United States v. Cook

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA COOK, Defendant-Appellant.

No. 23-2184

United States Court of Appeals, Tenth Circuit

September 5, 2024

(D.C. Nos. 1:20-CV-00369-WJ-LF &1:15-CR-03224-WJ-LF-1) (D N.M.)

Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY ^[*]

Timothy M. Tymkovich, Circuit Judge.

Sandra Cook seeks a certificate of appealability (COA) to appeal the district court's denial of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. We deny a COA and dismiss this matter.

BACKGROUND

The factual and procedural background of Ms. Cook's two convictions for possessing with intent to distribute methamphetamine is described in our decision affirming the convictions. See United States v. Cook, 761 Fed.Appx. 840, 841-45 (10th Cir. 2019). We do not repeat that background information here. Ms. Cook did not challenge her sentence on direct appeal, so Cook does not include background information regarding the district court's sentencing determination. Because several of her § 2255 claims involve her sentence, we provide the following additional background information to provide context for our analysis of those claims.

Ms Cook was sentenced in 2017, so the district court calculated her guideline range using the 2016 Guidelines Manual. See U.S. Sentencing Guidelines Manual (U.S. Sent'g Comm'n 2016) (hereinafter the 2016 Guidelines). The court grouped her two counts of conviction for purposes of determining her offense level, see id. § 3D1.2(d), and applied several sentencing enhancements, including a two-point enhancement for possession of a firearm as part of the criminal activity and a three-point enhancement for her role as a manager or supervisor of that activity, see id. §§ 2D1.1(b)(1) (firearm), 3B1.1(b) (aggravating role). The court did not articulate any facts or reasons supporting its conclusion that she was a manager or supervisor for purposes of the aggravating-role enhancement. The enhancements resulted in a guideline range of life imprisonment. Finding that a life sentence would be "a bit too harsh," R., vol. II at 797, the court granted a downward variance of two offense levels, which, when combined with her criminal-history category, resulted in a guideline range of 324 to 405 months. The court sentenced Ms. Cook to 324 months on each count, with the sentences to run concurrently-the shortest possible within-guidelines sentence.

In her § 2255 motion, Ms. Cook claimed trial and appellate counsel were both ineffective. Specifically, she claimed trial counsel was ineffective for failing to: (1) highlight alleged evidentiary inconsistencies regarding the discovery of her driver's license and Social Security card in the same room where large quantities of methamphetamine were found, and move to suppress evidence and testimony based on these inconsistencies; (2) independently test the methamphetamine admitted into evidence and challenge the validity of the government's tests; (3) object to the prosecutor's statement during closing argument that there was additional evidence against her that was not presented at trial; (4) argue that the district court should have determined the offense level for each count separately instead of grouping them; (5) seek a downward variance because the disparity in the guideline range for mixtures versus pure methamphetamine is not supported by empirical data; and (6) object to testimony at sentencing about her connection to the Sinaloa Cartel. Ms. Cook claimed appellate counsel was ineffective for failing to argue that (1) the evidence was insufficient to support the aggravating-role enhancement, and (2) the firearm enhancement was based on an improper application of the presumption that the firearm was reasonably foreseeable.

The district court rejected all of these claims on the merits, concluding, depending on the claim, that she failed to establish either that counsel's performance was deficient or that counsel's errors were prejudicial, or both. Ms. Cook raised other claims in her § 2255 motion that the district court declined to address, some because they were vague and unsupported by specific factual allegations, and others because they were raised for the first time in her reply brief. She now seeks to appeal the district court's order.

COA STANDARD AND SCOPE OF COA REQUEST

Before she may appeal, Ms. Cook must obtain a COA. See United States v. Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B).

To do so, she must make "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), such that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Ms. Cook represents herself, so we construe her filings liberally, but we do not act as her advocate. See Garrett v. Selby Connor Maddux &Janer, 425 F.3d 836, 840 (10th Cir. 2005). Even liberally construed, we view the combined COA application and supporting brief she filed in this court (COA Application) as seeking a COA only as to the district court's denial of relief on claim (1) regarding trial counsel and both claims regarding appellate counsel.

We take this view because in the "Statements of Issues and Arguments" section of her COA Application, Ms. Cook adequately addresses only the merits of those claims. COA Appl. at 6. Although she also asserts error in the district court's denial of or refusal to address other claims, including claims regarding calculation of her guideline range and her claim of cumulative ineffective assistance of counsel, she does so only in summary fashion. See id. at 8, 10. Her listing of issues and her unsupported factual narrative are not a "substitute for legal argument," Nixon v. City &Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). We thus consider only the claims she adequately briefed. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) ("[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief."); see also Meek v. Martin, 74 F.4th 1223, 1267-68 (10th Cir. 2023) ("We are under no obligation to fill in the blanks of a litigant's inadequate brief, and we discern no reason to do so here." (internal quotation marks omitted)).

DISCUSSION

I. Legal Standards

"[T]he right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted). But "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Thus to establish that counsel was ineffective, Cook must show both "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687. Because she must demonstrate both prongs, her failure to prove either one is dispositive. See id. at 700.

To satisfy the deficient performance prong, Ms. Cook "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To satisfy the prejudice prong, she "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. When, as here, the basis for the claim is counsel's failure to raise an issue, we look to the merits of the omitted issue to determine both whether counsel's omission was unreasonable and whether it was prejudicial. Cargle v. Mullin, 317 F.3d 1196, 1202, 1205 (10th Cir. 2003). If the omitted issue is without merit, counsel's failure to raise it is not prejudicial, and the ineffective-assistance claim fails. United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006).

"We review the district court's legal rulings on a § 2255 motion de novo and its findings of fact for clear error." Id. at 796. A finding is clearly erroneous if it is not supported by the record or if, after reviewing the evidence, we are "left with a definite and firm conviction that a mistake has been made." United States v. Pulliam, 748 F.3d 967, 970 (10th Cir. 2014) (internal quotation marks omitted). Under that standard, we will uphold any finding that is plausible in light of the evidence as a whole. United States v. Nkome, 987 F.3d 1262, 1277 (10th Cir. 2021). An ineffective assistance of counsel claim "presents a mixed question of fact and law, which we review de novo." Orange, 447 F.3d at 796.

II. Application

A. Claim Regarding Trial Counsel

In her § 2255 motion, Ms. Cook claimed trial counsel was ineffective for not calling the jury's attention to alleged evidentiary inconsistencies regarding the discovery of her driver's license and Social Security card in the room where large quantities of methamphetamine were found and did not move to suppress evidence and testimony based on these inconsistencies. She claimed the evidence was flawed because the driver's license and Social Security card themselves were not seized; investigators did not take other pictures she believed were necessary; there were inconsistencies, questions, and technological issues associated with the discovery and photographing of the license and Social Security...