United States v. Deiter, No. 17-2159 (10th Cir. 2018)Annotate this Case
Early in the morning of November 12, 2009, police officers from the Albuquerque, New Mexico, Police Department were dispatched to an apartment complex to investigate a 911 domestic violence call. Upon their arrival, they saw Walter Deiter and his wife, D’Leah Harris, in the middle of the street. When Deiter and Harris saw the officers, they separated, each walking in the opposite direction. Deiter proceeded toward the apartment complex; Officer Patricia Whelan followed him. Deiter went behind a staircase; Whelan temporarily lost sight of him. Deiter emerged a few minutes later on the second-story open breezeway. Whelan told Deiter to come down and talk to her. But before doing so, he made a “squatting, bending motion” which led Whelan to believe he had “dropped” something illegal. She could not see what was dropped because a three- to four-foot tall wall obstructed her view, but once Deiter came down the stairs, Whelan asked Officer Sammy Marquez to determine what had been dropped. As Marquez proceeded up the steps to the second-story breezeway, Deiter took off running. Deiter was eventually brought down with a taser; once he was secured, officers found a holster containing a loaded .22 caliber revolver. Forensic testing revealed Deiter’s DNA on both the holster and firearm. The firearm also contained a small amount of DNA from an unidentified source. A jury convicted Deiter of being a felon in possession of a firearm and ammunition. Deiter filed a 28 U.S.C. 2255 motion, claiming a prior bank robbery conviction could not be deemed a “violent felony” supporting the Armed Career Criminal Act (ACCA) enhancement to the sentence he ultimately received. He also argued trial counsel was ineffective for (1) failing to challenge his ACCA sentence and (2) reading a transcript of Whelan’s belt tape recorder to the jury which contained an incriminating statement from a witness. After review of the briefs submitted for review, the Tenth Circuit found no reversible error to Deiter's sentence, nor ineffective assistance of counsel.