FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 29, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8046
(D.C. Nos. 1:18-CV-00012-SWS and
JOEL S. ELLIOTT, 1:15-CR-00042-SWS-1)
(D. Wyo.)
Defendant - Appellant.
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ORDER DENYING A CERTFICATE OF APPEALABILITY
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Defendant Joel Elliott seeks a certificate of appealability (COA) to appeal the
dismissal by the United States District Court for the District of Wyoming of his motion
for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to
appeal denial of a § 2255 motion). We deny a COA and dismiss the appeal.
I. BACKGROUND
On June 4, 2014, an arsonist planted an incendiary device in the Sheridan County
Attorney’s Office that set fire to the building. Defendant Joel Elliott was suspected but
not charged with the arson. Months later, Defendant and the public defender representing
him on state charges of forgery, stalking, and burglary met with the assistant United
States attorney (AUSA) and law-enforcement officers investigating the arson. Defendant
claimed that a fellow inmate, Joseph Wilhelm, had confessed to Defendant and another
inmate, Robert Weber, that he had committed the arson. Defendant provided a proffer to
be evaluated by the federal government for a possible leniency recommendation
regarding his state charges. But after an investigation of Mr. Wilhelm, it became clear
that Defendant was attempting to frame him. The AUSA informed Defendant’s public
defender (1) that the government would not provide a favorable recommendation on
Defendant’s state charges, and (2) that the arson investigation was active and would be
treated as entirely separate from Defendant’s state charges.
In January 2015 state investigators learned from counsel for Weber that Defendant
was making incriminating statements about the arson and that Weber was willing to
surreptitiously record his conversations with Defendant. State investigators met with
Weber, placed a wire on him, cautioned him not to speak with Defendant about his state
charges or any conversations Defendant had with his state counsel, and sent Weber back
to the jail pod he shared with Defendant. On January 14 and 15, Weber recorded
conversations in which Defendant disclosed incriminating information about the fire.
Two months later, Defendant was charged in federal court with five offenses related to
the arson.
Defendant filed a pretrial motion to suppress the statements he made to Weber on
the ground that his Fifth Amendment right to counsel had been violated. Relying on
United States v. Cook, 599 F.3d 1208 (10th Cir. 2010), the district court denied
Defendant’s motion, and he was ultimately convicted. He unsuccessfully appealed his
conviction, claiming, among other things, that the government committed ethical
violations under the Wyoming Rules of Professional Conduct in arranging for the
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recorded conversations. See United States v. Elliott, 684 F. App’x 685 (10th Cir. 2017).
In contesting the appeal, the government submitted an email exchange between the
AUSA assigned to Defendant’s case and an advisor in the Department of Justice’s
Professional Responsibility Advisory Office (PRAO) concerning compliance with the
Wyoming Rules.
On January 17, 2018, Defendant filed a § 2255 motion claiming that (1) his
counsel was constitutionally ineffective in failing to contest the recorded conversations
on Sixth Amendment grounds, and (2) the government violated Brady v. Maryland, 373
U.S. 83 (1963), by withholding the email exchange between the AUSA and the PRAO.
The district court denied the § 2255 motion on both grounds and declined to grant a
COA.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires “a demonstration
that . . . includes showing 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) (internal quotation marks omitted). Otherwise
stated, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” 529 U.S. at 484.
No reasonable jurist could debate the district court’s denial of Defendant’s § 2255
motion. To prevail on an ineffective-assistance claim, Defendant must demonstrate both
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that his counsel’s performance was deficient and that “the deficient performance
prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Defendant was not prejudiced by counsel’s failure to raise a Sixth Amendment claim.
The Sixth Amendment right to counsel attaches “only to charged offenses” and to those
uncharged offenses that “would be considered the same [as the charged offense] under
the Blockburger v. United States, 284 U.S. 299 (1932) test.” United States v. Mullins,
613 F.3d 1273, 1286 (10th Cir. 2010) (brackets and internal quotation marks omitted).
At the time Weber recorded the incriminating conversations, Defendant had not been
charged with arson or any related offense. His Sixth Amendment rights therefore had not
yet attached.
Defendant also contests the district court’s denial of his Brady claim. The
government violates Brady if it suppresses “evidence favorable to an accused” that is
“material either to guilt or to punishment.” Smith v. Sec’y of N.M. Dep’t of Corr., 50
F.3d 801, 822 (l0th Cir. 1995) (internal quotation marks omitted). Evidence is material
“only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985). Defendant cannot make the necessary materiality showing
here, as the email exchange has no bearing on the merit of the arson charges against him.
Nor do the email communications suggest any violation of Defendant’s constitutional
rights that could have resulted in suppression of evidence against him. There is thus no
reasonable probability that disclosure of the email communications would have altered
the result of Defendant’s trial.
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Defendant also raises Fifth and Sixth Amendment claims regarding his recorded
conversations that were not presented to the district court, but we can easily dispose of
them on the merits. As discussed above, Defendant’s Sixth Amendment rights had not
attached at the time he spoke to Weber and thus were not violated. See Mullins, 613 F.3d
at 1286. Nor were Defendant’s Fifth Amendment rights violated, as Miranda v. Arizona,
384 U.S. 436 (1966), and its progeny apply “only in the context of custodial
interrogation.” Cook, 599 F.3d at 1214. Where, as here, the defendant is unaware that he
is speaking with a government agent, the questioning “lack[s] the police domination
inherent in custodial interrogation,” so Miranda does not apply. Id. at 1215.
III. CONCLUSION
We DENY a COA and DISMISS the appeal. We GRANT Defendant’s motion to
proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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