FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 18, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-5102
(D.C. Nos. 4:11-CV-00687-JHP-TLW
JOHN LAWRENCE STANLEY, and 4:09-CR-00022-JHP-1)
(N.D. Okla.)
Defendant - Appellant.
ORDER DENYING A
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Mr. John Lawrence Stanley was convicted on two counts of armed bank
robbery and two counts of possession of a firearm in furtherance of a crime of
violence. He moved to vacate the sentence under 28 U.S.C. § 2255, and the
district court denied the motion. He appeals, but we can entertain the appeal only
if Mr. Stanley is entitled to a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B) (2006). Holding that he is not entitled to a certificate, we
dismiss the appeal.
*
The present order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order may
be cited, however, for its persuasive value under Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Standard for a Certificate of Appealability
To obtain a certificate of appealability, Mr. Stanley must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2006). This showing exists only if “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Mr. Stanley’s Arguments for a Certificate of Appealability
Mr. Stanley argues that he is entitled to a certificate of appealability for
three reasons: (1) The district court failed to determine whether his waiver of
legal representation was voluntary or knowing; (2) defense counsel was
ineffective by failing to seek a second mental-health evaluation; and (3) the
district court’s application of a sentencing enhancement violated his right to a
jury trial in light of the Supreme Court’s decision in Alleyne v. United States, __
U.S. __, 133 S. Ct. 2151 (2013). We conclude that Mr. Stanley’s arguments are
not reasonably debatable.
Issue 1: Waiver of the Right to Counsel
In his § 2255 motion, Mr. Stanley argued that the district court failed to
determine whether he voluntarily and knowingly waived his right to counsel. See
2
Faretta v. California, 422 U.S. 806, 835 (1975). This argument is subject to
procedural default.
A defendant is procedurally barred from making a claim under § 2255 if it
was not raised in the direct appeal “unless he can show cause for his procedural
default and actual prejudice resulting from the alleged errors, or can show that a
fundamental miscarriage of justice will occur if his claim is not addressed.”
United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Mr. Stanley conceded
that he failed to raise the issue on direct appeal, so we must evaluate whether the
procedural default is excusable.
Mr. Stanley does not give an excuse for his procedural default. But
liberally construed, 1 Mr. Stanley’s filings could be read to suggest a fundamental
miscarriage of justice if we do not address his claim. Even with this liberal
reading, however, we would conclude that the claim is procedurally barred.
This claim is based on Faretta v. California, 422 U.S. 806 (1975). There,
the Supreme Court held that a trial court must verify that a defendant knowingly
and voluntarily waives the benefit of counsel before he may represent himself.
Faretta v. California, 422 U.S. 806, 835-36 (1975). The district court can ask
questions about the defendant’s mental health to verify that his decision to waive
1
We liberally construe Mr. Stanley’s pleadings because of his pro se status. See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
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legal representation is knowing and voluntary. See Fitzpatrick v. Wainwright,
800 F.2d 1057, 1065 (11th Cir. 1986).
Mr. Stanley chose to represent himself. Though the district court asked
about that choice and suggested that Mr. Stanley accept legal representation, he
argues the inquiry was insufficient because of his mental-health issues.
We reject this argument. The district court asked Mr. Stanley to determine
whether he knowingly and intelligently waived his right to counsel. Mr. Stanley
assured the court: “I feel like I’m mentally healthy at this time. I do have
depression. As long as I get my medication, I don’t have a problem. And they’ve
been giving it to me without a problem.” R. Vol. I, at 97 (quoting June 26, 2009
Hr’g Tr. at 9). And a psychological evaluation verified that he was mentally fit
to stand trial despite his symptoms of mental illness. Pet’r’s Br. add. at 7.
The district court properly concluded that its colloquy with Mr. Stanley had
established a knowing and intelligent waiver of his right to counsel. Thus, we
conclude that the present claim is procedurally barred.
