United States v. Irby

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 95-20451
Summary Calendar
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH ODELL IRBY,
MICHELLE PIERATT IRBY,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of Texas
(H-94-CV-2186)

November 26, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

Keith and Michelle Irby appeal the district court’s dismissal

of the 28 U.S.C. § 2255 motion filed by Keith Irby. Because

Michelle Irby is not a party to this suit, her appeal is dismissed;

as to Keith Irby, the district court’s judgment is affirmed.

Facts and Proceedings Below

On November 6, 1989, a petit jury convicted the Irbys on

*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
several counts of mail fraud, in violation of 18 U.S.C. §§ 2, 1341,

arising out of their operation of a company which provided medical

equipment to Medicare recipients. Keith Irby was sentenced to a 5-

year term of supervised probation, a $15,000 fine, and 1,000 hours

of community service. Michelle Irby received a 5-year term of

supervised probation, a $7,000 fine, and 500 hours of community

service. These convictions and sentences were affirmed on direct

appeal. United States v. Irby, 935 F.2d 1291 (5th Cir. 1991)

(TABLE), cert. denied, 112 S.Ct. 2002 (1992).

Michelle Irby’s probationary period was wholly terminated by

the sentencing district court on July 10, 1992. On July 15, 1994,

Keith Irby, proceeding pro se, filed this section 2255 motion. The

district court subsequently terminated Keith Irby’s probationary

period on November 5, 1994. On April 26, 1995, the district court

summarily dismissed Irby’s section 2255 motion, finding that the

proffered claims were “frivolous and/alternatively moot because the

defendants are no longer laboring under any order of the court.”

A motion for reconsideration was subsequently denied, and Irby

timely appeals.1

1
This Circuit has yet to address the effect of the
Antiterrorism and Effective Death Penalty of 1996, Pub.L. No. 104-
132, 110 Stat. 1214 (1996), and its requirement of a “certificate
of appealability” as a precondition to appeal in cases arising
under 28 U.S.C. §§ 2254-2255. 28 U.S.C. § 2253(c)(2) (as amended).
This Circuit has applied the AEDPA amendments retroactively to
appeals from persons in state custody proceeding under 28 U.S.C. §
2254, Drinkard v. Johnson, No. 94-20563, F.3d (5th Cir.
Oct. 7, 1996), and has held that the standard for obtaining a COA

2
 Discussion

We consider at the outset the status of Michelle Irby in this

lawsuit. Our review of the record reveals that the original

application for relief named as a party and bore the signature of

Keith Irby alone. Supplemental filings, however, did name Michelle

Irby as an additional complainant, but none of them were signed by

her (nor was any other paper filed below so signed). Furthermore,

the district court’s orders, the notice of appeal, and the briefs

filed in this court all treat Michelle Irby as a party to this

proceeding, although her signature appears nowhere in the record.

As a general rule, parties who proceed pro se are required to

sign “every pleading, written motion, and other paper” filed. Fed.

is the same as that which governed pre-amendment the issuance of a
“certificate of probable cause.” See also Herman v. Johnson, No.
96-10367, F.3d (5th Cir. Oct. 10, 1996). Because the
antecedent version of section 2253 contained no similar requirement
for CPC in section 2255 cases, however, the retroactivity question
presented herein is arguably distinguishable from that addressed in
Herman and Drinkard. See Thye v. United States, 1996 WL 539132, 96
F.3d 635 (2d Cir. 1996) (holding AEDPA amendments cannot be applied
retroactively to section 2255 proceedings). Regardless, we do not
reach the retroactivity question in this opinion. Rather, “since
the scope and retroactive effect of [the amendments] are far more
substantial matters than the merits of [Irby’s] appeal, and since
the appeal has been fully briefed, we . . . have adjudicated the
appeal.” Knecht v. United States, 1996 WL 570242, *1 (2d Cir. Oct.
4, 1996) (unpublished disposition). Accord, United States v.
Reddeck, 1996 WL 532156 (10th Cir. Sept. 19, 1996). To the extent
that current law requires a certificate of appealability, we
construe Irby’s notice of appeal as an application for COA and
grant same as the case has in any event been fully briefed.
Santana v. United States, 1996 WL 596845 (3d Cir. Oct. 18, 1996).
See also Sherman v. Scott, 62 F.3d 136 (5th Cir. 1995) (construing
notice of appeal as an application for CPC in section 2254 case),
cert. denied, 116 S.Ct. 1279 (1996).

