Case Information
*1 Before HARTZ , GORSUCH , and PHILLIPS , Circuit Judges.
Marconia Lynn Green seeks to attack collaterally his conviction and sentence for federal drug charges. 28 U.S.C. § 2255. The district court analyzed Mr. Green’s arguments in a detailed 15 page memorandum before ultimately rejecting both them and Mr. Green’s request for a certificate of appealability (COA).
Now before us, Mr. Green renews his request for a COA. To succeed, he
must make a “substantial showing of the denial of a constitutional right.” 28
*2
U.S.C. § 2253(c)(2). And to do that, he must demonstrate “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
,
Mr. Green submits he meets this standard for three separate reasons.
Ultimately, we cannot agree.
First, Mr. Green argues that his trial counsel provided constitutionally
ineffective performance because counsel incorrectly estimated that he (Mr. Green)
would receive a sentence at the low end of the advisory guidelines range. As the
district court explained, however, this court has held that an “erroneous sentence
estimation by defense counsel is not a constitutionally deficient performance
rising to the level of ineffective assistance of counsel.”
United States v. Gordon
,
Second, Mr. Green says his trial counsel was ineffective because counsel
failed to object to the district court’s decision at sentencing to hold him
*3
accountable for drug quantities beyond those expressly mentioned in Mr. Green’s
plea agreement with the government. But as the district court explained, counsel
did not perform deficiently because any objection along these lines would have
been without merit under existing law. The advisory sentencing guidelines
expressly state that “[d]rug quantities associated with illegal conduct for which a
defendant was not convicted are to be accounted for in sentencing, if they are part
of the same conduct for which the defendant was convicted.”
United States v.
Mendez-Zamora
,
Finally, Mr. Green contends his counsel on direct appeal was ineffective because he didn’t argue that Mr. Green’s plea was unknowing and involuntary when it came to the sentence he might receive. While Mr. Green’s counsel did not raise this issue until his reply brief, and therefore waived the issue, it was without merit because (again) the plea colloquy shows that Mr. Green was fully advised of and understood the scope of sentencing possibilities in his case. As the district court explained, appellate counsel didn’t perform deficiently — and Mr. Green could not have been prejudiced — by counsel’s failure to preserve and pursue a meritless argument.
Mr. Green’s request for a COA is denied. His request to proceed in forma pauperis is denied. Mr. Green is reminded that he must pay the filing and docket fees in full to the clerk of the district court. This matter is dismissed.
ENTERED FOR THE COURT Neil M. Gorsuch Circuit Judge
Notes
[*] 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.