F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 14, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-4261
(D. Utah)
CRA IG C . GA RRETT, (D.Ct. No. 1:04-CV-92-TC)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
A N D DISM ISSING APPEAL
Before H E N RY, BR ISC OE, and O’BRIEN, 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 case is
therefore ordered submitted without oral argument.
Craig C. Garrett, a federal prisoner represented by counsel, filed a 28
U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district
court dismissed the motion. Garrett then filed a notice of appeal, but the district
court did not issue a Certificate of Appealability (COA). 1 Here, Garrett requested
a COA in his opening brief. See 28 U.S.C. § 2253(c)(1)(B); F ED . R. A PP . P.
22(b)(1).
Background
On April 3, 2003, Garrett pled guilty pursuant to a plea agreement to
possession of a firearm after a conviction of a misdemeanor crime of domestic
violence under 18 U.S.C. § 922(g)(9). On June 20, 2003, he was sentenced to 51
months in custody. Garrett did not file a direct appeal.
Garrett filed a § 2255 motion on June 21, 2004, claiming ineffective
assistance of counsel based on his counsel’s failure to argue he was not convicted
of a crime of domestic violence. The district court denied the motion on
September 12, 2005, concluding Garrett was previously convicted of the crime of
domestic violence in violation of Idaho Code Ann. § 18-918 (2003). The district
court noted the title of Idaho Code Ann. § 18-918 (2003) was “domestic violence”
and the Idaho Supreme Court has explained, “[t]he domestic violence statute, I.C.
§ 18-918 (2003), generally prohibits assaults and batteries among ‘household
members.’” See State v. Hansell, 114 P.3d 145, 147 (Idaho 2005). Two days
1
“If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability or state why a certificate should
not issue.” F ED. R. A PP. P. 22(b)(1). The district court did not act on Garrett’s
constructive request for a COA. A COA is deemed denied if the district court does not
address the issuance of a COA within thirty days. 10th Cir. R. 22.1(C).
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later, the Sixth Judicial District of Idaho amended Garrett’s conviction to correct
a typographical error and reflect the fact he was convicted of a simple assault
misdemeanor under Idaho Code Ann. § 18-901 (2003) rather than domestic
violence under Idaho Code Ann. § 18-918 (2003). Based on this clarification,
Garrett filed a motion for reconsideration on September 16, 2005, attaching the
amended conviction and an affidavit from the prosecuting attorney in his state
case stating that Garrett w as convicted of simple assault under Idaho Code Ann. §
18-901 (2003) and not § 18-918. Despite his amended conviction, the district
court denied the motion on September 19, 2005. On September 27, 2005, Garrett
filed a notice of appeal w ith the district court and a motion for clarification. On
November 4, 2005, the district court responded to Garrett’s motion for
clarification and outlined the same reasons stated in its September 12, 2005
decision. On July 5, 2006, Garrett filed his second corrected opening brief and an
application for COA in this Court pursuant to 28 U.S.C. § 2253(c)(1)(B) and Rule
22(b) of the Federal Rules of Appellate Procedure.
Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if Garrett makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
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court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted).
W e review the district court's factual findings for clear error and its legal
conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).
The district court correctly found Garrett’s conviction qualified as a crime of
domestic violence under 18 U.S.C. § 922(g)(9). W hile it is unclear whether the
district court considered Garrett’s amended conviction, even the amended
conviction meets the definition of misdemeanor crime of domestic violence. The
definition of “misdemeanor crime of domestic violence” contained in 18 U.S.C. §
921(a)(33)(A) does not require the underlying misdemeanor offense to have, as an
element of the crime, a domestic relationship. See United States v. Heckenliable,
446 F.3d 1048, 1050 (10th Cir. 2006), cert. denied, 127 S.Ct. 287 (2006).
Information presented to the district court by Garrett shows a domestic
relationship was involved in the underlying offense, even though the state assault
statute did not include a domestic relationship element. (Pet’r M em. in Supp. of
M ot. to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, Ex. 4 2 ).
2
This exhibit is not a part of the record on appeal. Because the facts of the
underlying offense in our record are scant, we take judicial notice. “The court is [also]
permitted to take judicial notice of its own files and records, as well as facts which are a
matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.
2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.
2001).
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The district court’s denial of Garrett’s § 2255 motion is not reasonably debatable.
Slack, 529 U.S. at 484. Garrett has failed to make a sufficient showing that he is
entitled to a COA. Accordingly, we DENY COA and DISM ISS his application.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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