FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 29, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-5127
(D.C. Nos. 4:17-CV-00109-GKF-FHM and
RECO D. MANNING, 4:13-CR-00206-GKF-1)
(N.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
Reco Manning, a federal prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B)
(requiring a COA to appeal an order denying a § 2255 motion). Exercising
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
jurisdiction under 28 U.S.C. § 1291, we deny the COA request and dismiss this
matter.1
I. BACKGROUND
In 2013, police obtained a warrant to search Mr. Manning’s house based on
information from a confidential source. United States v. Manning, 635 F. App’x 404,
405-06 (10th Cir. 2015) (unpublished). In the house, police found a gun,
ammunition, heroin, methamphetamine, and other materials related to the drug trade.
A jury found Mr. Manning guilty of (1) being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1), (2) possessing heroin with intent
to distribute in violation of 21 U.S.C. 841(a)(1), and (3) possessing
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr.
Manning’s Presentence Investigation Report (“PSR”) recommended that he be
sentenced as a career offender under United States Sentencing Guideline (“U.S.S.G”)
§ 4B1.1 based on three previous convictions in Arkansas.
Mr. Manning appealed to this court. He argued that the search warrant lacked
probable cause and that the district court committed sentencing errors, including
considering his Arkansas second-degree battery conviction a “crime of violence”
under § 4B1.1(a). We affirmed the district court on all issues. Manning, 635 F.
1
Because Mr. Manning appears pro se, we afford his filings a liberal
construction, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we
do not craft arguments or otherwise advocate for him, see Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
2
App’x at 411. The Supreme Court denied certiorari. Manning v. United States, 136
S. Ct. 1220 (2016).
Mr. Manning filed this timely 28 U.S.C. § 2255 motion, contending that (1)
both his trial and appellate counsel were ineffective, (2) his due process rights were
violated because the district court determined the source of information to support the
search warrant was a “tipster” rather than an “informant,” (3) the statute under which
he was sentenced for the drug convictions was ambiguous and therefore the district
court had no jurisdiction, and (4) the enhancement of his sentence under § 4B1.1
violated his right to due process. The district court denied relief and also denied a
COA.
II. DISCUSSION
A. Legal Background
Mr. Manning may not appeal the district court’s denial of his § 2255
application without a COA. 28 U.S.C. § 2253(c)(1)(B); see United States v.
Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010). To obtain a COA, he must make “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
and “that reasonable jurists could debate whether . . . 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)
(quotations omitted).
When, as happened here on two of Mr. Manning’s § 2255 claims, a district
court dismisses a claim in a § 2255 motion on procedural grounds, we will issue a
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COA only if the movant shows it is “debatable whether the petition states a valid
claim of the denial of a constitutional right and . . . whether the district court was
correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.
A § 2255 movant may not pursue a claim when (1) the movant had a full and
fair opportunity to present the claim on direct appeal and no intervening change in
the law has occurred, United States v. Prichard, 875 F.2d 789, 790 (10th Cir. 1989);
or (2) the claim could have been raised on appeal, failure to do so was not the product
of cause and prejudice, and no miscarriage of justice will occur if it is not addressed
under § 2255, United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).
B. Analysis
We deny Mr. Manning’s request for COA. He has not shown that reasonable
jurists could debate the district court’s denial of his claims for (1) ineffective
assistance of counsel, (2) ambiguity of the statute he was sentenced under for the two
drug convictions, or (3) application of the career-offender enhancement to his
sentence.2
2
Mr. Manning has not appealed the district court’s denial of his claim that the
court’s “tipster” characterization of the source for the warrant violated his due
process rights.
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1. Ineffective Assistance of Counsel
In his § 2255 motion, Mr. Manning alleged ineffective assistance regarding
both his trial and appellate counsel.