3
R. Civ. P. 11(a); Business Guides v. Chromatic Communications, 111

S.Ct. 922, 928 (1991). 28 U.S.C. § 2242, however, provides that

applications for habeas relief may be signed “by the person for

whose relief it is intended or by someone acting in his behalf.”

See also Fed. R. Civ. P. 3(c) ("A notice of appeal filed pro se is

filed on behalf of the party signing the notice and the signer’s

spouse and minor children, if they are parties, unless the notice

of appeal clearly indicates a contrary intent”). Section 2242 is

a writ-specific statute which, under Federal Rule of Civil

Procedure 81(a)(2), takes precedence over Rule 11(a)’s personal

signature requirement. Thus, given Michelle Irby’s tacit inclusion

as a party plaintiff in the supplemental petitions filed a’ quo,

her participation in this lawsuit would appear to be proper,

assuming, arguendo only, that section 2242 was applicable to

section 2255 proceedings. See Rodriguez v. Holmes, 963 F.2d 799,

801 (5th Cir. 1992) (“allegations of a pro se complaint . . . must

be read in a liberal fashion, and however inartfully pleaded must

be held to less stringent standards than formal pleadings drafted

by lawyers”) (quotation marks omitted) (citations omitted).

The Supreme Court has, however, promulgated rules which govern

section 2255 proceedings in federal district courts. Rule 2(b) of

these rules provides in pertinent part that applications “shall be

signed under penalty of perjury by the petitioner,” directly

conflicting with the more lenient statutory signature standard of

4
section 2242.2 Because Rule 2(b) was promulgated under the

authority of the Rules Enabling Act, 28 U.S.C. § 2071 et seq., its

personal signature requirement supersedes that of section 2242

unless the latter provision can be typified as jurisdictional or

embodying a “substantive right.” 28 U.S.C. § 2072(b) (“All laws in

conflict with such rules shall be of no further force or effect

after such rules have taken effect”). See United States v. Chase,

18 F.3d 1166, 1171 (4th Cir. 1994); United States v. Sasser, 971

F.2d 470, 473 (10th Cir. 1992), cert. denied, 113 S.Ct. 1292

(1993); Griffith Co. v. NLRB, 545 F.2d 1194, 1197 n.3 (9th Cir.

1976), cert. denied, 98 S.Ct. 171 (1977). Because section 2242's

signature requirement addresses only the adequacy of the pleadings

filed, we conclude that, even if it would otherwise be applicable

to section 2255 proceedings, it is merely a procedural device and

therefore displaced by the more stringent directive of Rule 2(b).

See Henderson v. United States, 116 S.Ct. 1638 (1996) (service

provisions of Fed. R. Civ. P. 4 supersede those of Suits in

Admiralty Act); Hanna v. Plumer, 85 S.Ct. 1136 (1965) (defining

2
This provision was added by the 1982 amendment to Rule 2(b).
Pub.L. 94-426, § 2(3), (4), Apr. 28, 1982. The liner notes to Rule
2(b) indicate that the rule was amended to take into account the
enactment of 28 U.S.C. § 1746, which provides that when federal law
requires that a sworn statement be given in writing the declarant
may substitute an unsworn statement, given under penalty of perjury
and in the form specified in the statute, in its place. See
Dickinson v. Wainwright, 626 F.2d 1184 (5th Cir. 1980); Carter v.
Clark, 616 F.2d 228 (5th Cir. 1980).

5
procedural rules, for both Rules Enabling Act and Erie purposes, as

those regulating practice and pleading).

Moreover, even if a section 2255 petition were deemed to be an

application for habeas corpus within the meaning of section 2242,

and even if Rule 2(b) were inapplicable, Michelle Irby’s petition

would not be governed by section 2242, because her sentence had

been in all respects completely discharged more than a year before

the proceedings below commenced in July 1994. Hence, neither

habeas corpus nor section 2255 jurisdiction existed with respect to

her conviction and sentence. Coram nobis would be the only

available avenue of relief for her, see United States v. Drobny,

955 F.2d 990, 996 (5th Cir. 1992), and as to it Rule 11(a) would

apply and require her signature.

