United States v. Varah

UNITED STATES COURT OF APPEALS
Filed 7/29/96
TENTH CIRCUIT

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-8007
(D.C. No. 94-CV-124-J)
A. LEONARD VARAH, (D. Wyoming)

Defendant-Appellant.
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ORDER AND JUDGMENT *

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Before BRORBY, EBEL and HENRY, Circuit Judges.

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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
ordered submitted without oral argument.

A. Leonard Varah, appearing pro se and in forma pauperis, appeals the

district court's denial of his motion to vacate, set aside or correct his sentence

brought under 28 U.S.C. § 2255. In August of 1987, a jury found Mr. Varah

guilty of conspiracy in violation of 18 U.S.C. § 371, mail fraud in violation of 18

U.S.C. § 1341 and securities fraud in violation of 15 U.S.C. §§ 77q and 77x. Mr.

Varah has previously appeared before this court in connection with this case in

two direct appeals, United States v. Varah, 952 F.2d 1181 (10th Cir. 1991);

United States v. Varah, No. 87-2320, 1992 WL 186530 (10th Cir. July 30, 1992),

cert. denied, 506 U.S. 1079 (1993), and regarding a Writ of Mandamus. Varah v.

Honorable Alan B. Johnson, United States District Judge for the District of

Wyoming, No. 95-625, slip op. (10th Cir. Sept. 26, 1995).

Mr. Varah raised eleven issues in his § 2255 petition. Without holding an

evidentiary hearing, the district court entered a decision and memorandum

denying Mr. Varah's petition. On appeal, Mr. Varah contends the district court

erred in denying his § 2255 petition without holding an evidentiary hearing. 1 We

1
Because we reject Mr. Varah's claims on the merits and because neither
party raised the issue, we decline to address any effect the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, may

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affirm the district court's decision.

I

Under 28 U.S.C. § 2255:

Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the court
shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.

On appeal, "we must first decide whether 'petitioner's allegations, if proved,

would entitle him to relief. If so, the district court's summary denial of an

evidentiary hearing is reviewed for an abuse of discretion.'" Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991) (internal citation omitted). Under the

abuse of discretion standard we will not disturb the district court's decision unless

we have "a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances."

McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir. 1991). We also

note we are free to affirm the district court's decision on any grounds supported

by the record, "even grounds not relied upon by the district court." United States

have on our review of § 2255 petitions. See Lennox v. Evans, No. 96-6041 at 8
(10th Cir. June 24, 1996) (also declining to address the Act's effect on § 2255
petitions).

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v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994). On appeal Mr. Varah claims

the district court erred by denying him a hearing regarding seven issues. We will

address each one in turn.

A. Right to a Speedy Appeal

Mr. Varah asserts he deserved an evidentiary hearing on his claim the delay

in his direct appeal denied him his constitutional right to a speedy trial. We agree

with Mr. Varah that the nearly five years occurring between his sentencing on

August 21, 1987, and July 30, 1992, when his appeal was decided is a long time

to wait for a ruling. In order to successfully make his claim, however, he must

prove the factors outlined in Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994).

In Harris we recognized the meaninglessness of an appeal that is inordinately

delayed. Id. at 1557-58. To determine whether the delay violated Mr. Varah's

due process rights we must balance four factors:

a. the length of the delay;

b. the reason for the delay;

c. whether the petitioner asserted his right to a timely appeal; and

d. whether the delay prejudiced the petitioner by

i. causing the petitioner to suffer oppressive incarceration
pending appeal; or

ii. causing the petitioner to suffer constitutionally cognizable

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 anxiety and concern awaiting the outcome of his or her appeal;
or

iii. impairing the petitioner's grounds for appeal or his or her
defenses in the event of a reversal and retrial.

