ORDER AND JUDGMENT(*)
Before EBEL, BALDOCK, and
LUCERO, Circuit Judges.
Pro se petitioner Johnnie V. Parker, a federal prisoner, seeks a certificate
of appealability ("COA") from this court in order to appeal the district court's
order denying the relief sought in his motion filed under 28 U.S.C. § 2255. We
deny a COA and dismiss the appeal.
Parker pled guilty to armed bank robbery, possession of a short-barreled
shotgun in furtherance of a crime of violence, and aiding and abetting. He was
sentenced to 340 months' imprisonment with five years' supervised release and
$10,300.00 restitution. Parker did not directly appeal his conviction or sentence.
Parker filed this motion in district court seeking relief under § 2255,
alleging he received ineffective assistance of counsel because counsel failed to
investigate his history of mental disorders or to present mitigating evidence
regarding his mental illness at sentencing, as a result of which he was denied a
downward departure. The district court denied relief, concluding that Parker had
stipulated to the sentencing range, the court was aware of Parker's mental health
history from the presentence report and its power to depart downward on this
basis, and Parker was permitted allocution at sentencing. Parker seeks a COA to
appeal the district court's decision.
We may issue a COA only if Parker "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He can make this
showing by establishing 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation
omitted). We will grant relief if we determine 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. Because Parker filed his
application for a COA pro se, we construe his petition liberally. Haines v.
Kerner, 404 U.S. 519, 52021 (1972) (per curiam).
Although the district court did not address Parker's ineffective assistance
of counsel claim under the correct legal framework, we nevertheless conclude
that Parker cannot make the requisite showing to warrant issuance of a COA. To
prevail on an ineffective assistance of counsel claim, Parker must establish both
that counsel's performance objectively fell below the standard of reasonableness
and that the deficient performance was prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). "An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment." Id. at 691.
Parker contends counsel was deficient in failing to investigate and verify
his mental illness history as presented in the presentence report. He cannot show,
however, that even if counsel had presented verified evidence of Parker's mental
illness at sentencing, the district court would have chosen to exercise its
discretion to depart downwards. Cf. United States v. Kissick, 69 F.3d 1048,
1056 (10th Cir. 1995) (holding prejudice prong met when counsel's deficient
performance caused defendant to improperly be classified as a career offender, as
a result of which he received "a significantly greater sentence"). Parker has not
shown that there is a "reasonable probability" that the court would have imposed
a shorter sentence had counsel performed as he now desires, particularly because
information relating to his mental health history was in the presentence report,
which was before the district court at the time of sentencing. Strickland, 466
U.S. at 694.
Hence, Parker has failed to make a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). Reasonable jurists could not
debate whether his § 2255 "petition should have been resolved in a different
manner" or whether "the issues presented were adequate to deserve
encouragement to proceed further." Slack, 529 U.S. at 484 (quotation omitted).
Accordingly, we DENY a COA and DISMISS this appeal.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*. The case is unanimously ordered
submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.
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UNITED
STATES COURT OF APPEALS