To establish ineffective assistance of counsel, a movant must show (1)
constitutionally deficient performance by his counsel that (2) resulted in prejudice by
demonstrating “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 687, 694 (1984). If the movant is unable to show either “deficient
performance” or “sufficient prejudice,” the ineffective assistance claim “necessarily
fails.” Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010).
a. Trial counsel
Mr. Manning argued his trial counsel failed to seek an in camera hearing to
establish the identity of the source of the information for the warrant. But, as the
district court noted, trial counsel moved to compel disclosure of the source’s identity,
albeit without success. Accordingly, Mr. Manning has not shown counsel’s
performance was deficient.
b. Appellate counsel
Mr. Manning argued his appellate counsel was ineffective by failing to (1)
complain on direct appeal that the district court characterized the alleged confidential
informant as being only a tipster, and (2) challenge the enhancement of Mr.
Manning’s sentence under the career offender provision in U.S.S.G. § 4B1.1. Even if
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counsel should have raised these arguments, Mr. Manning has not shown a
reasonable probability that raising them would have altered the result of his appeal.
First, Mr. Manning has not provided legal authority or any other basis to show
that the district court’s “tipster” characterization was improper. As the district court
explained, “[t]he court’s use of the term ‘tipster’ did not reflect an assessment of the
informant’s reliability, and had no bearing on the probable cause provided by the
affidavit.” ROA, Vol. 1 at 114.
Second, this court rejected Mr. Manning’s sentencing argument on direct
appeal. Although Mr. Manning’s appellate counsel did not raise the career-offender
enhancement, we allowed Mr. Manning to file a pro se supplemental brief to
challenge the enhancement. Manning, 635 F. App’x at 408-09. We considered his
arguments under a plain-error standard3 and determined that the district court did not
plainly err by enhancing his sentence under U.S.S.G. § 4B1.1. Manning, 635 F.
App’x at 409-10.
Mr. Manning has failed to make a substantial showing of the denial of a
constitutional right, reasonable jurists could not debate otherwise, and we therefore
deny a COA on this issue.
2. Ambiguity of Statute
Mr. Manning alleged in his § 2255 motion that the district court lacked
jurisdiction to sentence him under 21 U.S.C. § 841(b)(1)(C) because the statute is
3
Mr. Manning has not alleged an ineffective assistance claim for his trial
counsel’s failure to object to the career-offender enhancement.
6
ambiguous. The district court correctly concluded, however, that Mr. Manning is
procedurally barred from raising this argument because he could have raised it on
direct appeal and has not shown cause, prejudice, or miscarriage of justice to excuse
this procedural default.4 In his brief to this court, Mr. Manning has said only that
“the issue should have been resolved in the first instance by the district [court].”
Aplt. Br. at 4. His brief does not explain why this claim should not be barred,
reasonable jurists could not debate the denial of this claim, and we therefore deny his
request for a COA on this issue.
3. Sentence Enhancement under Guidelines § 4B1.1
Mr. Manning argues that his sentence was improperly enhanced under
U.S.S.G. § 4B1.1. This argument is procedurally barred because we rejected it in his
direct appeal, see Manning, 635 F. App’x at 409-410. We generally “refuse to
reconsider arguments presented in a § 2255 motion that were raised and adjudicated
on direct appeal.” United States v. Trent, __ F.3d __, 2018 WL 1178332, at *7 (10th
Cir. 2018) (quotations omitted). Mr. Manning relies on Mathis v. United States, 136
S. Ct. 2243 (2016), as new intervening law since we decided his appeal, but, as we
held in Trent, Mathis is consistent with earlier cases and does not provide an
“intervening change in the law” that would allow us to revisit our decision in Mr.
Manning’s direct appeal. See Trent, 2018 WL 1178332 at *8.
4
Mr. Manning raised this argument for the first time in his “Motion to Recall
Mandate” filed in this court after the decision in his direct appeal, which was too late
to raise the issue on direct appeal.
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III. CONCLUSION
For the foregoing reasons, Mr. Manning has not demonstrated that reasonable
jurists could debate the correctness of the district court’s denial of relief under
§ 2255. We therefore deny a COA and dismiss this matter.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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