Professional Documents
Culture Documents
October 6, 2011
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
No. 11-3122
v.
(D. of Kan.)
Defendant-Appellant.
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Dormer was tried along with a co-defendant. Before trial, Dormers lawyer
filed a motion to sever Dormers trial from his co-defendant, which the court
denied without prejudice. Dormers attorney never renewed his motion to sever.
After trial, the jury returned a guilty verdict for both Dormer and his codefendant. In addition to finding Dormer guilty of conspiring to distribute
marijuana, the jury determined that he conspired to distribute 100 kilograms or
more but less than 1,000 kilograms of marijuana. Accordingly, Dormer was
sentenced to 151 months incarceration.
Dormer filed a direct appeal and we affirmed his conviction and sentence.
Dormer filed a petition for writ of certiorari with the United States Supreme
Court, which was denied. Dormer timely filed his 2255 motion with the district
court. The district court denied his motion and Dormer now seeks a COA
pursuant to 28 U.S.C. 2253(c)(1).
II. Discussion
Dormer argues he was denied effective assistance of counsel because his
attorney erroneously chose to cross-examine a witness despite having no strategic
reason for doing so.
To obtain a COA, Dormer must demonstrate a substantial showing of the
denial of a constitutional right. 28 U.S.C. 2253(c)(2). Making that showing
requires demonstrating that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
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but for counsels unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694. A defendant must demonstrate both
Strickland prongs to prevail, and a failure to prove one is dispositive. If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.
Smith v. Robbins, 528 U.S. 259, 286 n.14 (quoting Strickland, 466 U.S. at 697).
Dormer argues that his trial counsels decision to cross-examine a
government witness was reversible error. Dormer concedes that an attorneys
choice of questions during cross-examination or deciding not to call or crossexamine a witness in the first place are tactical decisions and presumptively
reasonable. But he argues there was no strategic or tactical purpose for choosing
to cross-examine the witness, since the testimony on direct examination had not
harmed his case.
Specifically, Dormer points to the following exchange as the most
troubling, in which the witness recounts her astonishment that Dormer would call
the police to report his vehicle stolen:
Q.
A.
[Witness:] Yes.
Q.
A.
Correct.
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Q.
A.
Q.
A.
No, it doesnt.
Q.
A.
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We agree with the district court that counsels cross-examination did not
violate either prong of Strickland.
First, we are not convinced with Dormers argument that the witnesss
testimony on direct examination was benign, and not worthy of challenge. While
Dormer is correct that the crux of the witnesss testimony focused on Dormers
co-defendant, the witness did mention Dormer in the relevant portions of her
testimony focusing on the co-defendants arrest in December 2002. As she
testified:
Q.
A.
[Witness:] Yes.
Q:
A:
That Dean [Dormer] called the police and reported [a coconspirators] car stolen.
Q:
A:
Q:
Okay.
A:
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of the cross-examination not cited by Dormer, his trial counsel tries to push the
witness as to Dormers involvement:
Q.
[Dormers Trial Counsel:] [In the aftermath of the codefendants arrest] Did the name the name Dean Dormer
didnt ring a bell with you at that point, right?
A.
[Witness:] Right.
Q.
And what did did you say to [the co-defendant], Well, who
the heck is Dean Dormer?
A.
Yeah, I did.
Q.
A.
Q.
. . . Did they think that Mr. Dormer worked for the police?
A.
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III. Conclusion
For the foregoing reasons, we DENY Dormers application for a COA and
DISMISS his appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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