FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 11, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-2077
          v.                                           (D. New Mexico)
 STEVE NATHANIEL JACKSON,                    (D.C. Nos. 1:10-CV-00713-RB-KBM
                                                  and 2:06-CR-01795-RB-1)
               Defendant - Appellant.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



      Petitioner and appellant Steve Nathaniel Jackson, proceeding pro se, seeks

a Certificate of Appealability (“COA”) to enable him to appeal the dismissal of

his 18 U.S.C. § 2255 petition. Concluding that he has not satisfied the

requirements for the issuance of a COA, we deny his request for a COA and

dismiss this matter.




      *
       This order is not binding precedent except under the doctrines of law of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.
                                 BACKGROUND

      Mr. Jackson was on parole, and had given his supervising officers two

addresses where they could contact him. One house, “203 South Douglas,” was

the home of his aunt, Ruby Patterson. The other house, “208 South Douglas,”

was directly across the street and was the home where Mr. Jackson and his

girlfriend, Idela Royals, sometimes stayed. Mr. Jackson subsequently testified

that the 208 address was a “family home” that he owned and had bought for his

mother, and that he allowed family and friends to live there.

      Pursuant to the terms of his parole, both homes could be visited by his

parole officers. During a routine check on parolees, parole officers went to the

208 South Douglas address, after finding Mr. Jackson unavailable at the 203

South Douglas address. As described in our direct appeal affirming Mr. Jackson’s

conviction, New Mexico Probation and Parole Officer Mark Cubillos

      knocked on the front door while other officers positioned themselves
      around the house. Cubillos heard “quick movement” inside. He
      knocked again and identified himself. He continued to hear
      movement from within the house. Cubillos continued to knock and
      identify himself for approximately seven more minutes. Finally,
      [Mr.] Jackson opened the door. Due to [Mr.] Jackson’s delay in
      answering the door, the officers decided to search the residence.

United States v. Jackson, 334 Fed. Appx. 900, 902 (record citation omitted) (10 th

Cir. June 24, 2009) (this court’s affirmance of his conviction on direct appeal).

      During the search, the officers discovered obvious drug paraphernalia,

photographs of Mr. Jackson and mail addressed to him at 208 South Douglas, as

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well as 7.9 grams of crack cocaine and a box of ammunition. Additionally, an

officer noticed that the ceiling door to the attic was awry, and he therefore pushed

open the door and looked in the attic. He discovered a total of 206.8 grams of

crack cocaine in the attic.

      Several days later, an acquaintance of Mr. Jackson’s (and a potential

witness on behalf of Mr. Jackson), Joseph Armstrong, signed an affidavit

prepared by Mr. Jackson’s attorney at the time, stating that the cocaine found at

208 South Douglas was his, not Mr. Jackson’s, and that he stayed at the 208

South Douglas residence on “many occasions.” See 

(record citation

omitted).

      Some three months later, agents from the Drug Enforcement Administration

(“DEA”), as well as state drug task force officers, interviewed Mr. Armstrong,

who initially claimed the cocaine found at the 208 South Douglas residence was

his, not Mr. Jackson’s. He subsequently recanted, saying that the cocaine did not

belong to him, and that he was only trying to help Mr. Jackson. Mr. Armstrong

further said that he had been friends with Mr. Jackson for a long time and

considered him to be family. Mr. Armstrong also stated that he had not been

promised anything specific for claiming the cocaine belonged to him, but that he

believed that Mr. Jackson would “take care of him.” See 

omitted). When asked what he would say if under oath, Mr. Armstrong admitted

he would say the cocaine did not belong to him.

                                         -3-
      Two months later, Mr. Armstrong again changed his story. In a videotaped

statement taken in the office of Mr. Jackson’s then-attorney, but not under oath or

subject to cross-examination, Mr. Armstrong claimed that the cocaine found

inside the 208 South Douglas residence actually belonged to him. He further

stated that the residence was owned by Mr. Jackson’s grandmother, but he (Mr.

Armstrong) had been living there for five or six years with the permission of Mr.

Jackson’s sister. He said he did not know who was responsible for the cocaine.

He also said he was distantly related to Mr. Jackson and that “they were close.”

