FILED
United States Court of Appeals
Tenth Circuit
August 19, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 11-8020
v. (D.C. No. 07-CV-00322-ABJ)
STEVEN B. JONES, (D. Wyo.)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Defendant, a federal prisoner proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his § 2255 habeas petition.
Following a nine-day jury trial, Defendant was convicted of participating in a
drug-trafficking conspiracy. His conviction and sentence were affirmed on direct
appeal. See United States v. Jones, 468 F.3d 704 (10th Cir. 2006). In the instant
§ 2255 habeas motion, Defendant raised several claims of ineffective assistance
of trial and appellate counsel, as well as a claim of actual innocence. The district
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court denied Defendant’s motion without holding an evidentiary hearing.
In his petition for a certificate of appealability, Defendant argues the
district court committed several errors in denying his habeas petition. Two of his
arguments warrant some discussion. First, Defendant argues the district court
misapprehended the basis for Defendant’s claim regarding the trial testimony of
one of Defendant’s co-defendants, who entered a plea of guilty several days into
the trial. The district court considered whether trial counsel was ineffective for
failing to seek severance, but Defendant points out that his claim was actually
premised on the alleged violation of the trial court’s sequestration order.
However, although we agree with Defendant that the district court apparently
misapprehended the ground on which his claim was based, we nonetheless
conclude that reasonable jurists would not debate whether the court’s denial of
this claim was correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Tenth
Circuit precedent makes clear that sequestration orders “‘only apply to those who
are known to be witnesses at the time,’” United States v. Boley, 730 F.2d 1326,
1333 (10th Cir. 1984) (quoting United States v. Cort-wright, 528 F.2d 168, 176
(7th Cir. 1975)), and thus Defendant’s counsel was not ineffective for failing to
argue that the court’s sequestration order was violated when Defendant’s co-
conspirator testified against him after pleading guilty several days into the trial.
See id.
We next address Defendant’s contention that the district court’s discussion
-2-
of the facts relating to his selective prosecution claim was contradicted by the
court’s recitation of the testimony of one co-conspirator. Although we agree with
Defendant that the court’s factual recitations appear inconsistent, we nevertheless
conclude that reasonable jurists would not debate whether the court erred in
denying this claim. Defendant argues that his selective prosecution claim was
properly raised and preserved at the trial court level and that his appellate counsel
rendered ineffective assistance by failing to raise this issue on appeal. However,
if this issue had been raised on appeal, the trial court’s finding that Defendant
was not subjected to selective prosecution would have been upheld unless it was
clearly erroneous. See United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.
1986). Because the record before us does not support the conclusion that this
finding was clearly erroneous, we conclude that reasonable jurists would not
debate whether appellate counsel was ineffective for failing to raise this issue on
appeal. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) (“When
a defendant alleges his appellate counsel rendered ineffective assistance by failing
to raise an issue on appeal, we examine the merits of the omitted issue. If the
omitted issue is without merit, counsel’s failure to raise it does not constitute
constitutionally ineffective assistance of counsel.”) (internal quotation marks and
citations omitted).
As for Defendant’s other claims of ineffective assistance and his claim of
actual innocence, we are persuaded that reasonable jurists would not debate the
-3-
district court’s resolution of these claims. We likewise conclude that reasonable
jurists would not debate the district court’s conclusion that an evidentiary hearing
was not required because the files and records in this case conclusively illustrate
that Defendant is not entitled to any relief.
We next consider Defendant’s motion for the court to take judicial notice of
adjudicative facts. We construe this as a motion to supplement the record on
appeal and, so construed, we grant the motion. However, these supplementary
materials do not affect our resolution of this matter. Three of the four documents
attached to Defendant’s motion are purported booking documents placing him in
jail during part of the time the drug-trafficking conspiracy was in effect. We are
not persuaded, however, that counsel was ineffective for failing to investigate this
possible defense, where Defendant has not shown that he informed counsel of his
jail time. “An attorney’s failure to investigate cannot be charged as a claim of
ineffective assistance of counsel when the essential and foundational information
required to trigger such an investigation is withheld from the defendant’s attorney
by the defendant himself.” See United States v. King, 936 F.2d 477, 480 (10th
Cir. 1991) (internal quotation marks omitted). Nor are we persuaded that
Defendant’s supplementary materials—the three booking documents and an
affidavit from an acquaintance averring that he never saw Defendant dealing in
illegal drugs or possessing firearms—would cause reasonable jurists to debate
whether the district court erred in denying Defendant’s actual innocence claim.
-4-
For the foregoing reasons, we DENY Defendant’s request for a certificate
of appealability and DISMISS the appeal. Defendant’s motion for the court to
take judicial notice of adjudicative facts is construed as a motion to supplement
the record and, so construed, GRANTED. Defendant’s request for the
appointment of counsel to represent him on appeal is DENIED. Defendant’s
motion to amend his COA petition to correct a typographical error is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
-5-