FILED
United States Court of Appeals
Tenth Circuit
June 23, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-3339
v. (D.Ct Nos. 2:08-CV-02089-JWL and
2:03-CR-20051-JWL)
KENNETH E. WATERBURY, (D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Kenneth Waterbury, a federal prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255
petition. We DENY a COA and DISMISS this appeal.
I. BACKGROUND
As an initial matter we must address the question of timeliness of the appeal. The
district court denied Mr. Waterbury’s § 2255 motion to vacate in a Memorandum and
Order entered September 26, 2008. The court did not, however, enter a separate Rule 58
judgment. See Fed. R. Civ. P. 58. The fourteen-page Memorandum and Order does not
satisfy the requirements of Rule 58. See Clough v. Rush, 959 F.2d 182, 185, 186 (10th
Cir. 1992) (holding that a district court order containing detailed legal analysis and
reasoning could not, standing alone, trigger the appeal process). Therefore, the time to
appeal the September 26 decision did not begin to run until 150 days had elapsed. See
Fed. R. Civ. P. 58(c)(2)(B) (if a separate judgment is not entered it will be deemed
entered after 150 days from the entry of the order). Thus, pursuant to Fed. R. App. P.
4(a)(1)(B) (because the United States is a party), Mr. Waterbury had sixty days to file his
appeal. He filed his notice of appeal on December 1, 2008. This notice of appeal was
well within the time permitted by the rules. We therefore take jurisdiction in order to
determine whether a COA should issue.
II. DISCUSSION
In his pro se application to this court, Mr. Waterbury reiterates the basis for his
request for a COA. As he did in the district court, he argues that his trial counsel was
ineffective for failing to request a severance from other co-conspirators and for failing to
object to his appearance before the jury in prison attire. To be entitled to a COA brought
pursuant to 28 U.S.C. § 2255, we must determine that Mr. Waterbury has demonstrated
that “reasonable jurists would find the district court’s assessments of the constitutional
claims debatable or wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004)
(quotations omitted). In its Memorandum and Order, the district court thoroughly
evaluated all of the issues that are presented here on appeal. The district court found that
none of the grounds raised challenging the effective assistance of counsel at trial
demonstrate that counsel’s performance “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). We agree. Mr.
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Waterbury was indicted together with several co-conspirators. The district court followed
the general rule that persons who are indicted together should be tried together. United
States v. Green, 115 F.3d 1479, 1487 (10th Cir. 1997). Mr. Waterbury has pointed to no
adequate reasons that the jury was incapable of distinguishing between the testimony
against him and against his co-conspirators. Further, the jury was clearly instructed on
how to consider the evidence separately. Thus, Mr. Waterbury has not shown that his
counsel’s performance was objectively unreasonable.
The other ground raised by Mr. Waterbury is that the defense counsel at trial was
ineffective by not objecting when he (Mr. Waterbury) appeared at trial wearing prison
apparel. It is clear that the government may not compel a defendant to stand trial in
prison clothes. Estelle v. Williams, 425 U.S. 501, 512 (1976). Nonetheless, the facts in
this case demonstrate that Mr. Waterbury was not in prison clothes because of the
compulsion of either the government or his attorney. Instead, his fiancee was expected to
produce civilian clothing at the start of trial but did not do so. Nothing in this record
shows that Mr. Waterbury asked his attorney to object prior to voir dire, and there is no
evidence in the record that he objected to proceeding to trial in prison clothing. The
failure to object to trial proceedings conducted in prison attire is enough “to negate the
presence of compulsion necessary to establish a constitutional violation.” Estelle v.
Williams, 425 U.S. 501, 512 (1976). Thus, Mr. Waterbury has not demonstrated that his
counsel’s performance fell below an objective standard of reasonableness.
Finally, to the extent that Mr. Waterbury argues that the district court should have
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held an evidentiary hearing on his claims, we conclude that no hearing was necessary.
See United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (court must hold
a hearing “‘unless the motion and files and records of the case conclusively show that the
prisoner is entitled to no relief.’”) (quoting 28 U.S.C. § 2255).
III. CONCLUSION
Neither of the grounds put forth by defendant towards his claim of ineffective
assistance of counsel rise to the level of demonstrating that reasonable jurists would find
the district court’s assessment of the constitutional claim debatable or wrong.
Accordingly, we DENY his request for a COA and DISMISS this appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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