FILED
United States Court of Appeals
Tenth Circuit
July 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-1084
(D.C. Nos. 1:07-CV-02002-RPM,
v. 1:01-CR-00395-RPM-3)
(D. Colo.)
JACK DOWELL,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Jack Dowell is a federal prisoner. Through appointed appellate counsel, he
seeks a Certificate of Appealability (“COA”) to appeal the district court’s denial
of his 28 U.S.C § 2255 motion to vacate, set aside, or correct his sentence. 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This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
I. Background
In 1997, a Colorado Springs office of the Internal Revenue Service (“IRS”)
was seriously damaged by arson. In 2001, Mr. Dowell, along with several alleged
co-conspirators, was indicted in connection with the fire. A jury convicted Mr.
Dowell (who was tried separately from his co-conspirators) of destruction of
government property in violation of 18 U.S.C. §§ 2 and 844(f)(1) & (2), and of
forcible interference with IRS employees and administration in violation of 18
U.S.C. § 2 and 26 U.S.C. § 7212(a). The district court sentenced Mr. Dowell to
360 months’ imprisonment. We rejected Mr. Dowell’s challenges to his
conviction and sentence on direct appeal. See United States v. Dowell, 430 F.3d
1100 (10th Cir. 2005).
In 2007, Mr. Dowell filed a pro se motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. He raised fifteen claims of ineffective
assistance of counsel. The district court eventually appointed counsel for Mr.
Dowell and held an evidentiary hearing. In a ruling from the bench following the
evidentiary hearing, the district court denied the motion.
Mr. Dowell filed a timely notice of appeal and an application for a COA.
The district court denied the application. Mr. Dowell renews his request before
us. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
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II. Discussion
Unless a petitioner obtains a COA, we lack jurisdiction to consider the
merits of a habeas appeal. 28 U.S.C. § 2253(c)(1)(B). We may only issue a COA
if “the applicant has made a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000);
accord Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
Because Mr. Dowell’s COA application rests on claims of ineffective
assistance of counsel, in order to determine if he can make a substantial showing
of the denial of a constitutional right, we must undertake a preliminary analysis of
his claims in light of the two-part test for ineffective assistance outlined in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner
must show, first, that counsel’s performance was deficient—that the
“representation fell below an objective standard of reasonableness” as measured
by “prevailing professional norms.” Id. at 688. Second, the petitioner must
establish prejudice—“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694; accord Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008), cert.
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denied, 130 S. Ct. 133 (2009). We may review these two components in any
order, and need not address both “if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697.
In his request for a COA, Mr. Dowell raises four of the fifteen claims he
pressed before the district court. First, he contends that his trial counsel, Jody
Reuler, was ineffective for not moving to suppress inculpatory statements
allegedly made by Mr. Dowell to law enforcement agents. At the evidentiary
hearing, Mr. Reuler explained that he did not pursue a motion to suppress because
“Mr. Dowell vehemently denied ever making any confession, so there was no
discussion to suppress a confession that was never made. . . . In fact, the whole
thrust of the case was that the agents made [the confession] up, . . . that was the
strategy that we used.” R., Vol. 2, at 32–33 (Evid. Hr’g Tr., dated Mar. 5, 2010).
Mr. Dowell now contends that Mr. Reuler’s strategy was “foolhardy,” because “it
was absolutely necessary to file such a motion in order to be able to examine the
agents as to the facts and circumstances surrounding the alleged statements.”
Aplt. Br. at 15.
As framed here, in order to succeed on this ineffective-assistance claim,
Mr. Dowell must establish that there is merit to his contention that his
incriminating statements should have been suppressed. Cf. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986) (“Where defense counsel’s failure to litigate
a Fourth Amendment claim competently is the principal allegation of
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ineffectiveness, the defendant must also [in addition to the usual Strickland
showing] prove that his Fourth Amendment claim is meritorious and that there is
a reasonable probability that the verdict would have been different absent the
excludable evidence . . . .”); United States v. Cook, 45 F.3d 388, 392 (10th Cir.
1995) (“When a defendant alleges his appellate counsel rendered ineffective
assistance by failing to raise an issue on appeal, we examine the merits of the
omitted issue.”). Before us, Mr. Dowell does not mention the circumstances of
the alleged confession, 1 let alone present legal arguments concerning why it
should be suppressed. Without such support, he cannot make a substantial
showing of the denial of a constitutional right, and we must deny him a COA on
this claim.
