Filed: Jul. 19, 2004
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 19 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-3360 (D.C. Nos. 03-CV-3336-MLB DEMARQUES M. MORRIS, & 99-CR-10086-03-MLB) (D. Kan.) 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 that or
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 19 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-3360 (D.C. Nos. 03-CV-3336-MLB DEMARQUES M. MORRIS, & 99-CR-10086-03-MLB) (D. Kan.) 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 that ora..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 19 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-3360
(D.C. Nos. 03-CV-3336-MLB
DEMARQUES M. MORRIS, & 99-CR-10086-03-MLB)
(D. Kan.)
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 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.
*
This order and judgment is not binding precedent, except under the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 DeMarques M. Morris appeals from an order of the district court
denying his motion for habeas relief filed pursuant to 28 U.S.C. § 2255. We
granted Mr. Morris a certificate of appealability on the issue of whether he
received ineffective assistance of counsel due to counsel’s alleged failure to
inform him of the advantages and disadvantages of a proposed plea agreement.
See id. § 2253(c)(1)(B). We affirm the district court’s judgment as to this issue
and deny a certificate of appealability as to Mr. Morris’s remaining issues.
After rejecting a plea agreement offered by the government, Mr. Morris
was convicted by a jury of two Hobbs Acts violations and five violations of
18 U.S.C. § 924(c). On appeal, this court affirmed, except for the five § 924(c)
convictions which we held were multiplicious as each Hobbs Act conviction could
serve as a predicate offense for only one § 924(c) violation. See United States v.
Morris , 247 F.3d 1080, 1084 (10th Cir. 2001). We remanded the action to the
district court with directions to enter a conviction and sentence on “no more than
one § 924(c) count per Hobbs Act conviction.”
Id. at 1090-91.
On remand, the court imposed concurrent sentences of seventy months on
the Hobbs Act violations, to run consecutively to a ten-year sentence on the
conviction for discharging a firearm during a crime of violence, which, in turn,
was to run consecutively to a twenty-five year sentence on the conviction of
brandishing a firearm during a crime of violence. This last sentence was
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increased because it was a second or subsequent § 924(c) conviction. We
dismissed Mr. Morris’s appeal from resentencing on the grounds that he had not
raised any non-frivolous issues for appeal. United States v. Morris , 41 Fed.
Appx. 259, 261-62 (10th Cir. May 15, 2002).
Mr. Morris, proceeding pro se, then filed this motion seeking habeas relief.
In his motion, he alleged that counsel was ineffective because counsel had failed
to advise him of the advantages and disadvantages of the plea agreement offered
by the government, failed to investigate the facts, and failed to impeach the
government’s key witness during the motion to suppress. He also contended that
perjured testimony was presented to the grand jury, that his sentencing violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the p rosecution
knowingly presented false testimony during the suppression hearing.
The district court denied relief. Mr. Morris appeals rearguing his original
contentions. He also argues that there was no probable cause to support his arrest
and the prosecutor was guilty of misconduct. As noted, we granted a certificate
of appealability as to whether counsel was ineffective because he failed to
properly advise Mr. Morris regarding the proposed plea agreement.
A district court may grant relief under § 2255 only 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
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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 the district court’s legal rulings on a § 2255 motion de novo and its
findings of fact for clear error.” United States v. Kennedy, 225 F.3d 1187, 1193
(10th Cir. 2000) (quotation omitted). “A claim of ineffective assistance of
counsel presents a mixed question of law and fact which we review de novo.”
Id.
at 1197 (quotation omitted).
To prevail on an ineffective assistance of counsel claim in the plea context,
the movant must show that his counsel’s performance was deficient and that
“there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985) (citing Strickland v. Washington ,
466 U.S. 668 (1984)) .
This test also applies in cases such as here, where the defendant alleges that
ineffective assistance caused him to reject a plea agreement and proceed to trial.
See Magana v. Hofbauer,
263 F.3d 542, 547 (6th Cir. 2001) (requiring that
movant show deficient performance and that, but for counsel’s advice, there was a
reasonable probability he would have pled guilty); United States v. Gordon,
156 F.3d 376, 379-80 (2d Cir. 1998) (per curiam) (recognizing ineffective
assistance claim where counsel’s misadvice regarding potential sentencing
exposure caused defendant to reject plea negotiations).
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[I]n the ordinary case criminal defense attorneys have a duty to
inform their clients of plea agreements proffered by the prosecution,
. . . failure to do so constitutes ineffective assistance of counsel
under the sixth and fourteenth amendments. Apart from merely being
informed about the proffered agreement, . . . a defendant must be
involved in the decision-making process regarding the agreement’s
ultimate acceptance or rejection.
United States v. Golden , 102 F.3d 936, 943 (7th Cir. 1996) (quotation omitted).
Mr. Morris does not, nor can he, argue that he was not informed of the
proposed plea agreement. Instead, Mr. Morris contends that counsel failed to
discuss the merits of the proposed plea with him, which he states included a
maximum sentence of nineteen years. He concludes that his decision was not
knowing and intelligent because he would not have gone to trial had he known the
sentence range he faced if convicted by a jury.
A review of the proposed plea agreement belies Mr. Morris’s contention.
The proposed plea states that the government had “made no promises or
representations . . . regarding what sentence might be imposed or which
sentencing guideline level will be appropriate.” R. tab. 201, Attach. B at 2.
Mr. Morris’s subjective and self-serving statements are insufficient to show a
reasonable probability that, but for alleged counsel’s errors, he would have pled
guilty.
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For the foregoing reasons, we AFFIRM the district court’s denial of habeas
relief on the issue on which we granted a certificate of appealability. We DENY
a certificate of appealability on Mr. Morris’s remaining issues. The mandate shall
issue forthwith.
Entered for the Court
John L. Kane
Senior District Judge
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