Michelle Irby is not and never has been a party to this

lawsuit and accordingly we cannot consider the arguments broached

by Mr. Irby on her behalf.

Turning to Keith Irby’s application, we note first that the

district court erred in alternatively finding that Irby’s section

2255 motion was moot. “[T]he federal courts have held that the

conditions of parole and probation sufficiently restrain the

individual to constitute the ‘custody’ which is a condition of . .

. attacking a sentence under 28 U.S.C. § 2255.” Coronado v. United

States Board of Parole, 540 F.2d 216, 217 (5th Cir. 1976)

(citations omitted). In addition, the Supreme Court has

6
interpreted the statutory language to require only that the habeas

petitioner be in custody “at the time his petition is filed.”

Maleng v. Cook, 109 S.Ct. 1923, 1925 (1989) (citation omitted).

Because Irby filed his initial application several months before

his probation was terminated, this case is not moot.3

The district court also dismissed Irby’s application as

“frivolous”; accordingly, we must consider the merits of Irby’s

section 2255 motion. In considering a district court’s judgment

dismissing a section 2255 motion we review conclusions of law de

novo. United States v. Faubion, 19 F.3d 226 (5th Cir. 1994).

Irby’s ineffective assistance of counsel claims present mixed

questions of law and fact which are also subject to de novo review.

Id.

We first consider Irby’s claims that administrative

proceedings under the aegis of the Department of Health and Human

Services were not admitted into evidence in his criminal

prosecution. “Relief under § 2255 is reserved for (1) errors of

3
In Drobny, this Court treated claims raised by a federal
habeas petitioner for the first time on appeal, after his parole
had ended, under the more stringent standard governing the issuance
of a writ of error coram nobis. 955 F.2d at 996. In this case a
number of Irby’s claims were raised via supplemental filings in the
district court after his probation had terminated. This fact, when
considered in light of the Drobny court’s refusal to relate claims
raised after custody had terminated back to the date of original
filing, suggests there may be an issue regarding the standard by
which we should review a number of Irby’s claims. Because we find
that Irby’s claims fail even under the more lenient section 2255
standard, however, we decline to address this issue.

7
constitutional dimension and (2) other injuries that could not have

been raised on direct appeal and, if left unaddressed, would result

in a miscarriage of justice.” Faubion, 19 F.3d at 233 (citations

omitted). Construed liberally this claim is either one of estoppel

or a garden variety evidentiary challenge; in either case, the

absence of a cognizable constitutional violation renders it

facially defective.

We next consider Irby’s allegations that the prosecutor and

district judge, both of whom are black, conspired to convict him

because he is white. Irby posits that their discriminatory animus

is evidenced by government witnesses who testified that the Irbys

used racial slurs and consumed drugs, the prosecutor’s argument

that the Irbys were taking advantage of elderly minority patients,

the fact that most of the government doctors who testified against

them were non-white, and general commentary which allegedly

distorted the evidence. Irby’s allegations impugning the trial

judge and prosecutor do not even approach what is needed to state

a violation of his right to a fair trial. See United States v.

Mizell, 88 F.3d 288 (5th Cir. 1996) (discussing standard applicable

to claim that district judge’s conduct deprived defendant of a fair

trial); United States v. Crooks, 83 F.3d 103 (5th Cir. 1996)

(discussing standards governing improper prosecutorial commentary).

To the extent that Irby’s claim can be read as one of selective

prosecution, he has failed to even allege that similarly situated

8
defendants of other races were dissimilarly treated. United States

v. Armstrong, 116 S.Ct. 1480 (1996). Irby’s essentially conclusory

allegations in this respect are insufficient to state a claim under

section 2255.

We next turn to Irby’s claim that his counsel rendered

ineffective assistance in violation of the Sixth Amendment. To

prevail Irby must demonstrate both that his counsel’s performance

fell below an objective standard of reasonableness and that but for

this deficient performance there is a reasonable probability that

the outcome of the trial would have been different. Strickland v.

Washington, 104 S.Ct. 2052 (1984).

