F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 20 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-1339
(D.C. No. 01-D-1995
v. and 96-CR-419-D)
(D. Colorado)
MICHAEL ANDRE CRUMPTON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , LUCERO , and HARTZ , Circuit Judges.
On June 23, 2000, Movant Michael Crumpton, a federal prisoner, pleaded
guilty to a charge of conspiring to distribute cocaine. The next year he challenged
the validity of his guilty plea in a pro se motion under 28 U.S.C. § 2255. The
district court denied the motion in an order entered June 10, 2002. Movant now
seeks a certificate of appealability (COA) from this court, so that he may appeal
the district court’s decision. He has also filed a motion to convert his § 2255
*
This order and judgment is not binding precedent, except under the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.
motion into a direct appeal. We deny the request for a COA and Movant’s motion
to convert.
The Government began its prosecution of Movant in November 1996, when
it charged him with several drug-trafficking offenses. Three different court-
appointed lawyers represented Movant at various points over the next four years.
In 2000, Movant entered into an agreement with the Government, under which he
pleaded guilty to one conspiracy count. The Government, in turn, agreed to move
to reduce Movant’s sentence on the basis of substantial assistance, under USSG
§ 5K1.1. The parties stipulated to a sentence of 180 months. The district court
granted the § 5K1.1 reduction and sentenced Movant to 180 months in prison.
In attacking his guilty plea, Movant makes the following allegations: (1)
that the trial court overlooked defense counsel’s lack of preparation, and that
Movant’s guilty plea was thus involuntary because he was constructively denied
counsel; (2) that he received ineffective assistance of counsel because his attorney
did not pursue an argument that the Government had breached its cooperation
agreement with him; (3) that he received ineffective assistance of counsel because
his attorney failed to explain the potential significance of Apprendi v. New Jersey,
530 U.S. 466 (2000), to his case; (4) that he received ineffective assistance of
counsel because his attorney improperly assessed whether Movant’s right to a
speedy trial had been violated and failed to preserve this argument; (5) that he
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received ineffective assistance of counsel because his attorney failed to prepare
adequately for a hearing concerning whether the Government had breached its
plea agreement with Movant; (6) that the district court violated Federal Rule of
Criminal Procedure 11 by involving itself in plea negotiations; (7) that the district
court failed to explain to Movant the elements of the offense of conspiracy; (8)
that the district court failed to determine whether there was a factual basis for
Movant’s guilty plea; and (9) that the excessive duration of his pretrial detention
rendered his guilty plea involuntary and interfered with his right to a speedy trial.
Under 28 U.S.C. § 2253(c)(2), one seeking a COA must make “a substantial
showing of the denial of a constitutional right.” Here, the district court reached
the merits of Movant’s claims in denying his § 2255 motion. Under these
circumstances, “[t]he [movant] must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in
determining whether the district court’s “resolution was debatable amongst jurists
of reason,” we should not undertake a “full consideration of the factual or legal
bases adduced in support of the claims.” Miller-El v. Cockrell, S. Ct. ,
2003 WL 431659 at *10 (2003). Rather, “[t]he COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. (emphasis added). This we now proceed to do.
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Our review of the district court’s decision in this case leads us to conclude that
the court’s evaluation of Movant’s motion was neither debatable nor wrong.
In its discussion of Movant’s § 2255 motion, the district court observed that
Movant’s allegations could be grouped into three main claims—a claim “that his
plea was involuntary because he was under duress and frustrated with his inability
to assert his rights,” a claim “that there was no factual basis for his guilty plea,”
and “the ineffective assistance of counsel claim, [which] includes a number of
subparts.” District Court Order at 3. The court began its analysis by addressing
whether there was a factual basis for the plea. It noted that the record
contradicted Movant’s assertion that his plea to the conspiracy charge was not
factually supported. The plea agreement set forth detailed facts showing that
Movant’s conduct met the elements of conspiracy. At the plea hearing Movant
stated that he believed that he was guilty of the conspiracy charge, and the
Government described the factual basis for the conspiracy charge. The district
court therefore rejected Movant’s claim that there was insufficient factual support
for the guilty plea.
Next, the district court considered Movant’s claim that his plea was
involuntary, in light of his frustration with his inability to assert his rights.
According to the court, this claim amounted to a variation on Movant’s
ineffective-assistance-of-counsel claims. Movant alleges that he felt pressure to
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plead guilty because he was not being adequately represented by his lawyers. The
district court noted that in considering such a claim, “the plea will be deemed
constitutionally involuntary only when the attorney is held to have been
constitutionally ineffective.” Worthen v. Meachum, 842 F.2d 1179, 1184 (10th
Cir. 1988) (overruled on other grounds by Coleman v. Thompson, 501 U.S. 722
(1991)).
