United States of America, Plaintiff-appellee, v. Raymond Ray Spencer, Defendant-appellant, 48 F.3d 1233 (10th Cir. 1995)

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Raymond Ray Spencer appeals the district court's denial of his motion to vacate, set aside or correct his sentence, brought under 28 U.S.C. 2255. Because Mr. Spencer has not demonstrated that his counsel was ineffective, and because his remaining claims are procedurally barred, we affirm.

On September 20, 1990, the First National Bank of Southeast Denver was robbed. The bank teller placed an exploding dye packet in the stolen money. A witness saw the robber run by as the dye packet exploded, and, a moment later, she saw a car exit rapidly from the direction in which the robber ran. She saw the car stop and saw a woman, who looked like she couldn't breathe, get out and wave her arms, as colored fumes came out of the car. When the woman returned to the car and drove off, the witness memorized the car's license number and description.

Shortly thereafter, a car matching the witness' description and license number was located at a nearby parking garage, with the engine still warm. Inside the car were clothes matching those worn by the robber, and Mr. Spencer's identification card and beeper were found in the pants' pocket. The exploded dye packet and money stained with dye were located under the front seat, and Mr. Spencer's calendar notebook, containing personal papers, was found on the front seat. The vehicle was registered to Mr. Spencer's wife.

Mr. Spencer's aunt testified that, several days later, Mr. Spencer told her that he had robbed a bank and left some identifying papers and his license in the car. She also testified that he told her that the dye packet had exploded in his face shortly after he ran out of the bank. The bank teller positively identified Mr. Spencer as the robber.

Mr. Spencer was convicted of bank robbery, and received a fifty-one month sentence. He appealed his conviction, arguing that the teller's in-court identification should have been suppressed, that the evidence was insufficient to support his conviction, and that the district court erred in refusing the jury's request to review certain testimony. His conviction was affirmed in United States v. Spencer, No. 91-1098, 1992 WL 43477 (10th Cir. Mar. 3, 1992) (unpublished disposition), cert. denied, 113 S. Ct. 816 (1992).

Mr. Spencer filed his 2255 motion to vacate, set aside or correct his sentence in the United States District Court for the District of Colorado. He challenged his conviction on three grounds: (1) that his statutory and Sixth Amendment rights were violated by the exclusion of African-Americans from the jury venire; (2) that his Sixth Amendment right to effective assistance of counsel was violated by his attorney's decision not to challenge the racial composition of the jury and by her failure to interview and call a witness; and (3) that his right to due process was violated by the knowing use of perjured testimony.

The district court denied the motion, holding that Mr. Spencer had waived any challenge to the jury under the Federal Jury Selection and Service Act; that he failed to demonstrate the systematic exclusion of African-Americans from the jury selection process; that his counsel's decisions were tactical and, in any event, did not prejudice Mr. Spencer; and that Mr. Spencer was procedurally barred from raising the due process claim because he had not raised it on direct appeal. This appeal followed.

When reviewing the district court's denial of habeas relief, we review the court's legal conclusions de novo and its factual findings for clear error. Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir. 1991). A claim of ineffective assistance of counsel is a mixed question of law and fact which we review de novo. United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir. 1992).

" [Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (citations omitted). A defendant's failure to raise an issue on direct appeal bars him from raising the issue in a 2255 motion, " 'unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.' " Id. (quoting United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993)) (further citations omitted). If the government raises the defense of procedural bar, a court must hold the claim barred unless the defendant shows cause and prejudice or a resulting miscarriage of justice. Id.

Here, the government argued to the district court that both Mr. Spencer's challenge to the racial composition of the jury and his claim that the prosecution used perjured testimony were barred by his failure to raise them on direct appeal. R. I, doc. 6 at 2-3. The district court held the due process claim regarding Ms. Larson's testimony to be barred, but decided the jury composition question on its merits. We affirm the district court's preclusion of Mr. Spencer's due process claim on the ground that he failed to demonstrate cause and prejudice after being given an opportunity to do so.

Although we agree with the district court's conclusion that Mr. Spencer failed to demonstrate that African-Americans were systematically excluded from the jury selection process, we hold that this issue should have been resolved on the grounds of procedural bar. See, e.g., Watson v. New Mexico, No. 93-2283, 1995 WL 18399, at * 2 (10th Cir. Jan. 18, 1995) (holding that when government raises claim of procedural default, issue must be decided before addressing merits); Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993) (" [R]espondent raises the issue of procedural default, which we must resolve before considering the merits.").

The ineffectiveness of a defendant's attorney can constitute "cause and prejudice" sufficient to overcome a procedural bar. United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Mr. Spencer has argued that his attorney was ineffective in failing to challenge the jury composition at trial. We construe this argument to include a claim that his attorney was ineffective in failing to raise the composition of the jury on appeal, as well.

To show ineffectiveness of counsel, a defendant must establish both that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). " [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690.

Here, Mr. Spencer's own pleadings and affidavit establish that his attorney made a strategic choice not to challenge the racial makeup of the jury on the ground that the jury, as composed, would be more favorable to Mr. Spencer's position. R.I, doc. 1 at 16; doc. 10 at 1. His attorney did, however, ensure that the jury was questioned regarding their racial beliefs and their ability to be impartial in light of Mr. Spencer's race. Supp. R. II at 49-51, 53-54. Mr. Spencer has not overcome the presumption that this decision fell within the bounds of " 'sound trial strategy.' " Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). He has not shown, therefore, that his attorney acted unreasonably in failing to challenge the composition of the jury.

Because Mr. Spencer cannot show that his attorney's decision was unreasonable, he also cannot show that he was prejudiced by her failure to raise the jury composition issue on appeal. That is, he cannot show that he would have prevailed on appeal had she raised the issue. See Walling, 982 F.2d at 449. Mr. Spencer has not shown cause and prejudice, therefore he is procedurally barred from raising his jury challenge in a 2255 motion. See id.

Mr. Spencer also argues that his attorney was ineffective in failing to interview and call Mr. Blea as a witness. He argues that had Mr. Blea been called, he would have contradicted Ms. Larson's testimony on a number of points. We have reviewed Mr. Blea's proposed testimony and conclude that it would not, in any way, have affected the outcome of the trial. The statements which Mr. Blea allegedly would have contradicted were not made at trial, but before the grand jury. Mr. Blea would not have been permitted to testify to Mr. Spencer's hearsay statement regarding his innocence. The evidence against Mr. Spencer, even without Ms. Larson's testimony, was formidable. Therefore, assuming that counsel's conduct was unreasonable, the allegedly deficient performance could not have prejudiced Mr. Spencer, and his right to effective assistance of counsel was not violated.

The judgment of the United States District Court for the District of Colorado is AFFIRMED. The mandate shall issue forthwith.