Id. at 1559. We will address each factor. The nearly five years Mr. Varah waited

for his appeal to be resolved clearly qualifies as an inordinate delay capable of

triggering due process concerns. Because we are not provided with the reason for

the delay 2 we will assume there is not a constitutionally sufficient justification for

the delay. Regarding the third factor, we fail to see any evidence that Mr. Varah

contested the delay during his motions; however, because every appellant has the

right to believe his or her appeal will be dealt with in a reasonable time and

recognizing that Mr. Varah is appearing pro se, we will not weigh this failure too

heavily against him.

Finally, we must decide whether or not the delay prejudiced Mr. Varah. Mr

Varah claims the delay caused "the deterioration of his mental illness," had a

"substantial financial effect ... because of his inability to obtain meaningful

employment during this period," affected his personal life and family and affected

his ability to pursue his § 2255 motion. The district court found:

2
Although from the record it appears to have been caused primarily by the
district court's handling of post-trial motions.

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 Although defendant Varah was not incarcerated during the post-trial
proceedings, he contends that he suffered anxiety and distress by
virtue of the delay. The Government has noted that, in a sworn
statement of the defendant dated September 8, 1992, and submitted to
the court in response to the Government's motion to revoke
defendant's bond, Varah indicated he was employed by a private
individual for several years as a consultant and as a part-time
official. There is no doubt that conviction for criminal conduct itself
carries a significant stigma, which impacts a defendant's personal and
business life. Here, however, the effect upon the defendant has not
been shown to be inordinate or unusual beyond that experienced by
others awaiting the outcome of their appeals.

Because he was not incarcerated during the appeal and he has not claimed

an impairment to his grounds of appeal, Mr. Varah must show a constitutionally

cognizable anxiety to prevail. In Harris we held:

A petitioner has no reason to be anxious or concerned about
the time it takes to adjudicate an appeal that is without merit.
Therefore, to establish prejudice resulting from anxiety, a petitioner
must ... assert a colorable state or federal claim that would warrant
reversal of the petitioner's conviction or reduction of sentence to an
amount of time less than that taken to adjudicate the appeal.

Id. at 1565. Because Mr. Varah was ultimately unsuccessful in his appeal he had

no reason to be concerned or anxious about the delay and he is therefore unable to

meet the prejudice factor. Thus, the district court did not abuse its discretion in

denying his right to a speedy appeal claim without a hearing.

B. Denial of Effective Assistance of Counsel

In his complaint pursuant to § 2255, Mr. Varah raised an ineffectiveness of

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counsel claim which the district court denied. Mr. Varah also raised

ineffectiveness of counsel on his direct appeal, which we denied, holding "Varah

has failed to show that 'there is a reasonable probability that, but for counsel's ...

errors, the result of the proceeding would have been different,' as required by

Strickland [v. Washington, 466 U.S. 668, 694 (1984)]." United States v. Varah,

No. 86-00063-01J, 1992 WL 186530, at *4 (10th Cir. July 30, 1992), cert. denied,

506 U.S. 1079 (1993). In United States v. Galloway, 56 F.3d 1239, 1242-43 (10th

Cir. 1995), we held:

the fact that an ineffectiveness claim is raised and adjudicated on
direct appeal will not procedurally bar an ineffectiveness claim in a
proceeding under 28 U.S.C. § 2255, where new reasons are advanced
in support of that claim. It should go without saying that the
identical reasons in support of ineffectiveness cannot be litigated
twice. That is prevented by the doctrine of issue preclusion.

Mr. Varah claims issue preclusion does not bar his current ineffective assistance

of counsel claim because "[t]he claim presented in this petition is different

because it is now supported by the affidavit of Varah's trial counsel, where his

claim in the direct appeal was not."

We have carefully reviewed Mr. Varah's claims in his direct appeal and the

affidavit written by his trial attorney, Daniel White. This affidavit contains 50

enumerated paragraphs in which Mr. White lists his lack of preparation, failure to

interview the government's proposed witnesses prior to trial, failure to

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comprehend the evidence against Mr. Varah so he could prepare an adequate

defense, his failure to hire an accountant, errors he made during cross

examination and his poor handling regarding whether Mr. Varah should testify on

his own behalf. These are the exact same failings Mr. Varah alleged in his direct

appeal. The only difference is in the direct appeal his counsel provided record

citations as evidence whereas Mr. Varah's § 2255 motion is supported by Mr.

