FILED
United States Court of Appeals
Tenth Circuit
February 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3290
v. (D.C. Nos. 10-CV-01091-JTM and
6:06-CR-10218-JTM-1)
BARRY P. FILLMAN, (D. Kan.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Defendant-Appellant Barry P. Fillman, a federal inmate proceeding pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct a
sentence by a person in federal custody. The issuance of a COA is jurisdictional
and requires a movant to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Fillman must show that
reasonable jurists would find the district court’s assessment of a procedural or
constitutional claim debatable or wrong. Tennard v. Dretke, 542 U.S. 274, 282
(2004) (internal quotation marks and citations omitted); Slack v. McDaniel, 529
U.S. 473, 485 (2000). We conclude that he has not met this standard; accordingly
we deny a COA and dismiss the appeal.
The parties are familiar with the facts and we need not restate them here.
See United States v. Fillman, 325 F. App’x 700 (10th Cir. 2009). Suffice it to
say, Mr. Fillman was convicted of two counts of possession of an unregistered
firearm and three counts of being a felon in possession of a firearm. 1 R. 13. He
was sentenced to a controlling sentence of 292 months with three years’
supervised release on each count to run concurrently. Id. at 14-15. On appeal,
his convictions and sentence were affirmed. Fillman, 325 F. App’x at 709.
In this appeal from the denial of his § 2255 motion, Mr. Fillman argues that
(1) the indictment and resulting sentence were multiplicitous, (2) various
enhancements to his sentence violated his right to a jury trial, and (3) he received
ineffective assistance of counsel because counsel failed to conduct an adequate
investigation, interview potential witnesses, apply for funds for an expert witness,
and challenge a faulty indictment. Aplt. Br. at 2, 13.
The first argument is procedurally barred for not having been raised on
direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). A § 2255
motion does not substitute for an appeal; only if Mr. Fillman can show cause and
prejudice or fundamental miscarriage of justice (actual innocence) may the bar be
excused. Bousley, 523 U.S. at 621-22. Mr. Fillman argues that cause is
ineffective assistance of counsel on appeal and the prejudice is a consecutive 120-
month sentence and $300 in special assessment fees. Aplt. Br. at 6. While
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attorney ineffectiveness can constitute cause, see United States v. Challenger, 583
F.3d 745, 749 (10th Cir. 2009) (citing Murray v. Carrier, 477 U.S. 478, 488
(1986)), as we discuss below the district court’s conclusion that counsel was not
ineffective is not reasonably debatable. See Strickland v. Washington, 466 U.S.
668, 687 (1984) (listing requirements for ineffective assistance of counsel).
Further, Mr. Fillman cannot show prejudice as the indictment and sentence were
not multiplicitous. The two unregistered firearm counts involved two
devices—the explosives found on his person and the rifle found in his truck, see
Fillman, 325 F. App’x at *702— and 26 U.S.C. § 5841(b) contemplates
registration for “each firearm.” 26 U.S.C. § 5841(b). We treat each unregistered
firearm “a separate unit for the purposes of criminal prosecution.” Sanders v.
United States, 441 F.2d 412, 414 (10th Cir. 1971). As to the felon-in-possession
counts, 18 U.S.C. § 922(g)(1), the firearms and ammunition were discovered in
different locations and are thus separate offenses. See United States v. Hutching,
75 F.3d 1453, 1460 (10th Cir. 1996). Accordingly, Mr. Fillman cannot
demonstrate cause and prejudice, let alone actual innocence, and the argument is
procedurally barred.
Insofar as his argument that the factual findings underlying various
enhancements violate his Sixth Amendment right to a jury trial, that contention
was rejected on direct appeal because the district court applied the guidelines in
an advisory manner. Fillman, 325 F. App’x at 707. Absent a change in the law
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of the circuit, issues previously decided on direct appeal may not be raised in a
§ 2255 motion. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
We have carefully considered Mr. Fillman’s arguments that counsel was
ineffective at trial and at sentencing, particularly that counsel failed to call
witnesses that would have testified that the devices at issue were merely
fireworks. Aplt. Br. 13-20. Given that Mr. Fillman must establish both deficient
performance and prejudice, the district court’s conclusion that he cannot is not
reasonably debatable. Although Mr. Fillman has identified various acts and
omissions of counsel, we must “evaluate the conduct from counsel’s perspective
at the time” with a heavy dose of deference—particularly with regard to potential
tactical choices. See Strickland, 466 U.S. at 689. Given the expert testimony in
the case, the potential testimony from Mr. Fillman’s friends that he was in the
business of testing fireworks simply does not create a reasonable probability that
the outcome would have been different. Nor does the assertion that another
expert would have provided favorable testimony. Counsel’s advice concerning
Mr. Fillman not testifying given the state proceedings is precisely the type of
tactical decision that we may not second-guess.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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