Armstrong was asked it he knew that both crack and powder

cocaine had been found at the 208 residence, he said that there was “hard and cut

up cocaine.” 

omitted). He further stated that, based on

statements made to him by the government agents who initially interviewed him,

he thought he was going to be arrested. Mr. Armstrong also said that he was not

forced or threatened to make the videotaped statement in which he claimed

ownership of the cocaine and he said he would be willing to testify at trial.

      Prior to his trial, Mr. Jackson filed a notice of intent to use Mr.

Armstrong’s affidavit and videotaped statements at trial, pursuant to the hearsay

exceptions set forth in Fed. Rules of Evid. 804(b)(3) and 807. The government

opposed the introduction of the statements. The district court ruled that the

statements were inadmissable hearsay and did not satisfy the requirements for

                                          -4-
admission under either Rule 804(b)(3) or Rule 807, because Mr. Jackson had

failed to provide sufficient corroboration of their trustworthiness. The court also

ruled that Mr. Armstrong’s statements did not necessarily exculpate Mr. Jackson,

because even if Mr. Armstrong owned the cocaine, Mr. Jackson could have

knowingly possessed it.

       Mr. Jackson then subpoenaed Mr. Armstrong to testify at Mr. Jackson’s

trial. Before the trial started, Mr. Armstrong’s attorney informed the court that

Mr. Armstrong would be invoking his Fifth Amendment right to remain silent.

Mr. Jackson objected, arguing that Mr. Armstrong did not have the right to invoke

the Fifth Amendment privilege because he had already inculpated himself in the

affidavit and the videotape.

       The court then placed Mr. Armstrong under oath and advised him of his

right to remain silent and elicited the admission from Mr. Armstrong that he

understood his Fifth Amendment right and had discussed it with his attorney. Mr.

Jackson objected, arguing that the court’s dialogue with Mr. Armstrong, as well

as certain statements made by the drug agents that Mr. Armstrong would be

arrested if he did not tell the truth, were coercive and interfered with Mr.

Armstrong’s right to decide whether to testify or not. The court then explicitly

stated that it had no intent to influence Mr. Armstrong’s decision whether to

testify.




                                          -5-
      When asked whether he would testify at Mr. Armstrong’s trial, Mr.

Armstrong stated he would invoke his right to remain silent. When Mr. Jackson

renewed his request to submit as evidence Mr. Armstrong’s affidavit and

videotaped statement, the court denied his request.

      Mr. Jackson was subsequently convicted by a jury of one count of

possession with intent to distribute cocaine base and aiding and abetting. He was

sentenced, pursuant to 21 U.S.C. § 851, to a mandatory sentence of life

imprisonment, because he had three prior state felony drug convictions. This was

to be followed by ten years of supervised release. As indicated above, our court

affirmed his conviction on direct appeal. See Jackson, 334 Fed. Appx. 900 (10 th

Cir. June 24, 2009). On appeal, Mr. Jackson argued that the district court had

infringed upon his right to present a defense by permitting Mr. Armstrong to

invoke his Fifth Amendment privilege, and that error was compounded by the

court’s refusal to admit Mr. Armstrong’s out-of-court statement exculpating Mr.

Jackson.

      After his direct appeal, in 2010, Mr. Jackson filed the instant 28 U.S.C.

§ 2255 motion, alleging five claims of ineffective assistance of both trial and

appellate counsel, as well as two claims relating to his sentence. 1 The matter was

      1
       Prior to the instant 28 U.S.C. § 2255 motion, Mr. Jackson filed a petition
seeking habeas relief under 28 U.S.C. § 2241. In that petition, filed in the district
court for the Eastern District of Kentucky, he claimed that his life sentence
violated the Eighth Amendment because it was “grossly excessive” and because it
                                                                       (continued...)

                                         -6-
referred to a magistrate judge, who subsequently issued a 26-page proposed

findings and recommended disposition, finding that an evidentiary hearing was

unnecessary, and concluding that Mr. Jackson’s claims were without merit.

      More specifically, the magistrate judge held that the two sentencing issues

were identical to the claims he raised in his § 2241 petition. Because they were

not dismissed on their merits, the judge concluded the instant § 2255 petition was

not second or successive.

      With respect to Mr. Jackson’s claim that he is “actually innocent” of the

crime, so that the failure to allow him to present his defense was a complete

miscarriage of justice, the magistrate judge declared that such a freestanding

claim is not, in our circuit, a proper basis for habeas relief. See Lafevers v.

