Filed: Oct. 05, 2010
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit October 5, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 09-3149 (D.C. Nos. 5:08-CV-04012-RDR WILLIAM LEONARD PICKARD, and 5:00-CR-40104-RDR-1) (D. Kan.) Defendant-Appellant. _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 09-3150 CLYDE APPERSON, (D.C. Nos. 5:08-CV-04013-RDR and 5:00-CR-40104-RDR-2) Defendant-Appellant. (D. Kan.) ORDER DE
Summary: FILED United States Court of Appeals Tenth Circuit October 5, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 09-3149 (D.C. Nos. 5:08-CV-04012-RDR WILLIAM LEONARD PICKARD, and 5:00-CR-40104-RDR-1) (D. Kan.) Defendant-Appellant. _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 09-3150 CLYDE APPERSON, (D.C. Nos. 5:08-CV-04013-RDR and 5:00-CR-40104-RDR-2) Defendant-Appellant. (D. Kan.) ORDER DEN..
More
FILED
United States Court of Appeals
Tenth Circuit
October 5, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3149
(D.C. Nos. 5:08-CV-04012-RDR
WILLIAM LEONARD PICKARD, and 5:00-CR-40104-RDR-1)
(D. Kan.)
Defendant-Appellant.
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-3150
CLYDE APPERSON, (D.C. Nos. 5:08-CV-04013-RDR and
5:00-CR-40104-RDR-2)
Defendant-Appellant. (D. Kan.)
ORDER DENYING CERTIFICATE OF APPEALABILITY *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Appellants Clyde Apperson and William Leonard Pickard appeal from the
district court’s denial, without an evidentiary hearing, of their motions to vacate,
set aside, or correct their sentences under 28 U.S.C. § 2255. The district court
also denied their applications for a certificate of appealability (COA), and they
have each filed an application in this court for a COA. We deny both applications
for a COA and dismiss the appeals. We also deny appellants’ outstanding
motions to supplement the record or remand.
I. Facts and Procedural History
Appellants each were convicted of one count of conspiracy to manufacture
lysergic acid diethylamide (LSD), in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and one count of possession with intent to distribute LSD, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Apperson was sentenced to
thirty years’ imprisonment, and Pickard received a life sentence. We affirmed
their convictions on direct appeal in a lengthy opinion. United States v.
Apperson, 441 F.3d 1162 (10th Cir. 2006). We also denied their petition for
rehearing en banc, and the Supreme Court denied their petitions for writ of
certiorari. They now seek to appeal from the district court’s denial of their
motions for relief under 28 U.S.C. § 2255.
-2-
II. Appellants’ Applications for a Certificate of Appealability
We must first address appellants’ pending applications for a COA because
the “[i]ssuance of a COA is jurisdictional.” United States v. Silva, 430 F.3d 1096,
1100 (10th Cir. 2005). “A COA should issue if the applicant has ‘made a
substantial showing of the denial of a constitutional right,’ 28 U.S.C.
§ 2253(c)(2), which [the Supreme Court has] interpreted to require that the
‘petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)
(emphasis added)). If, however, the district court denied relief on an issue on a
procedural ground, without reaching the underlying constitutional claim, then the
two-part standard developed in Slack applies, and the petitioner must show “‘that
jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right,’ and that ‘jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’”
Dulworth v. Jones,
496 F.3d 1133, 1137 (10th Cir. 2007) (quoting
Slack, 529 U.S.
at 484).
“The COA determination under § 2253(c) requires an overview of the
claims in the habeas petition and a general assessment of their merits.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also United States v.
Springfield,
337 F.3d 1175, 1177 (10th Cir. 2003). The statute forbids “full
-3-
consideration of the factual or legal bases adduced in support of the claims.”
Miller-El, 537 U.S. at 336; see also
Silva, 430 F.3d at 1100. Further, “in
applying for a COA, [a prisoner] is not required to prove the merits of his case,
[but] he must demonstrate ‘something more than the absence of frivolity or the
existence of mere good faith’ on his part.”
Silva, 430 F.3d at 1100 (quoting
Miller-El, 537 U.S. at 338) (emphasis added).
“Keeping in mind the standard of review governing a request for a [COA],
. . . the district court’s legal rulings on a § 2255 motion are reviewed de novo and
its findings of fact for clear error.” United States v. Kennedy, 225 F.3d 1187,
1193 (10th Cir. 2000). Under § 2255, the district court is required to conduct an
evidentiary hearing “unless the motions and files and records of the case
conclusively show that prisoner is entitled to no relief,” and the denial of an
evidentiary hearing is reviewed for an abuse of discretion.
Kennedy, 225 F.3d
at 1193.
Appellants argue that: (1) the government violated its obligations under
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150
(1972), by suppressing its witnesses’ criminal and informant backgrounds; (2) the
district court erred by failing to expressly address their Brady/Giglio claims
numbered A.1 through J.2 and failing to address specific claims on a
claim-by-claim basis; (3) the district court erred in denying Pickard’s claim that
the government violated his expectation of privacy by entering the premises near
-4-
Wamego, Kansas, without a search warrant; (4) the district court erred in denying
their claim regarding prosecutorial misconduct based on the government’s alleged
failure to disclose exculpatory evidence and the government’s alleged alteration
of exhibits; (5) the district court erred in finding that the evidence was sufficient
to support the convictions when considering newly discovered evidence; (6) the
district court abused its discretion in denying their motion for discovery; (7) the
district court abused its discretion in denying their motion to amend and/or
correct the record; (8) the district court erred in denying their § 2255 motions
without a hearing; and (9) the district court erred in denying their applications for
a COA. See Aplt. Consol. Br. at 3-4.
