F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 9 2000
                                    TENTH CIRCUIT
                               __________________________                PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Apellee,

 v.                                                        No. 99-7154
                                                            (E.D. Okla.)
 GARY WOODLEE,                                       (D.Ct. No. 99-CV-144-S)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      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.



      Appellant Gary Woodlee appeals the district court’s decision denying his


      *
          This order and judgment is not binding precedent except under the doctrines of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.
motion filed under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence.

We deny Mr. Woodlee’s request for a certificate of appealability and dismiss his

appeal.



      Mr. Woodlee received three convictions for violent interference with three

individuals’ federally protected rights to enjoyment of a public facility under 18

U.S.C. § 245(b)(2)(F). The facts under which Mr. Woodlee received his

convictions are set out in our decision affirming his direct appeal. See United

States v. Woodlee, 

, 1403-04 (10th Cir.), cert. denied, 

(1998). In short, Mr. Woodlee, his brother and other white men made

innumerable and extremely venomous, racial remarks directed at three black

males – David Carter, Tim Walker and Brock Lockhart – who entered a bar in

Oklahoma. 

At one point, while looking at Mr. Carter, Gary Woodlee

stated he “was going to shoot the s--- out of that black son-of-a-b----.” 

Woodlee handed Gary Woodlee a pistol, at which time the bartender heard

Gary Woodlee say he would use the gun to shoot the three black men. 

his brother and white men then followed the black men out of the bar

into the parking lot where they continued taunting and threatening the three men.

After the three men got into Mr. Carter’s car and began driving away, Mr.

Lockhart shouted out the window, “You guys are a bunch of a------s.” 

Woodlee and his brother invited another man, Robert Kinslow, to join them in

pursuing the three men. 

into the passenger seat of the truck

driven by Gary Woodlee, Mr. Kinslow retrieved a rifle from his own car. 

pursuit, Mr. Kinslow fired shots through the car’s rear window,

injuring Mr. Carter. 

1409.



      On direct appeal, Gary Woodlee raised several issues, which we rejected in

affirming his conviction. 

Unsuccessful in his direct appeal, Mr.

Woodlee filed his 28 U.S. § 2255 motion raising three claims of ineffective

assistance of counsel. After reviewing Mr. Woodlee’s ineffective assistance of

counsel claims, the district court determined they lacked merit because Mr.

Woodlee failed to show his counsel acted ineffectively or that his performance, if

deficient, prejudiced Mr. Woodlee’s defense. Accordingly, the district court

denied Mr. Woodlee’s § 2255 motion.



      On appeal, Mr. Woodlee raises two of the same ineffective assistance of

counsel claims addressed by the district court. Mr. Woodlee’s first claim centers

on the foreseeability of “bodily injury” to Mr. Carter. Mr. Woodlee claims his

counsel acted ineffectively in failing to:

      1) object to a jury instruction which did not inform the jury that “bodily
      injury” must be a “forseeable result” of his alleged intimidation or

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      interference under 18 U.S.C. § 245(b)(2)(F);

      2) request a “lesser included offense” instruction allowing the jury the
      option of finding him guilty of a misdemeanor offense of § 245(b)(2)(F)
      because the bodily injury of Mr. Carter was “not forseeable”; and

      3) investigate case law, other legal authorities, and the Federal Rules of
      Criminal Procedure, including Rule 31(c), to support raising these issues.


      In his second claim of ineffective assistance of counsel, Mr. Woodlee

claims his counsel acted ineffectively by: 1) failing to move for a downward

departure of his sentence under United States Sentencing Guideline § 5K2.10 due

to Mr. Lockhart’s alleged “victim misconduct,” and 2) failing to investigate the

law relevant to a U.S.S.G. § 5K2.10 departure. In support of this claim, Mr.

Woodlee contends Mr. Lockhart’s “victim misconduct” arose from his alleged use

of “fighting words” and his act of throwing gravel at Mr. Woodlee’s friend’s

vehicle in the parking lot.



      Mr. Woodlee’s ineffective assistance of counsel claim “presents a mixed

question of law and fact which we review de novo.” Hickman v. Spears, 

, 1273 (10th Cir. 1998) (quotation marks and citation omitted). To prevail

on this claim, Mr. Woodlee must show: “(1) that his counsel’s performance fell

below an objective standard of reasonableness and (2) that the deficient

performance was prejudicial to his defense.” 

v. Washington,


                                        -4-


, 688, 694 (1984)). Under this two-prong test, we need not

separately determine the effectiveness of Mr. Woodlee’s counsel if the alleged

deficiency would not have prejudiced Mr. Woodlee. See Brewer v. Reynolds, 

, 1523 & n.7 (10th Cir. 1995), cert. denied, 

. To establish

prejudice, Mr. Woodlee must show “‘there is a reasonable probability that, but for

counsel’s [allegedly] unprofessional errors, the result of the proceeding would

have been different.’” 

(quoting 

).