Gibson, 

, 1265 n.4 (10 th Cir. 2001) (holding that “an assertion of

actual innocence, although operating as a potential pathway for reaching

otherwise defaulted constitutional claims, does not, standing alone, support the

granting of the writ of habeas corpus”).

      With respect to his claim that his counsel was ineffective on appeal because

he failed to challenge the district court’s denial of his motion for acquittal, the


      1
       (...continued)
was based on now-disavowed higher penalties for crack cocaine than for powder
cocaine. The district court dismissed the case, stating that “Jackson has not
demonstrated that his available remedy under 28 U.S.C. § 2255 is inadequate or
ineffective to challenge his federal conviction and sentence.” Jackson v. Wilson,

, at *1 (E.D. Ky. March 17, 2010).

                                           -7-
magistrate judge gave Mr. Jackson the benefit of the doubt and construed his

petition as “raising claims of constitutional dimension based on an impermissible

interference with presentation of the defense, sufficiency of the evidence, and

[appellate counsel’s] alleged failure to raise a sufficiency of the evidence claim

on appeal.” Proposed Findings & Rec. Disposition at 13, R. Vol. 1 at 120. After

noting that “actual innocence” and “complete miscarriage of justice” are typically

associated with a procedural bar, the magistrate judge went on to analyze the

petition “based on the assumption that Petitioner wants to counter any possible

default issue on ineffectiveness and/or innocence/justice grounds.” 

R.

Vol. 1 at 121.

      The magistrate judge then examined the petition on the merits, determining

whether appellate counsel was ineffective under Strickland v. Washington, 

(1984). After concluding that our court on direct appeal had decided the

merits of all the issues underling the ineffectiveness claims, the magistrate judge

determined as follows:

             In light of the Tenth Circuit’s rulings, the issues of agent
      coercion, presentation of the defense and sufficiency of the evidence
      are not subject to relitigation in this § 2255 matter. Those rulings,
      particularly the sufficiency ruling, are also dispositive of the
      ineffectiveness inquiry. Whether or not [appellate counsel] briefed
      the issue of sufficiency on appeal is of no consequence, . . . because
      the issue was in fact decided. Thus, there can be no deficient
      conduct or prejudice from [the claim] where Petitioner asserts
      [appellate counsel] was ineffective for failing to challenge [the trial
      court’s] denial of judgment of acquittal on the basis that there was a
      “complete lack of evidence.”

                                         -8-
Proposed Findings & Rec. Disposition at 19, R. Vol. 1 at 126. Finally, the

magistrate judge examined Mr. Jackson’s other ineffectiveness claims, finding

they were meritless because they seek to relitigate issues already decided, and

those issues disposed of the Strickland claims.

      Out of an admirable abundance of caution, the magistrate judge also

determined there was an alternative ground for denying Mr. Jackson’s

ineffectiveness claims. This was because they were all premised on the erroneous

assumption that the jury should have heard the claimed evidence that Mr.

Armstrong owned the drugs, despite any other interests like the Fifth Amendment

privilege, and/or that counsel should have done something more to demonstrate

the trustworthiness of that evidence. Those issues were not subject to relitigation

now, since our court on direct appeal had essentially found that any error

regarding the sufficiency of the evidence was harmless.

      Finally, turning to the sentencing issues raised by Mr. Jackson, the

magistrate determined they were meritless.

      The district court adopted the magistrate’s report and recommendation in

full and dismissed Mr. Jackson’s petition and denied a COA. This request for a

COA followed.

                                  DISCUSSION

      Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make

“a substantive showing of the denial of a constitutional right.” Miller-El v.

                                         -9-
Cockrell, 

, 336 (2003). He may do so by “showing that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 

, 484 (2000)

(internal quotation marks omitted). Thus, when the district court has ruled on the

merits of the prisoner’s claims, he must show that “reasonable jurists could find

the district court’s assessment of the constitutional claims debatable or wrong.”

district court ruled on procedural grounds, a COA may be granted

when the petitioner shows “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and . . .

whether the district court was correct in its procedural ruling.” 

from the description above, the magistrate judge’s lengthy

decision, as adopted by the district court, was thorough and precise. We cannot

improve on its analysis. Accordingly, for substantially the reason set forth in that

decision, we agree that a COA should not issue and this matter should be

dismissed.

                                    CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge

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