      Case: 08-4171    Document: 01017633924
                                                                        FILED
                                                 Date Filed: United States Court 1 Appeals
                                                             02/27/2009 Page: of
                                                                     Tenth Circuit

                                                                February 27, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Respondent-Appellee,                      No. 08-4171
 v.                                                      (D. of Utah)
 ANTHONY DELLIS SPENCER,                        (D.C. Nos. 2:07-CV-955-K and
                                                    2:03-CR-626-DAK-1)
               Petitioner-Appellant.


             ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges. **


        Anthony Spencer, 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. See 28 U.S.C. § 2253(c)(1). We

take jurisdiction under 28 U.S.C. § 1291, deny Spencer’s request for a COA, and

dismiss the appeal.




        *
         This order is not binding precedent except under the doctrines of law of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.
        **
         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.
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                                  I. Background

      Spencer pleaded guilty to conspiring to distribute methamphetamine in

violation of 21 U.S.C. § 846. See United States v. Spencer, 192 F. App’x. 718,

719 (10th Cir. 2006). His conviction stemmed from selling four ounces (78.6

grams) of methamphetamine to an undercover officer. Id.

      As the district court explained, the government asserted police reports

indicated that Spencer had called a parolee, James Hill, and offered to sell him

drugs. Unbeknownst to Spencer, Hill was a government informant. Hill notified

authorities, who sent an undercover officer to accompany Hill to the transaction.

At the sale, Spencer ordered associates to retrieve the drugs. When the drugs

were presented, Spencer was arrested. Spencer stipulated to these facts in his

Statement in Advance of Plea.

      After the denial of his direct appeal related to sentencing errors, Spencer

brought this collateral attack to his sentence, asserting: (1) his counsel was

ineffective because counsel improperly advised him regarding whether to plead

guilty to the substantive offense of possession of a controlled substance; (2) the

court erred in not dismissing the indictment based on outrageous government

misconduct; (3) the government improperly withheld Brady 1 evidence favorable to

Spencer because that evidence demonstrated entrapment; and (4) his counsel

provided ineffective assistance by failing to properly investigate the case and by

      1
          Brady v. Maryland, 373 U.S. 83 (1963).

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advising Spencer to plead guilty. The district court denied Spencer’s petition and

also denied him a COA. 2

                                   II. Discussion

      Unless a petitioner first obtains a COA, no appeal may be taken from a

final order disposing of a § 2255 petition. § 2253(c)(1)(B). This court may issue

a COA only if the petitioner has made “a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). A petitioner satisfies this standard by

showing “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations omitted). Our role is to

conduct an “overview of the claims in the habeas petition and a general

assessment of their merits.” Id.

      Here, Spencer has not made a substantial showing of the denial of a

constitutional right. We thus decline to issue a COA.

      2
         After the government responded to Spencer’s pleading in district court,
Spencer moved for sixty days to prepare a reply. The district court did not
address this motion in dismissing the case, and thus implicitly rejected it.
Spencer claims error, but has not shown how this deprived him of the ability to
make a substantial showing of the denial of a constitutional right. See United
States v. Hemsely, 287 F. App’x 649, 650 (10th Cir. 2008) (“Although Mr.
Hemsley also argues that he should receive a COA based upon the government’s
failure to serve him its response to his petition and the district court’s failure to
fix a time for him to reply, Mr. Hemsley has not explained how these events
deprived him of the ability to make a substantial showing of the denial of a
constitutional right.”).

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      A.     Ineffective Assistance of Counsel

      Ineffective assistance claims are based on the Sixth Amendment right to

counsel and are governed by the two-part test of Strickland v. Washington, 466

U.S. 668 (1984). Under Strickland, a plaintiff must show that his attorney’s

performance “fell below an objective standard of reasonableness; and that the

unreasonably deficient performance resulted in prejudice.” Lucero v. Kerby, 133

F.3d 1299, 1323 (10th Cir. 1998) (quoting Strickland, 466 U.S. at 688). The

petitioner has the burden to demonstrate that his attorney’s performance was

unreasonable under prevailing professional norms. Kimmelman v. Morrison, 477

U.S. 365, 384 (1986). He can establish prejudice by showing “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694.