Issue 2: Ineffective Assistance of Counsel
According to Mr. Stanley, his mental health was inadequately investigated
by his attorney. The district court rejected this argument, noting that: (1) the
public defender had retained a psychologist to conduct an extensive mental health
evaluation, (2) the public defender had represented Mr. Stanley for only a short
time after receipt of the psychologist’s report, and (3) Mr. Stanley had not asked
4
for a second mental health evaluation after choosing to represent himself. The
district court’s explanation is not reasonably debatable.
An ineffective-assistance claim has two elements: (1) The representation
must be deficient, and (2) the deficiency must be so serious that it deprived the
petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
The psychologist concluded that Mr. Stanley was competent because his
“expressed thoughts were easy to understand and were fairly logical.” Pet’r’s Br.
add. at 7. The record does not suggest any reason for defense counsel to question
this evaluation. Thus, defense counsel’s decision not to order a second
evaluation was reasonable. See Elam v. Denney, 662 F.3d 1059, 1066 (8th Cir.
2011) (“Even when the initial evaluation by a mental health expert has failed to
support a competency or insanity defense, we have repeatedly rejected ineffective
assistance claims based upon counsel’s failure to obtain and present testimony by
additional mental health experts.”); Williams v. Head, 185 F.3d 1223, 1242 (11th
Cir. 1999) (“Strategic decisions, such as the one [defense counsel] made not to
request another mental evaluation of [the habeas petitioner], are virtually
unassailable, especially when they are made by experienced criminal defense
attorneys.”).
And even if a failure to order a second evaluation was deficient, Mr.
Stanley fails to show prejudice from the lack of a second mental-health
evaluation. See Gaskey v. Hartley, 280 F. App’x 746, 748 (10th Cir. 2008)
5
(denying a certificate of appealability, reasoning that the petitioner did not show
prejudice from defense counsel’s failure to order a mental evaluation).
We conclude that the ineffective-assistance claim is not reasonably
debatable.
Issue 3: Sentencing Reduction under Alleyne
Mr. Stanley also sought a reduction in his sentence based on the Supreme
Court’s decision in Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013).
The district court rejected the claim, and Mr. Stanley challenges this ruling. We
conclude that Mr. Stanley’s claim is not reasonably debatable.
After the § 2255 motion was fully briefed, Mr. Stanley wrote to the district
court and added the Alleyne claim. In this letter, he claimed enhancement of his
sentence under “18 USC 92(c)(1)(C)(i).” Letter by John Lawrence Stanley to
United States District Court (June 26, 2013), ECF No. 113. There is no such
section in the United States Code. Thus, our threshold task is to determine what
Mr. Stanley had intended.
To make this determination, we can take judicial notice of the presentence
report. 2 This report reflected a finding of guilt on 18 U.S.C. § 924(c)(1)(C)(i),
which triggers a mandatory minimum sentence of 25 years for a second or
subsequent conviction. 18 U.S.C. § 924(c)(1)(C)(i) (2006). The Supreme Court
has held that a prior conviction need not be submitted to the jury, and the Alleyne
2
The district court adopted the presentence report as “the factual basis for the
sentence.” Sent. Tr. at 6, Oct. 28, 2009, ECF No. 76.
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Court left this holding in place. Almendarez-Torres v. United States, 523 U.S.
224, 247 (1998); Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2160 n.1
(2013). Thus, we have denied a certificate of appealability when the movant
argued that Alleyne retroactively applied to invalidate a judge’s finding regarding
a prior conviction. United States v. Goodwin, No. 13-3177, __ F. App’x __, 2013
WL 5509175, at *1 (10th Cir. Oct. 7, 2013). This opinion is persuasive, and we
deny a certificate of appealability to Mr. Stanley for the same reason: Even if
Alleyne were to apply retroactively, it would not have required the district court
to submit the existence of a prior conviction to the jury.
Conclusion
Mr. Stanley has not made a substantial showing of the denial of a
constitutional right. Thus, we deny his request for a certificate of appealability
and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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