The district court thus turned to its consideration of Movant’s ineffective-
assistance-of-counsel arguments. The court began its analysis by citing the
standard provided in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland a movant “must show that counsel's performance was deficient,” in that
the performance “fell below an objective standard of reasonableness,” and the
movant “must show that the deficient performance prejudiced the defense.” Id. at
687-688. When a guilty plea is being challenged, the establishment of prejudice
requires “show[ing] that there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In this case the district court determined that Movant failed to demonstrate
that he had received ineffective assistance of counsel. The court pointed out that
Movant’s attorneys “filed at least sixty pretrial motions during the course of this
criminal prosecution,” including “motions arguing that his speedy trial rights had
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been violated and seeking to enforce the terms of a plea offer that included a
shorter sentence.” Order at 5. The court also found that Movant’s “allegation
that his third attorney failed to advise him of the Apprendi decision does not
demonstrate ineffective assistance because Apprendi is not applicable.” Order at
6. The Supreme Court’s holding in Apprendi extends only to factual
determinations that would increase a criminal sentence beyond the statutory
maximum. 530 U.S. at 490. Here, the district court noted, Movant “was
sentenced to a term of imprisonment that is less than the lowest possible statutory
maximum for his drug conspiracy.” Order at 6. As for Movant’s contention that
his third attorney had been unprepared to proceed to trial, the district court found
that this allegation was “vague and conclusory and lack[ed] any evidentiary
support.” Order at 5. Likewise, the district court stated that any additional
ineffective-assistance-of-counsel arguments that the Movant was asserting were
“vague and conclusory and lack[ed] evidentiary support.” Order at 6.
Having reviewed Movant’s § 2255 claims, we find persuasive the district
court’s reasoning in rejecting those claims. We note, however, one particular
ground on which he has argued that his plea was involuntary. Movant contends
that the trial court improperly involved itself in the negotiations leading to the
plea agreement in this case, in violation of Federal Rule of Criminal Procedure
11(e)(1). Movant apparently argues that he felt pressure to enter the plea
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agreement because the trial court was treating as a foregone conclusion the idea
that Movant would plead guilty.
Rule 11(e)(1) makes clear that “[t]he court shall not participate in any
discussions between the parties concerning any . . . plea agreement.” We
recognize the important justifications for this rule. In this case, however, Movant
has not established that the trial court took part in any conduct that violated Rule
11(e)(1). Movant has identified the following comments as reflecting the trial
court’s improper participation in plea negotiations. During a status hearing, the
court stated:
Now, as you are aware, we had a lengthy hearing for two days
in November on the wiretap issues which involve these defendants
and defendants in some other cases, and the Court took that under
advisement; but basically, I stopped reading the materials because
you told me that in fact you were close to reaching an out of court
disposition or settlement.
In the meantime, [the attorney for one of Movant’s co-
defendants has] filed a variety of new motions, and I’m concerned
about where this case stands. So I want to know what’s going to
happen. Are you going to settle the case or do we need to hear it out
and plead a hearing on the motions and get it set for trial?
District Court Record, Govt. App., Doc. No. 979 at 227. We do not believe that
these comments can be read as an improper effort to encourage Movant to accept
a plea bargain instead of proceeding to trial. Although the court inquired into
whether the parties were likely to reach an agreement, it accepted the possibility
that the case would go to trial.
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We conclude that Movant has failed to make a substantial showing of the
denial of a constitutional right, as required under 28 U.S.C. § 2253(c)(2).
Accordingly, we DENY Movant’s request for a COA. Movant’s motion for leave
to proceed without prepayment of costs and fees is denied.
As we noted above, Movant has filed with this court a motion to convert his
§ 2255 motion into a direct appeal. The appeal before us at this time concerns the
district court’s ruling on Movant’s § 2255 motion. It appears that no appeal from
the Movant’s original sentence was docketed with this court. Regardless of the
merits of Movant’s grounds for arguing that he should now be granted leave to
pursue a direct appeal, he did not raise that issue before the district court. He
must initiate in district court any proceedings directed toward securing a new
opportunity to appeal his original sentence. See Tele-Communications, Inc. v.
Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997) (“Generally, an appellate
court will not consider an issue raised for the first time on appeal.”). Thus,
Movant’s motion to convert his § 2255 application into a direct appeal is
DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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