UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-1037
v. (D.C. No. 04-W Y-748-CB)
(Colorado)
D EBOR RA H ELLEN H U D DY ,
Defendant-Appellant.
ORDER
Filed June 19, 2006
Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.
Deborah Huddy filed a petition for rehearing and petition for rehearing en
banc, challenging portions of this court’s order in United States v. Huddy, 164
Fed. Appx. 693 (10th Cir. January 20, 2006). W e grant M s. Huddy’s petition for
rehearing for the limited purpose of revising footnote 1 of the order. In all other
respects, M s. Huddy’s request for rehearing is denied. M s. Huddy’s petition was
circulated to the en banc court, and no judge requested a poll. Therefore, her
request for rehearing en banc is also denied. Our prior order is withdrawn, and is
substituted with attached revised order.
ENTERED FOR THE COURT
Elisabeth A . Shumaker, Clerk
By:_____________________
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-1037
v. (D.C. No. 04-W Y-748-CB)
(Colorado)
D EBOR RA H ELLEN H U D DY ,
Defendant-Appellant.
ORDER
Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.
Deborah Huddy brings this action to challenge the district court’s denial of
her 28 U.S.C. § 2255 motion seeking to vacate her conviction on the grounds of
ineffective assistance of counsel. W e exercise jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253, and determine that reasonable jurists w ould not find debatable
the district court’s dismissal of M s. Huddy’s habeas petition. Slack v. M cDaniel,
529 U.S. 473, 484 (2000). Therefore, pursuant to 28 U.S.C. § 2253(c), we deny
M s. Huddy a certificate of appealability (COA) to challenge the district court’s
ruling, and dismiss her appeal.
M s. Huddy was indicted on numerous counts of wire fraud, mail fraud, and
money laundering. She proceeded to trial, where she was found guilty of all the
counts against her. She was sentenced to forty-six months of imprisonment and
ordered to pay restitution. On direct appeal, M s. Huddy unsuccessfully argued
her conviction should be reversed due to cumulative error. See United States v.
Huddy, 62 Fed. Appx. 903 (10th Cir. 2003). However, we vacated and remanded
her sentence with respect to the restitution order. Id. at * 2-3.
In her § 2255 petition, M s. Huddy argued her conviction should be vacated
because her trial counsel was ineffective during pre-trial proceedings. In
particular, she alleged her trial counsel failed to investigate or negotiate the
possibility of a plea bargain, failed to advise her of the risks of going to trial, and
failed to inform her of a possible plea bargain offered by the prosecution.
Engaging in the established analysis required by Strickland v. Washington, 466
U.S. 668 (1984), the district court disposed of each of M s. Huddy’s claims. It
subsequently declined to grant a COA. Although M s. Huddy has not submitted an
explicit application for a COA as required by 28 U.S.C. § 2253(c), we construe
her notice of appeal and accompanying brief as a COA application. See F ED . R.
A PP . P. 22(b)(2).
A COA can issue only “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 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
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further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack, 529 U.S. at 484.
“The COA determination under § 2253(c) requires an overview of the claims in
the habeas petition and a general assessment of their merits.” M iller-El, 537 U.S.
at 336. “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims. In fact, the statute forbids it.”
Id. In applying for a COA, M s. Huddy is not required to prove the merits of her
case, but she must demonstrate “something more than the absence of frivolity or
the existence of mere good faith on [her] . . . part.” Id. at 338 (internal quotations
and citation omitted). W ith these principles in mind, we have carefully reviewed
M s. Huddy’s brief, the record of these proceedings, and the district court’s order.
In so doing, we do not find debatable the district court’s denial of M s. Huddy’s
petition for habeas relief.
The district court held an evidentiary hearing at which M s. Huddy and her
trial attorney testified, giving the court an opportunity to assess their credibility.
In rejecting M s. Huddy’s ineffective assistance of counsel claims, the district
court first noted there was no merit to her assertion that her counsel was
ineffective for failing to initiate plea negotiations. The court found that M s.
Huddy had repeatedly asserted her innocence, forcefully told her attorney she was
not interested in any plea negotiations, and claimed she wanted an attorney who
would take her case to trial. The district court further noted that even if her
attorney’s actions had somehow been deficient under Strickland, M s. Huddy still
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would be unable to establish that her attorney’s performance prejudiced her under
the standard set forth in United States v. Boone, 62 F.3d 323, 327 (10th Cir.
1995). M s. Huddy could not show the prosecution was interested in entering into
plea negotiations, the court retained discretion as to whether to accept any such
plea, and it was not guaranteed that M s. Huddy’s sentence would have been any
lower as a result of a plea bargain. Id.
The district court’s analysis was similar regarding M s. Huddy’s claim that
her attorney failed to inform her of the risks of going to trial. The court pointed
to a variety of evidence indicating M s. Huddy’s attorney informed her of such
risks, along with evidence of M s. Huddy’s own knowledge springing from
separate criminal charges for which she had previously entered into a plea
agreement with the government. The court also noted that M s. Huddy had been
informed by the court itself of the risks attendant to going to trial. Consequently,
any alleged deficiency on the part of her attorney was not prejudicial. Finally, the
court rejected M s. Huddy’s claim that her counsel failed to inform her of a
possible plea bargain offer from the prosecution. The record clearly established
that no such offer existed.
Having review ed the court’s order denying M s. Huddy’s § 2255 petition in
light of the standards laid out in M iller-El and Slack, we conclude that reasonable
jurists would not debate the district court’s ruling. Accordingly, we DENY M s.
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Huddy’s request for a COA and DISM ISS her appeal. 1
SUBM ITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
1
On appeal, M s. Huddy asserted additional claims as to the ineffective
assistance of her counsel, as well as an entirely new charge claiming she was
denied a hearing by a detached and neutral judge in the course of the denial of her
§ 2255 m otion. B ecause M s. H uddy did not raise these arguments below, we
deem them waived. See Koch v. Koch Indus., Inc., 203 F.3d 1202, 1239 (10th
Cir. 2000) (failure to timely seek disqualification of judge on grounds of bias
waives issue on appeal); United States v. Stenzel, 49 F.3d 658, 661 (10th Cir.
1995) (failure to make timely objection on recusal question waives issue on
appeal). In any event, we have reviewed the transcript of the evidentiary hearing
and are not persuaded it shows bias on the part of the district court.
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