      With these standards in mind, we conclude Mr. Woodlee’s first claim

regarding the foreseeablilty of Mr. Carter’s bodily injuries is foreclosed by our

decision in his direct appeal. In support of his direct appeal, Mr. Woodlee argued

he could only receive a misdemeanor conviction under § 245(b)(2)(F), and not a

felony conviction which requires “bodily injury.” 

. In

addressing this issue, we held “the bodily injury element of the felony crime is

satisfied if injury was a foreseeable result of the Woodlees’ intimidation or

interference.” 

We then concluded the trial court correctly

determined Mr. Woodlee should have foreseen the resulting injury to Mr. Carter

given he and others continuously taunted the three black men, and later engaged

in a high-speed car chase while intoxicated and in possession of a pistol which


                                         -5-
Mr. Woodlee said he would use. 

concluded a rational jury could

have found the government established the foreseeability of bodily injury beyond

a reasonable doubt. 

decision, we also held Mr. Carter suffered a

serious bodily injury based on a permanent eye injury resulting from the shooting.

      In raising the issues of foreseeability and misdemeanor offense under the

guise of an ineffective assistance of counsel claim, Mr. Woodlee is simply

attempting to rehash underlying issues previously addressed by this Court. Given

we determined the evidence clearly supported a felony conviction for bodily

injury, we hold Mr. Woodlee’s counsel did not act ineffectively, and Mr. Woodlee

was not prejudiced, because his counsel failed to request a “lesser included

offense” instruction on a misdemeanor offense, which does not involve the

element of bodily injury.



      In addition, having already determined the jury could find bodily injury was

a foreseeable consequence of Mr. Woodlee’s and his friends’ actions, we hold Mr.

Woodlee has not demonstrated prejudice because his counsel failed to object to a

jury instruction stating “bodily injury” must be a “foreseeable result” of Mr.

Woodlee’s alleged intimidation or interference. In other words, Mr. Woodlee has


                                         -6-
not shown that, but for this alleged error, the result of the proceeding would have

been different. See 

.



      We also reject Mr. Woodlee’s other ineffective assistance of counsel claim

which focuses on his counsel’s failure to request a downward departure for

“victim misconduct” under U.S.S.G. § 5K2.10. Mr. Woodlee’s claim Mr.

Lockhart committed “victim misconduct” by using “fighting words” 1 and

throwing gravel is not supported by the record before us. Rather, on direct

appeal, we reviewed the record and determined “[t]hroughout the entire evening,

Mr. Carter, Mr. Walker and Mr. Lockhart never approached the defendants or

responded to the racial taunting.” 

. The only response

of record, recited in our previous opinion, came in the parking lot when Mr.

Lockhart shouted out that Mr. Woodlee and his friends were “a bunch of a------s.”

Woodlee relies on portions of the trial transcript to support

what he perceives as Mr. Lockhart’s other acts of “victim misconduct,” he failed

to present the transcript for our review. As a result, we cannot confirm the

content, context or timing of Mr. Lockhart’s other alleged comments and actions.



      1
           Besides calling Mr. Woodlee and his friends “a------s,” Mr. Woodlee also claims
Mr. Lockhart told them to “just p--- on themselves” and shouted “Come on, mother
f------, if you want me, here I am.”


                                           -7-
Mr. Woodlee, as the appellant, “is responsible for insuring that all materials on

which he seeks to rely are part of the record on appeal.” United States v.

Vasquez, 

, 495 (10th Cir. 1993). “In the absence of a transcript or a

statement of the parties in lieu of a transcript,” this court will not generally

review the issue. 

if we exercised our discretion and reviewed the assigned

error, it appears from the limited record before us and our prior decision that Mr.

Woodlee and his friends instigated the entire incident and made innumerable

racially based accusations, using much stronger and fouler language than Mr.

Lockhart allegedly used, and twice verbally threatened to shoot the three black

men. 

-04. Thus, even if we took Mr. Woodlee’s

contentions as to what Mr. Lockhart stated to be true, we cannot say Mr.

Lockhart’s alleged “wrongful conduct contributed significantly to provoking the

offense behavior” of Mr. Woodlee, as required by U.S.S.G. § 5K2.10 for a

downward departure. 2 In other words, it is clear Mr. Lockhart’s actions did not


       2
          In his brief, Mr. Woodlee also generally contends the three black men brought
Mr. Carter’s pistol into the bar after Mr. Woodlee and his friends refused to give up their
pool table to them. In our prior decision, we determined none of thedefendants, including
Mr. Woodlee, knew Mr. Carter possessed a pistol. 

. In
addition, Mr. Carter testified he never removed the pistol from his car. 

white men were unaware of the pistol, we cannot conclude the fact Mr. Carter possessed
the pistol in any way contributed to Mr. Lockhart’s alleged “victim conduct” or otherwise

                                            -8-
significantly provoke the incident that led to the racially based, high-speed and

dangerous pursuit and shooting of another human being.



      Finally, in order to obtain a certificate of appealability, Mr. Woodlee must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). A review of the record establishes he fails to make the requisite

showing. For this reason, Mr. Woodlee’s request for a certificate of appealability

is denied, and his appeal is DISMISSED.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




provoked Mr. Woodlee’s offensive conduct.


                                         -9-