the stolen property), because “there was

overwhelming evidence that [he] carried the [stolen] money away from the bank.”

United States v. Riggans , 254 F.3d 1200, 1203 (10 th Cir. 2001).

      In this § 2255 proceeding, defendant claims that it was error to instruct on

bank larceny and that counsel was ineffective by failing to challenge the resultant

conviction on this basis. The district court fleshed out the legal deficiencies in

these claims at some length, but the basic weakness is easily summarized as

follows: defendant seeks to gain a self-created windfall by collaterally attacking

his conviction on the basis of a sound strategic decision by counsel that in all

likelihood afforded defendant a substantial benefit.




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       Defendant was able to avoid conviction on the robbery charge when the

trial court granted his request for a lesser included offense instruction on larceny,

and yet now insists he should be able to void the resultant larceny conviction by

arguing that the trial court should not have instructed on that offense. We need

not repeat the district court’s detailed analysis here. “The invited error doctrine

prevents a party from inducing action by a court and later seeking reversal on the

ground that the requested action was in error.”        United States v. LaHue , 261 F.3d

993, 1011 (10 th Cir. 2001) (quotation omitted). This doctrine has been applied on

numerous occasions to bar lesser-included-offense challenges.          See, e.g. , United

States v. Bennafield , 287 F.3d 320, 325 (4 th Cir.), cert. denied , 537 U.S. 961

(2002); United States v. Butler , 74 F.3d 916, 918 n.1 (9 th Cir. 1996); Leverett v.

Spears , 877 F.2d 921, 924 (11 th Cir. 1989). Indeed, the equitable underpinnings

of the doctrine are especially apt here, where the pre-error status quo cannot be

restored because retrial on the bank robbery charge would now be precluded by

double jeopardy principles,     see Price v. Georgia , 398 U.S. 323, 326-27 (1970).

       The applicability of the invited error doctrine also undercuts defendant’s

related claim that counsel was ineffective for not challenging the lesser include

offense instruction under     Carter during prior proceedings in this case. “If [an]

omitted issue is without merit, counsel’s failure to raise it does not constitute

constitutionally ineffective assistance of counsel.”       Parker v. Champion , 148 F.3d


                                             -4-
1219, 1221 (10 th Cir. 1998) (quotation omitted). Here, the invited error doctrine

would have precluded relief had counsel tried to overturn defendant’s conviction

either by post-trial motion or direct appeal.         See, e.g. , LaHue , 261 F.3d at 1013

(affirming denial of new trial motion on basis of invited error);         United States v.

Edward J. , 224 F.3d 1216, 1222 (10 th Cir. 2000) (rejecting appeal on basis of

invited error). Given this legal obstacle, counsel’s omission cannot support an

ineffective assistance claim.    See id. at 1222 (rejecting appellate ineffectiveness

claim because omitted issue would have been subject to invited error doctrine).

                        Claims Awaiting COA Determination

       Defendant requested a COA to appeal two other claims raised in his § 2255

motion. We agree with the district court that these claims do not rise even to the

“debatable” level and we therefore deny defendant’s request.            See generally Slack

v. McDaniel , 529 U.S. 473, 484 (2000).

       On direct appeal, defendant argued that the bank larceny instruction given

at trial failed to include as an element of the offense the act of “carrying away”

the stolen money. As counsel had not raised the objection at trial, this court

reviewed only for plain error and denied relief because the incomplete instruction

“did not seriously affect the fairness, integrity or public reputation of [the] trial.”

Riggans , 254 F.3d at 1202 (quotation omitted). Defendant claims that counsel’s

omission reflects professionally deficient performance and that the dispositive


                                                -5-
application of the plain error standard reflects the consequent prejudice to his

case. As the district court noted, however,         the reason this court held that the

fairness, integrity, and public reputation of the trial were not seriously affected

was that “[a]s is readily apparent from . . . the facts, there was overwhelming

evidence that [defendant] carried the money away from the bank.”             Id. at 1203;

see also id. at 1201-02 (reciting facts underlying this conclusion, including

eyewitness testimony as well as stains from bank dye pack on defendants’ hands,

on money and towel in his possession, and on back seat of car he used to exit

crime scene). Given that assessment of the relevant evidence, and the lack of any

challenge to it here, any reasonable jurist would conclude as the district court did

that defendant suffered no cognizable prejudice: even if counsel had preserved an

objection to the bank larceny instruction, the same result would have obtained on

appeal under the rubric of harmless error.      See Neder v. United States , 527 U.S. 1,

17, 19 (1999).

       Finally, defendant claims counsel was ineffective for failing to challenge

the sufficiency of the government’s evidence that the bank was FDIC insured at

the time of the crime. The evidence recited by the district court was plainly

sufficient to preclude acquittal on this basis. Defendant appears to be confusing

sufficient evidence with conclusive proof.




                                              -6-
      Defendant’s request for a COA on his ineffective assistance claims relating

to the content of the larceny instruction and the sufficiency of the government’s

proof of FDIC insurance is DENIED. The judgment of the district court is

AFFIRMED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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