We have carefully reviewed appellants’ brief and the authorities cited
therein in light of the district court’s decision and the governing standards for the
issuance of a COA. We are not persuaded that the district court failed to address
any of their claims. With regard to issues the district court denied on the merits,
appellants have not demonstrated a reasonable probability that the outcome would
have been different if they had been provided with more impeachment evidence.
See United States v. Bagley, 473 U.S. 667, 682 (1985). As a result, we are not
persuaded that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed further.”
Kennedy, 225 F.3d at 1193 (quotation omitted). With regard to issues the district
-5-
court denied on a procedural ground, appellants have not shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Dulworth,
496 F.3d at 1137 (quotations omitted). As a result, appellants have not
demonstrated that the district court abused its discretion in denying their § 2255
motions without an evidentiary hearing. See
Kennedy, 225 F.3d at 1193. The
request for a COA in both appeals is therefore denied.
III. Pending Motions
Six of appellants’ motions remain to be decided. On November 5, 2009,
Pickard filed a “Motion for Remand Regarding Uncontested Motions (Doc. 611,
612) and Unaddressed Claims[,]” and the government filed a response. The
motion is denied because Pickard’s filing of his notice of appeal one week after
he filed the referenced motions divested the district court of jurisdiction to decide
them, Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.
2006), and because the motion improperly circumvents the page limit on
appellants’ opening brief by raising arguments that should have been fully
developed in the merits brief.
On November 5, 2009, Pickard filed a “Motion to Supplement the Record
and Motion for Remand for Evidentiary Hearing on Recently Released IRS and
-6-
FBI Records[,]” and the government filed a response. The motion is denied for
two reasons. First, Pickard has not demonstrated that the circumstances of this
case constitute the rare exception justifying the exercise of our “inherent
equitable power” to supplement the record on appeal with material not presented
to the district court. See Kennedy, 225 F.3d at 1192. Second, the motion
otherwise improperly circumvents our procedures for requesting permission to
proceed with a second or successive § 2255 motion. See United States v. Nelson,
465 F.3d 1145, 1147-49 (10th Cir. 2006) (holding that any motion containing a
habeas claim is subject to the authorization requirements for a second or
successive filing); Spitznas v. Boone,
464 F.3d 1213, 1215 (10th Cir. 2006)
(holding that a habeas claim is any claim that “in substance or effect asserts or
reasserts a federal basis for relief from the petitioner’s underlying conviction”).
On December 8, 2009, Pickard filed a “Motion for Leave to Supplement the
Record on Appeal[,]” and the government filed a response. The motion is denied
because Pickard never identified the exhibits he wished to add to the record, even
after we entered an order on January 12, 2010, which, in part, gave Pickard
permission to file an addendum with the exhibits he wished to add to the record
on appeal.
On February 9, 2010, appellants filed a “Motion to Supplement the Record
and Motion for Remand for Evidentiary Hearing on Recently Released
-7-
Multi-Agency HIDTA[ 1] Records[,]” and the government filed a response. The
motion is denied because it improperly circumvents our procedures for requesting
permission to proceed with a second or successive § 2255 motion.
On May 13, 2010, appellants filed a “Motion to Supplement with Newly
Discovered Evidence of 1,089 OCDETF[ 2]/FBI Records[,]” which included a
motion to compel the government to respond on the merits. The motion to
supplement with newly discovered evidence is denied. Although appellants ask
us to compel the government “to address the issues in the motions, rather than
incorrectly characterizing as ‘second or successive’ the supplemental evidence to
an existing claim[,]” May 13, 2010, Mot. to Supp. at 2, they have not made any
showing that their motion to supplement with newly discovered evidence is not a
second or successive § 2255 motion under Tenth Circuit law. Cf. Douglas v.
Workman, 560 F.3d 1156, 1187 (10th Cir. 2009) (holding “under the unique
circumstances” presented that it was appropriate to treat prisoner’s “Brady claim
as a supplement to the prosecutorial misconduct claims he alleged in his initial
habeas petition”).
On July 16, 2010, appellants filed a “Motion to Supplement with
Discovered Evidence of FBI Records Resolving Claim B.12[.]” The motion is
denied because it improperly circumvents our procedures for requesting
1
High Intensity Drug Trafficking Areas program.
2
Organized Crime Drug Enforcement Task Force.
-8-
permission to proceed with a second or successive § 2255 motion. Appellants
have not shown that their motion to supplement with newly discovered evidence
is comparable to “the unique circumstances” that would justify treating it as a
supplement to a claim they alleged in their initial habeas petition. See Douglas,
560 F.3d at 1187.
IV. Conclusion
Appellants’ applications for a certificate of appealability are denied. All
outstanding motions are denied. The appeals are DISMISSED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-9-
