F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 6 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-3265
v. (District of Kansas)
(D.C. No. 98-3160-RDR)
DALE ALLEN ROBERTSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The court
therefore honors the petitioner’s request and orders the case submitted without
oral argument.
*
This order and judgment is not binding precedent, except under the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.
This case is before the court on pro se petitioner Dale Robertson’s
application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
Robertson seeks to appeal the district court’s denial of Robertson’s 28 U.S.C. §
2255 petition for post-conviction relief. Because Robertson has failed to make a
substantial showing of the denial of a constitutional right, this court denies
Robertson a certificate of appealability and dismisses this appeal.
In 1991, Robertson was indicted on federal bank robbery and weapon
charges. Prior to his trial, Robertson was involved in a serious automobile
accident and was in a coma for thirty-one days. As a result of the accident and
coma, Robertson lost his memory of events occurring during the time period of
the indictment. Nevertheless, after a hearing on the issue, the trial court
concluded that Robertson was competent to stand trial and competent to assist his
counsel. Ultimately, a jury convicted Robertson on all three counts of the
indictment. On appeal of his conviction to this court, Robertson raised the
following issues: (1) a confession he gave in the hospital after the accident was
involuntary and obtained in violation of Miranda ; (2) the procedures utilized for
an in-court identification were unduly suggestive; and (3) the trial court abused
its discretion in admitting the testimony of two government witness. United
States v. Robertson , 19 F.3d 1318 (10 th
Cir. 1994). Upon review of the issues
raised by Robertson, this court affirmed his convictions. Id. at 1325.
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On May 18, 1998, Robertson filed a motion to “vacate” his sentence
pursuant to § 2255. As grounds for the petition, Robertson argued as follows: (1)
newly discovered evidence in the form of recovered memories, proved he is
innocent of the crimes for which he was convicted; and (2) his trial counsel was
ineffective. After ordering Robertson to file a supplemental brief on the issue of
the newly recovered memories, the district court issued an order denying relief.
As to Robertson’s claim regarding the newly discovered memories, the district
court concluded the claim simply alleged Robertson was factually innocent.
According to the district court, “A claim of factual innocence based on newly
discovered evidence is not sufficient to support relief under § 2255 without a
claim of a constitutional or legal violation in the trial of the case.” Dist. Ct.
Order at 2 (citing Guinan v. United States , 6 F.3d 468, 470 (7 th
Cir. 1993); see
also Sellers v. Ward , 135 F.3d 1333, 1338-39 (10 th
Cir. 1998) (holding in a §
2254 case that a claim of actual innocence is not a basis for federal habeas corpus
relief no matter how convincing the evidence). As to Robertson’s claim of
ineffective assistance, the district court concluded the claim should be denied on
two grounds. First, Robertson filed his petition well outside the limitations
period set out in 28 U.S.C. § 2243(d). Furthermore, Robertson had not alleged a
government created impediment to the bringing of a timely ineffective assistance
claim nor that the facts necessary to the claim were only recently discovered or
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discoverable. See 28 U.S.C. 2243(d)((1)(B), (D). Second, Robertson’s claim of
ineffective assistance was far too conclusory to merit a hearing or further
treatment. 1
Under § 2253, Robertson’s appeal may not be considered unless he first
obtains a certificate of appealability. A certificate of appealability will issue only
if the issues raised in the petition are debatable among jurists of reason, if a court
could resolve the issues differently, or if the questions presented are deserving of
further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4. (1983).
Upon review of Robertson’s application for a certificate of appealability and
appellate brief, the district court’s Order, and the entire record on appeal, this
court concludes, for substantially the same reasons set forth in the district court’s
Order dated June 29, 1998, that Robertson cannot satisfy this burden and is not
entitled to a certificate of appealability.
Robertson’s application for a certificate of appealability is DENIED and
this appeal is DISMISSED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
1
The entire extent of Robertson’s allegations with regard to this claim are
as follows: “I could not, nor would my attorney allow me to assist him in
defending me.”
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