U.S. v. Cook, s. 93-5279

Decision Date23 January 1995
Docket Number94-5007 and 94-5041,Nos. 93-5279,s. 93-5279
Citation45 F.3d 388
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lewis Aaron COOK, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

John E. Dowdell of Norman & Wohlgemuth, Tulsa, OK, for defendant-appellant.

James L. Swartz, Asst. U.S. Atty. (Stephen C. Lewis, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Before BALDOCK and LOGAN, Circuit Judges, and BURCIAGA, District Judge. *

BALDOCK, Circuit Judge.

This is Defendant Lewis Aaron Cook's second appeal to this Court following denial of his 28 U.S.C. Sec. 2255 motion. In 1990, Defendant was convicted of drug-related charges in federal court and sentenced to concurrent prison terms of 262 months and 240 months. We affirmed Defendant's conviction and sentence on direct appeal. See United States v. Cook ("Cook I"), 949 F.2d 289 (10th Cir.1991). Thereafter, Defendant filed a Sec. 2255 motion alleging in pertinent part: (1) his attorney encouraged Yvonne Cross, a government witness, to testify against him creating a conflict of interest, 1 and (2) his appellate counsel was ineffective. United States v. Cook ("Cook II"), 997 F.2d 1312, 1315-16 (10th Cir.1992). The district court denied his motion. Id. at 1316. We reversed, noting that Defendant's failure to raise the issues contained in his Sec. 2255 motion on direct appeal "bars him from raising [them] in his Sec. 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the error of which he complains." Id. at 1320. Because Defendant's assertion of ineffective assistance of appellate counsel could establish sufficient cause for his procedural default, we remanded for the district court to consider whether Defendant's counsel had rendered ineffective assistance on direct appeal. 2 Id.

On remand, the district court conducted an evidentiary hearing and determined Defendant had received effective assistance of counsel on direct appeal. The court therefore held that Defendant had failed to establish cause for his procedural default and denied Defendant's motion. 3 On appeal, we exercise jurisdiction under 28 U.S.C. Sec. 1291, and we again reverse. 4

I.

The record reveals the following relevant facts. Defendant, along with co-defendants Yvonne Cross and Linda Kaye Burdine, retained Jeffrey D. Fischer to jointly represent them following their arrest on drug charges. Prior to trial, the government and co-defendant Cross entered into a plea agreement which required Cross to testify in the government's case-in-chief against Cook in exchange for the government's recommendation of leniency at sentencing. Subsequently, the government filed a motion to recuse Fischer from representing Cross in light of the "very real conflict of interest between defendants Cook and Cross." Fischer filed a response acknowledging the conflict of interest. The district court granted the motion and appointed Ernest Bedford as separate counsel for Cross. Fischer continued to represent Defendant.

At trial, on December 20, 1989, the government called Cross to testify. In contravention of her plea agreement, Cross refused to testify against Defendant:

Q. Ms. Cross, are you a defendant in this case with Mr. Lewis Cook and Ms. Linda Burdine?

A. Yeah, I will not testify against Lewis Aaron Cook.

THE COURT: Do you understand the question? Are you stating that you refuse to give testimony?

THE WITNESS: Yes, I do.

Tr.Vol. II at 398. Upon further questioning by the district court, Cross continued to refuse to testify against Defendant. Id. at 402-03.

As a result of Cross' refusal to testify, the district court ordered Fischer, Defendant's attorney, to meet with Cross and apprise her of the consequences of her refusal to testify in accordance with her plea agreement. The following colloquy occurred between the district court and Fischer:

THE COURT: All right. I tell you what I'm going to do. I'm going to take a short recess, and I want Mr. Fischer, Mr. Fischer as an officer of this Court and as counsel experienced in criminal matters, I want you to visit with Ms. Cross. I do understand that there is a conflict situation.

MR. FISCHER: Not only is there a conflict, if Your Honor please, this Court has--

THE COURT: I have--that's right, I've entered an order, that is true.

MR. FISCHER:--recused me for precisely that reason. Now, if it's the Court's pleasure for me to do so and give her general information, I'll be happy to do so.

THE COURT: All I'm doing is trying to insure that ... Yvonne Cross is aware of her situation and her jeopardy at this point. And I will for the limited purpose of your advising her of what can happen, I want you to do that.

MR. FISCHER: Yes, Your Honor.

Id. (emphasis added). After further discussions with the government's attorney, the district court reiterated its prior order:

THE COURT: I would ask that both you [government's attorney] and Mr. Fischer advise her in that regard so that she will be fully advised as to her rights and what she faces if she refuses to testify, because at this point, she is not under jeopardy, but if she continues this refusal then she has serious problems.

Id. at 405.

Despite his misgivings, Fischer attended the meeting with Cross along with her court-appointed attorney, Bedford, and the government prosecutor. At the meeting, Fischer did not communicate with Cross and was present only as an observer to the conversation between Cross, Bedford, and the government prosecutor. After the meeting, Cross returned to the stand and delivered testimony which the government acknowledges "was damaging to [Defendant's] case." Defendant was ultimately convicted.

In his direct appeal, Defendant--through his attorney Fischer--did not raise any conflict of interest issues concerning the court-ordered meeting with Cross. At the Sec. 2255 evidentiary hearing conducted by the district court following our remand in Cook II, Fischer testified that he did not raise the issue on appeal because "it was my perception that there was no legitimate issue that arose out of the meeting with Ms. Cross that was worthy of appellate review based on my perception of the circumstances and the law." Tr. Vol. IV at 171. Additionally, Fischer testified that he did not pursue any legal research concerning the issue. Id. at 175-76. However, Fischer testified that he did not believe the meeting "was a good idea consistent with the exercise of [his] best professional judgment." Tr.Vol. IV at 153. Specifically, Fischer testified that he had a number of concerns about the meeting:

One of them was not offending Judge Ellison, one of them was doing right by my client. One of them was comporting myself in accordance with what I believed was the substance of the canons of ethics and that these were in conflict to some extent, these ambitions were to some extent mutually exclusive, and I had a practical problem of basically trying to serve three masters ... at the same time.

Id. at 156.

Following the completion of the Sec. 2255 hearing, the district court held that counsel's omission of the conflict of interest issue on direct appeal did not constitute ineffective assistance of counsel. Applying the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court found that Defendant had failed to show he had been prejudiced by appellate counsel's alleged error because the record failed to establish that had counsel raised the conflict of interest issue, "the result of the [appeal] would have been different." Finding that Defendant had failed to make this showing, the district court denied Defendant's Sec. 2255 motion as procedurally barred.

In the present appeal, Defendant contends he received ineffective assistance of counsel because his counsel failed to raise a conflict of interest issue on direct appeal. Consequently, Defendant contends he has established cause for his procedural default. In reviewing ineffective assistance of counsel claims, "[w]e must accept the district court's underlying factual findings unless clearly erroneous, but we review de novo whether counsel's performance was legally deficient and whether any deficiencies prejudiced [the Defendant]." United States v. Haddock, 12 F.3d 950, 955 (10th Cir.1993).

II.
A.

"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error. Id. A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Id. at 690, 104 S.Ct. at 2066. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Although Strickland set forth standards for determining the effectiveness of trial counsel, we have applied those same standards in assessing the effectiveness of appellate counsel. See, e.g., United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.1993); United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992).

When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the...

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