White's affidavit. Mr. White's affidavit simply admits the accusations made by

appellate counsel on direct appeal. As previously stated, we have already found

those claims lacking merit in Mr. Varah's direct appeal. Because we find no

relevant distinction between the issues raised or the reasons given in the two

proceedings, we hold Mr. Varah's ineffective assistance of counsel claim is barred

by the doctrine of issue preclusion and was properly denied without a hearing.

C. Attorney Pico's Alleged Threats Against Trial Counsel

Mr. Varah next alleges he deserved a hearing regarding the threats United

States Attorney Francis Pico allegedly made against Mr. White regarding the

above referenced affidavit. Mr. Varah claims these threats were made to deprive

him of Mr. White's testimony:

This included withdrawal of his affidavit prepared to support Varah's
claim of ineffective assistance of counsel.... Attorney Pico's actions
also deprived Varah of Attorney White's testimony in regards to the
anti-semitic remarks made to him by Attorney Pico. Finally, these

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 threats prevents [sic] Varah from using Attorney White's testimony to
support his claim that exculpatory evidence was withheld by the
Government.

Mr. Varah alleges "these threats were that these Government employees would

use their influence to cause Attorney White financial and professional harm if he

did not withdraw the affidavit ... in support of his claim for ineffective assistance

of counsel." The district court denied this claim noting that the only evidence Mr.

Varah offered to support his claim was a letter from Mr. White declining Mr.

Varah's request for an additional affidavit in which Mr. White specifically states

that the letter should not be used as an evidentiary basis for any relief Mr. Varah

sought in federal court. In the letter Mr. White does not claim that any threats

have been made against him. The district court found:

The additional affidavit defendant sought from his trial counsel
relates to communications made after trial and after the original
affidavit was delivered to the defendant. This ground for the motion
under 28 U.S.C. § 2255, even if true, would not justify vacating,
setting aside, or correcting the sentence imposed by the court. No
showing has been made that the conduct of government officials was
in fact improper and if it was, whether it infected the trial in such a
manner as to warrant reversal or whether it was harmless beyond a
reasonable doubt.

The only threat Mr. Varah identifies focuses on Mr. White withdrawing his

affidavit written in support of Mr. Varah's ineffective assistance of counsel claim.

This affidavit, however, was not withdrawn and was considered as evidence by

both the district court and this court. Mr. Varah has thus suffered no prejudice

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even if he were able to prove such a threat had been made. His expansion of this

one alleged threat into a whole new realm of prejudice is unsupported by any

evidence or facts other than his conclusory allegations nor has he tied it to any

grounds warranting vacating, setting aside or correcting his sentence. For these

reasons we find the district court did not abuse its discretion in denying him a

hearing on this issue.

D. Effect of Mr. Varah's Mental Illness

Mr. Varah alleges his mental illness prevented him from assisting in his

defense during the trial. The government notes that Mr. Varah failed to allege

this claim in his direct appeal, which procedurally bars it from being raised for

the first time in a § 2255 motion unless "he can show cause excusing his

procedural default and actual prejudice resulting from the errors of which he

complains, or can show that a fundamental miscarriage of justice will occur if his

claim is not addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.

1993). Mr. Varah fails to allege any reason why he failed to bring this claim

during his direct appeal. Even if his claim was not procedurally barred, however,

it would fail. The only evidence Mr. Varah offers in support of his claim is his

diagnosis shortly after the trial with severe depression and a letter from the

Department of Corrections stating that since his incarceration he has been

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prescribed Prozac and required to see a psychiatrist once a month. These are all

events occurring after the trial. Furthermore, the district court in its opinion

found:

The court did not observe difficulty on the part of the defendant in
relating to his counsel during the course of the trial. The defendant
attended robing room motions and proceedings outside of the
presence of the jury when the defendant was subject to closer
observation by the court. Neither the court's observation of the
defendant during the course of the four-week trial nor the record in
this matter support defendant's claim.