Second, Mr. Dowell contends that Mr. Reuler provided ineffective
assistance because he “failed to call certain witnesses [o]n his behalf, and failed
to interview them or determine their availability.” Aplt. Br. at 12. But he does
1
In his pro se filings before the district court, Mr. Dowell presented
some facts surrounding the statements that he says Mr. Reuler should have sought
to suppress. See R., Vol. 1, Pt. 1 at 13–14 (Pet’r’s § 2255 Mot., Attach. A, filed
Sept. 24, 2007); id. at 132–33 (Pet’r’s Mem. in Supp. § 2255 Mot., filed Sept. 24,
2007). But Mr. Dowell did not argue why these facts supported his contention
that his statements should be suppressed. He did not attempt to do so before the
district court either in his pro se filings or after counsel was appointed, and does
not make that argument on appeal. In such circumstances, “the court cannot take
on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). This principle arguably is more important in
this case because, unlike the plaintiff in Garrett, Mr. Dowell has enjoyed the
assistance of habeas and appellate counsel.
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not say who these witnesses are; indeed, Mr. Dowell offers no facts to show why
Mr. Reuler’s performance was deficient or how Mr. Dowell was prejudiced by
any such deficiency. 2 For this reason, even though the district court did not
specifically discuss this claim, we still can say that no reasonable jurist could
question the district court’s decision to dismiss Mr. Dowell’s motion. We will
not grant a COA on this issue.
Third, Mr. Dowell claims that Mr. Reuler failed to effectively cross-
examine Ronald Sherman, an alleged co-conspirator who testified against Mr.
Dowell at trial. The district court rejected this claim, stating that “Ronald
Sherman was cross-examined by Mr. Reuler at some length, and . . . a fair
inference is the jury believed Mr. Sherman’s testimony.” R., Vol. 2, at 56. The
court acknowledged that the attorney for one of Mr. Dowell’s co-conspirators
“had a more effective cross-examination of Ronald Sherman than Jody Reuler did,
and to some extent took a different approach with respect to Sherman.” Id. at 57.
But “this is not so unusual a circumstance where one jury believes a witness, and
another jury doesn’t, and the witness is key to the prosecution. And, that’s the
2
At the evidentiary hearing, Mr. Dowell’s habeas counsel asked Mr.
Reuler why he failed to call one of Mr. Dowell’s co-conspirators as a witness.
Mr. Reuler responded that, when he asked the co-conspirator’s attorney about the
possibility of his client testifying, the attorney “said there’s no chance I’m going
to let him get up and testify.” R., Vol. 2, at 35. Mr. Dowell does not now
challenge Mr. Reuler’s explanation. Moreover, although in his pro se § 2255
filings before the district court Mr. Dowell obliquely referenced other possible
witnesses, he does not pursue these arguments here, and we will not pursue them
for him. See supra note 1.
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case here.” Id. Mr. Dowell offers no argument to challenge the district court’s
conclusion. Thus, he cannot make a substantial showing of the denial of a
constitutional right. We deny him a COA on this claim.
Finally, in what he calls his “main argument,” Aplt. Br. at 12–13, Mr.
Dowell contends that Mr. Reuler was generally ineffective because he was under
investigation by state bar authorities for instances involving the misuse of client
funds. Ultimately, Mr. Reuler was disbarred for these actions. At the evidentiary
hearing, the district court heard testimony about the incidents from Mr. Reuler
and from an attorney with the Colorado Supreme Court’s Office of Attorney
Regulation. The court concluded that the disciplinary issues did not “indicate that
Mr. Reuler was so distracted that he could not render effective assistance of
counsel.” R., Vol. 2, at 55. On appeal, Mr. Dowell marshals no specific facts
suggesting that the disciplinary proceedings caused Mr. Reuler to provide
deficient representation, or that Mr. Dowell was prejudiced by any such deficient
representation. Instead, as with his other claims, he provides only bald
allegations. That is not enough to show that reasonable jurists could disagree
with the district court’s ruling, so we deny Mr. Dowell a COA on this claim.
III. Conclusion
Because Mr. Dowell has not made a substantial showing of the denial of a
constitutional right concerning any of his claims, we must DENY his application
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for a COA and DISMISS this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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