FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 25, 2018
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5007
(D.C. Nos. 4:14-CV-00232-CVE-PJC and
JEFFREY SHAUN BAGBY, a/k/a Jeffrey 4:10-CR-00134-CVE-1)
Sjawn Bagby, a/k/a Jeffrey Shawn Bagby, (N.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
This is a pro se § 2255 proceeding. Jeffrey Shaun Bagby was charged in the
United States District Court for the Northern District of Oklahoma with (1) possessing 50
grams or more of cocaine base (crack) with intent to distribute and (2) being a felon in
possession of a firearm. Just before his trial commenced, he waived his right to counsel
and proceeded to represent himself. The jury convicted him on the drug count and
acquitted him on the firearm count. Because of his prior felony drug convictions, Mr.
*
This order is not binding precedent, except under the doctrines of law of the case,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.
Bagby was sentenced to a mandatory minimum sentence of life in prison on the drug
count. This court affirmed. United States v. Bagby, 696 F.3d 1074 (10th Cir. 2012).
Mr. Bagby subsequently filed the 28 U.S.C. § 2255 motion underlying this
proceeding, alleging seven grounds of ineffective assistance of counsel in pretrial
proceedings and on appeal. Mr. Bagby describes these grounds as follows:
I. Whether trial counsel provided constitutionally ineffective assistance when
he/she failed to object to the government’s pervasive misconduct, including its
deliberate fraud upon the Court relevant to the [Tulsa Police Department]
corruption investigation.
II. Whether trial counsel provided constitutionally ineffective assistance when she
failed to file a motion to suppress the statements purportedly made by the
defendant to Officer Mackenzie.
III. Whether trial counsel provided constitutionally ineffective assistance when she
failed to adequately investigate and prepare for trial.
IV. Whether trial counsel provided constitutionally ineffective assistance when she
failed to object to the District Court’s conclusion that the defendant had
knowingly and voluntarily waived his right to counsel.
V. Whether trial counsel provided constitutionally ineffective assistance when he
failed to request a hearing on previous counsel’s motion to withdraw based
upon an undisclosed conflict of interest.
VI. Whether Appellant counsel provided constitutionally ineffective assistance
when he failed to raise the issues enumerated above on direct appeal.
VII. Whether Appellant counsel provided constitutionally ineffective assistance
when he failed to argue that the facts (prior convictions) used to increase the
defendant’s mandatory minimum sentence to life imprisonment were elements
of the offense that should have been contained in the indictment, submitted to
the jury, and prove[n] beyond a reasonable doubt.
(Appellant’s Opening Br. at 6.) The court proceeded to deny all seven ineffective
assistance of counsel claims on the merits. It also denied a certificate of appealability in
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the same order. The court entered judgment by separate order on January 16, 2018. Mr.
Bagby now seeks a certificate of appealability from this court.
Mr. Bagby makes essentially the same arguments on appeal as he did in the trial
court. After a review of the trial court’s thorough decision, the supporting record, and
relevant case law, we conclude that Mr. Bagby has not demonstrated that the trial court’s
decision was incorrect or that the issues raised are debatable among jurists. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For substantially the reasons given by the trial
court, we therefore DENY the application for a certificate of appealability and DISMISS
the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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