FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 6, 2018
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-1395
v. (D.C. Nos. 1:17-CV-01319-LTB and
1:12-CR-00444-LTB-1)
GREGORY LYNN HOPSON, (D. Colo.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
Defendant, Gregory Lynn Hopson, seeks a certificate of appealability
(“COA”) so he can appeal the district court’s denial of the motion to vacate, set
aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the denial of a § 2255
motion unless he first obtains a COA). Because Hopson has not “made a
substantial showing of the denial of a constitutional right,” this court denies his
request for a COA and dismisses this appeal. Id. § 2253(c)(2).
Hopson pleaded guilty to two counts of transportation of child pornography
and one count of possession of child pornography. Pursuant to the terms of a
written plea agreement, Hopson reserved the right to appeal the denial of a motion
to suppress evidence. On direct appeal, this court affirmed the denial of Hopson’s
suppression motion. United States v. Hopson, 643 F. App’x 694, 697 (10th Cir.
2016).
Hopson then filed the instant § 2255 motion asserting the following claims:
(1) his trial counsel was ineffective for failing to “correctly litigate Fourth
Amendment issues,” (2) this court’s conclusion the search warrant was supported
by probable cause involved an “unreasonable determination of facts in light of the
evidence presented” and a deprivation of his due process rights, 1 (3) this court
“create[d] hypothetical facts” when it affirmed the denial of his motion to
suppress, and (4) the government failed to disclose exculpatory evidence. The
district court denied Hopson’s motion in a comprehensive order. Applying the
two-part test set out in Strickland v. Washington, 466 U.S. 668, 688-89 (1984),
the court analyzed all of Hopson’s ineffective assistance of counsel claims and
concluded they lacked merit. As to Hopson’s claims challenging this court’s
rulings in his direct appeal, the district court concluded those claims were not
cognizable in a § 2255 motion seeking post-conviction relief. The court also
ruled that Hopson was not entitled to relief under Brady v. Maryland, 373 U.S. 83
(1963). Hopson’s argument challenged time stamps referenced in the search
warrant affidavit. He alleged the government failed to disclose that those time
1
In his § 2255 motion, Hopson states he raised this issue in a petition for
rehearing filed in this court but he does not state he sought a writ of certiorari
from the United States Supreme Court.
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stamps were associated with email account log-ins, not the sending of specific
emails. The district court concluded this “evidence” was not withheld
exculpatory evidence and the inconsistency was admitted by the government in its
response to Hopson’s motion to suppress.
This court cannot grant Hopson a COA unless he can demonstrate “that
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) (quotations omitted). In evaluating whether
Hopson has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Hopson is not required
to demonstrate his appeal will succeed to be entitled to a COA. He must,
however, “prove something more than the absence of frivolity or the existence of
mere good faith.” Id. (quotations omitted).
This court has reviewed Hopson’s appellate brief, the district court’s order,
and the entire record on appeal pursuant to the framework set out by the Supreme
Court in Miller-El and concludes Hopson is not entitled to a COA. The district
court’s resolution of Hopson’s claims is not reasonably subject to debate and the
claims are not adequate to deserve further proceedings. Accordingly, Hopson has
not “made a substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2). This court denies his request for a COA and dismisses this
appeal. Hopson’s motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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