      Spencer’s first and fourth grounds for appeal repeat the allegation that his

attorney ought to have advised him to seek an entrapment defense rather than to

plead guilty. An entrapment defense requires a showing of “government

inducement of the crime, and a lack of predisposition on the part of the defendant

to engage in the criminal conduct.” Mathews v. United States, 485 U.S. 58, 63

(1988). Spencer cannot establish government inducement. According to police

reports, it was Spencer who initiated the drug transaction by calling Hill.

Additionally, Spencer admitted in his statement in advance of his plea that he




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called Hill, and he does not dispute this, other than by broadly arguing without

support that the government arranged the crime.

        Moreover, Spencer cannot demonstrate a lack of predisposition.

Predisposition is the “defendant’s inclination to engage in the illegal activity for

which he has been charged.” United States v. Ford, 550 F.3d 975, 984 (10th Cir.

2008) (citing United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986)).

“Predisposition to commit a criminal act may be shown by evidence of similar

prior illegal acts or it may be inferred from defendant’s desire for profit, his

eagerness to participate in the transaction, his ready response to the government’s

inducement offer, or his demonstrated knowledge or experience in the criminal

activity.” United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005)

(internal quotation marks and citation omitted). Spencer had been arrested for

drug crimes on more than one occasion. Thus, sufficient evidence exists to

establish that Spencer was predisposed to engage in such criminal conduct. See

id.

        Because the facts do not support an entrapment defense, Spencer cannot

demonstrate that his attorney’s performance fell below an objective standard of

reasonableness and that the unreasonably deficient performance resulted in

prejudice. See Strickland, 466 U.S. at 688; see also Slusher v. Furlong, 29 F.

App’x 490, 494–95 (10th Cir. 2002) (finding that counsel’s failure to investigate

an entrapment defense did not prejudice defendant so as to establish an

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ineffective assistance claim, when evidence that counsel failed to uncover would

not have supported a viable entrapment defense and thus would not have

persuaded defendant not to enter a guilty plea). Furthermore, counsel’s advocacy

in the sentencing phase was extensive and competent. In fact, had Spencer not

pleaded guilty, he would likely have lost three points for acceptance of

responsibility in sentencing.

      Counsel’s performance in this case therefore raises no Sixth Amendment

problem. 3

      B.     Government Misconduct

      Next, Spencer argues the government engaged in misconduct by creating

and directing a criminal enterprise that led to his arrest, asserting, in essence, a

variation of his entrapment argument. As explained above, though, his

entrapment theory is without merit. The government asserted that police reports

demonstrate it was Spencer who initiated the drug sale, Spencer who arranged the

place and price of the transaction, and Spencer who directed the transaction itself.

Spencer’s statement in advance of his plea supports this recitation of the facts.




      3
         Spencer argues that, viewed liberally, his filings raised a claim
concerning the validity of his plea. He did not raise the claim in district court,
and, in any event, we find no deficiency in counsel’s performance which would
undermine the voluntariness of his guilty plea. As set forth above, Spencer
stipulated to the facts underlying his guilty plea and received a sentencing benefit
by accepting responsibility.

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No evidence in the record demonstrates government misconduct, and Spencer

does not assert any new allegations of improper conduct in his appeal.

      Therefore, we find no grounds for overturning Spencer’s sentence on the

basis of government misconduct.

      C.     Disclosure of Evidence

      We also reject Spencer’s final argument that the government improperly

withheld evidence. Brady requires the disclosure to a defendant of any evidence

“material either to guilt or to punishment.” 373 U.S. at 87. The government

asserts that it produced all police reports and information in its possession in this

case, and Spencer does not point to any specific exculpatory evidence that would

assist him in demonstrating an entrapment defense. Without any indication of the

existence of exculpatory evidence, we reject Spencer’s claim of improper

withholding of evidence.

                                  III. Conclusion

      We conclude that reasonable jurists could not debate the resolution of the

constitutional claims presented. Accordingly, we DENY Spencer’s request for a

COA and DISMISS his appeal. We DENY Spencer’s request to proceed in forma

pauperis.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge


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