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No. 06-6335
(D.C. Nos. CIV-05-877-T and
CR-03-51-T)
(W .D. Okla.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
performance. She first claims that trial counsel was ineffective for failing to
object to the district courts enhancement of her sentence with facts found only by
a preponderance of the evidence. She argues that this judicial fact-finding is
illegal in the wake of Booker. But her sentencing occurred on October 15, 2003,
and Booker was not issued until January 12, 2005. Booker is not retroactive on
collateral review, see United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir.
2005), and trial counsel is not ineffective for failing to anticipate future
developments in the law, see Harms, 371 F.3d at 1212 (The Sixth Amendment
does not require counsel for a criminal defendant to be clairvoyant.).
She also claims that the advice she received concerning her appeal was
coercive because appellate counsel advised her that were she to appeal she
would probably receive a higher sentence on remand, and that given that advice
she decided to dismiss her appeal. Despite M s. Penningtons contrary
characterization, given the possibility of a longer sentence which plainly existed,
the advice given was not coercive. See Hannon v. M aschner, 845 F.2d 1553,
1556 (10th Cir. 1988) (noting that counsel must explain the pros and cons of an
appeal in order for a defendant to make a voluntary and intelligent choice not to
do so); Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) (explaining that
for counsels advice to be constitutionally ineffective it must be completely
unreasonable, not merely wrong); cf. Holcomb v. M urphy, 701 F.2d 1307, 1311
(10th Cir. 1983) ([T]he principal actor in the decision whether to appeal is the
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criminal defendant.).
Additionally, [w]hen a defendant alleges his appellate counsel rendered
ineffective assistance by failing to raise an issue on appeal, we examine the
merits of the omitted issue. United States v. Cook, 45 F.3d 388, 392 (10th Cir.
1995). Booker did not eliminate a district courts fact-finding role (by a
preponderance of the evidence) in sentencing. United States v. M agallanez, 408
F.3d 672, 684 (10th Cir. 2005). Also, the sentencing court in this case merely
exercised its discretion to impose a sentence within the guideline range, which did
not implicate the Sixth Amendment pre-Booker, and does not implicate it postBooker. See Booker, 543 U.S. at 233 (W e have never doubted the authority of a
judge to exercise broad discretion in imposing a sentence w ithin a statutory
range.). Simply put, M s. Pennington would not have satisfied plain error review
on appeal. See United States v. Gonzales-Huerta, 403 F.3d 727, 736-39 (10th Cir.
2005) (en banc). In conclusion, the district courts resolution of the ineffective
assistance of counsel claim is not reasonably debatable.
W e DENY a COA, DENY leave to proceed in forma pauperis, and
DISM ISS the appeal.
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