Submitted December 19, 2013
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For John Coleman, Petitioner - Appellant: Unes J. Booth, Booth Law Firm, Osceola, IA.
John Coleman, Pro se, Petitioner - Appellant, Ray Brook, NY.
For United States of America, Respondent - Appellee: John D. Keller, U.S. Attorney's Office, Davenport, IA; Mary Clare Luxa, Clifford D. Wendel, U.S. Attorney's Office, Des Moines, IA.
Before MURPHY, BYE, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
A jury convicted John W. Coleman of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (" Count 2" ); possession of ecstacy with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (" Count 3" ); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(I) (" Count 4" ); and felon in possession of firearms and ammunition, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2) (" Count 5" ). The district court sentenced Coleman to a total of 300 months' imprisonment. On appeal, this court affirmed the judgments and sentences entered against Coleman. United States v. Coleman, 603 F.3d 496 (8th Cir. 2010).
Thereafter, Coleman petitioned to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing, among other things, that his trial counsel was ineffective for conceding to the jury that Coleman was guilty of being a felon in possession of a firearm under Count 5. The district court denied Coleman relief but issued a certificate of appealability on this claim. We affirm.
Coleman was a passenger in a vehicle that officers of the Des Moines Police Department stopped for a traffic violation. 603 F.3d at 498. Coleman was seated in the front seat passenger side of the vehicle. Id. The officers arrested Coleman after he provided them with false information during questioning. Id. " A 9 millimeter magazine was discovered on Coleman. A loaded Ruger 9 millimeter handgun [(" Ruger" )], cocaine[,] and ecstasy tablets were discovered in the glove box in front of Coleman's seat. A loaded Taurus .40 caliber handgun [(" Taurus" )] and a loaded magazine were discovered behind Coleman's seat." Id. Following his indictment, Coleman proceeded to trial on Counts 2-5.
During opening argument, Coleman's trial counsel stated:
The stipulations that will come in are the fact that Mr. Coleman was, in fact, in possession of the .40-caliber Taurus and he was in possession of the 9-millimeter handgun.
The evidence will show, however, that the other individuals in the car were responsible for the drugs and that Mr. Coleman did not have any knowledge of the fact that the narcotics were in the vehicle.
In actuality, Coleman's stipulation provided that the guns had moved in interstate commerce and that Coleman was a felon but did not state that Coleman was conceding to " possession" of the firearm. The stipulation provided:
2. The parties agree and stipulate that the Ruger 9 mm handgun and a Taurus 40 caliber handgun, which the parties agree and stipulate are firearms, and ammunition that constitute exhibits 1-12 that were seized during a traffic stop of a white Pontiac at approximately the 1200 block of University Ave[.] in Des Moines, Iowa, on May 17, 200, were each manufactured outside the State of Iowa.
3. The parties agree and stipulate that prior to May 17, 200, Defendant John Coleman had been convicted of a crime punishable by imprisonment for a term exceeding one year as referenced in Title 18, United States Code, Section 922(g).
In his closing argument, Coleman's trial counsel admitted that Coleman was in possession of both firearms and directed the jury to find Coleman guilty of Count 5--felon in possession of firearms and ammunition. However, trial counsel asserted that Coleman did not possess the firearms in furtherance of a drug trafficking crime--Count 4:
The one thing [that] we will tell you is in the stipulation, Exhibit No. 19, Mr. Coleman acknowledges he was in the state of Indiana and he purchased two firearms. There were three purchased that day, but Mr. Coleman, the subject of this criminal case, there's two. He acknowledges that.
And I will tell you on behalf of Mr. Coleman, as his defense attorney, you are obligated to find him guilty of Count 5. That is the fact. He's guilty of it. He stipulated to the fact that he's a felon and he's in possession ...