Irby complains first that his trial counsel helped “rewrite”

the indictment. Irby does not describe the indictment as it

supposedly existed prior to rewriting, much less the variations

that counsel supposedly introduced. Our review of the indictment

reveals that it was sufficient and adequately informed the Irbys of

the charges against them. United States v. Gaytan, 74 F.3d 545

(5th Cir.), cert. denied, 117 S.Ct. 77 (1996). This claim fails.

Irby next challenges trial counsel’s decision not to move for

a change of venue. Irby does not identify any prejudice in the

trial venue; in fact, insofar as he states that “over 100"

supporters were kept out of the courtroom by the trial judge, Irby

appears to be proclaiming community support. Nor is there anything

to suggest that had a change of venue been sought it would have

9
been granted.

Irby claims that trial counsel did not render adequate

assistance because he failed to take depositions, call expert

physicians, and subpoena witnesses from, inter alia, the Department

of Health and Human Services in Washington, D.C. Our review of the

record indicates that the district court’s determination that these

decisions were strategic ones, motivated at least in part by a

limited budget and reasonable under the circumstances, is not

erroneous. Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985).

Furthermore, because Irby’s filings do not specify how these

depositions and witnesses would have furthered his defense he has

failed to sufficiently plead the prejudice prong of Strickland.

Bridge v. Lynaugh, 838 F.2d 770 (5th Cir. 1988). This claim also

lacks merit.

Irby contends that trial counsel performed deficiently because

a defective hearing aid prevented counsel from hearing much of the

trial and timely objecting to prejudicial evidence. Irby has not

specified the evidence which was admitted without objection, nor

has he made any showing that timely objections would have resulted

in the evidence being excluded and a different verdict likely being

returned. United States v. Stedman, 69 F.3d 737 (5th Cir. 1995),

cert. denied, 116 S.Ct. 2512 (1996). Irby’s pleadings are

insufficient to show entitlement to relief under section 2255.

Irby posits that information regarding plea negotiations, as

10
well as information concerning the government’s investigation of

the Irbys, was not admitted at trial. Again, Irby’s allegations do

not indicate that any of this evidence would have been admissible

or, if admitted, would likely have resulted in a different outcome.

Irby has failed to adequately allege Strickland’s prejudice prong.

Stedman. This claim is meritless.

Irby argues that trial counsel rendered ineffective assistance

by failing to procure a tape either recorded by or featuring a

government witness, Mair Mayan. Irby has not alleged any

particulars regarding the content of that tape, nor has he placed

its use in the context of this witness’s testimony at trial so that

we can gauge its prospective impact. See United States v. Lauga,

762 F.2d 1288 (5th Cir.), cert. denied, 106 S.Ct. 173 (1985).

There is nothing to indicate Strickland prejudice.

Irby asserts that trial counsel performed deficiently in

failing to adequately cross-examine a number of government

witnesses. He contends that Mayan was not available for “further”

cross-examination, that Avis Brooks’ plea agreement with the

government was not exposed on cross, and that Tom Arnold,

previously convicted of obstruction of justice, was allowed to

testify. Insofar as these claims are not patently frivolous, they

fail to set forth the substance of the witness’s testimony and the

possible impact of any additional cross-examination. Clark v.

Collins, 19 F.3d 959 (5th Cir.), cert. denied, 115 S.Ct. 432

11
(1994). Thus, this claim must fail.

Finally, insofar as the multitude of oblique references to

perceived injustices which dot the landscape of Irby’s filings can

be construed to constitute claims of ineffective assistance of

counsel, we find they lack merit under the Strickland analysis.

Nothing in Irby’s allegations serves to undermine our

confidence in the outcome of his trial. The district court did not

err in summarily dismissing Irby’s section 2255 motion. Rule 4(b),

Rules Governing Section 2255 Proceedings. Accordingly, Irby’s

complaint that he was denied an evidentiary hearing is without

merit.

Conclusion

For the foregoing reasons, the district court’s judgment

denying Keith Irby’s section 2255 motion is AFFIRMED; the appeal of

Michelle Irby is DISMISSED.4

4
Irby also filed in the district court a writ of mandamus,
together with certain supplements thereto. Although so far as we
can ascertain the district court never ruled on this mandamus, the
papers respecting it were forwarded to this Court together with——but
not as part of——the record in this appeal. The mandamus and related
papers are not properly before us, and the clerk is directed to
return those papers to the district clerk.

12