Giving the district court's personal observations deference and considering the

absence of any evidence beyond Mr. Varah's conclusory allegations, we find the

district court did not abuse its discretion in denying his motion without a hearing

on this matter.

E. Allegations of Religious Prejudice

Mr. Varah alleges Mr. Pico made anti-Semitic remarks which "raise a

strong presumption that his motives in taking certain actions in this case are based

on his prejudice against Varah because of his religion." In particular Mr. Varah

claims Mr. Pico's interference with Mr. Varah's request to be transferred to

Canada, his native country, pursuant to 18 U.S.C. § 4100 et seq., was motivated

by anti-Semitism. Mr. Varah provides no factual basis for this claim nor any

information regarding how or when Mr. Pico interfered with his transfer request.

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We agree with the government's position that because § 2255 motions are brought

to vacate, set aside or correct illegal or unconstitutional convictions or sentences

it is not the appropriate medium to deal with denial of transfer request motions.

The district court correctly denied this claim without holding a hearing.

F. Government's Alleged Failure to Disclose Exculpatory Evidence

Mr. Varah maintains the government failed to disclose exculpatory

evidence including "specific actions by other Government agencies which may be

inconsistent with his conviction, ... specific witnesses interviewed by the

Government before his trial who subsequently gave exculpatory testimony in

other proceedings, and Government witnesses who gave different testimony at

subsequent proceedings than the testimony given at Varah's trial." The district

court denied these allegations, stating:

Defense counsel was provided access to all evidence in possession of
the prosecution as reflected in the Proffer of evidence submitted two
months before trial and in the six notices filed by the Government
before trial which described its intention to use certain evidence. In
addition, evidence in possession of the Government was available in
the months preceding trial for examination by the defendant and his
counsel....

There is no evidence that the United States was aware of
perjured or contradictory testimony, if any, allegedly given by
Government witnesses or of potential witnesses that was generated
after defendant's trial. There is no basis for defendant's contention
that the United States concealed evidence from him or otherwise
sought to undermine his defense.

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 After reviewing the record we find no evidence of prosecutorial

misconduct. The record reveals the information known by the government before

and during trial was made freely available to Mr. Varah and his attorney. The

fact they may have failed to review it thoroughly cannot be blamed on the

government. Furthermore, Mr. Varah provides no evidence that the government

knew of any allegedly contradictory testimony before or during trial. Once again,

Mr. Varah makes several conclusory allegations. To support his allegations Mr.

Varah points to the fact that two government agencies, the Security and Exchange

Commission and the Internal Revenue Service, made subsequent findings of lesser

liability against Mr. Varah "based upon the same documents in the possession of

Attorney Pico and the U.S. Attorney's office for the District of Wyoming." This

claim merely asserts that different parts of the government concerned with

different types of liability relied on the same documents to find different levels of

culpability. It does not support a claim that the government somehow concealed

evidence from Mr. Varah. The district court did not abuse its discretion in

denying Mr. Varah's claim for a hearing on this issue.

G. Mr. Pico's Failure to Deny or Contradict Mr. Varah's Allegations

Mr. Varah's final contention is a broad generalization that because Mr. Pico

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has not contradicted or denied the accusations of misconduct or anti-Semitic

remarks or motivations made against him an evidentiary hearing must be held on

Mr. Varah's motion. This contention merely attempts to revive arguments we

have already addressed above and is without merit. 3

The district court's order is AFFIRMED.

Entered for the Court:

WADE BRORBY
United States Circuit Judge

3
We note for the record that in its brief the government states that it does
not concede that any threats were made against Mr. White and "vehemently and
without qualification" denies that any racially motivated actions were taken by its
attorneys.

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