United States v. Cash

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 4, 2020

TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-7040
(D.C. Nos. 6:15-CV-00117-JHP
MICHAEL LYNN CASH, 6:11-CR-00057-JHP-1)
(E.D. Okla.)
Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HOLMES, MURPHY, and CARSON, Circuit Judges.

Pro se Defendant-Appellant Michael Lynn Cash 1 requests a certificate of

appealability (“COA”) to challenge the district court’s denial of his Federal Rule

of Civil Procedure 60(b) motion, wherein he argued that the court, in denying him

28 U.S.C. § 2255 relief, had failed to consider one of his contentions. See

*
This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
1
Because Mr. Cash is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
Spitznas v. Boone, 464 F.3d 1213, 1218, 1225 (10th Cir. 2006) (concluding that

“a COA is required to appeal from the denial of a true Rule 60(b) motion” and

that the “contention that the district court failed to consider one of [the 28 U.S.C.

§ 2254 petition’s] habeas claims represents a ‘true’ 60(b) claim”); see also Peach

v. United States, 468 F.3d 1269, 1271 72 (10th Cir. 2006) (per curiam) (stating

the same, in the context of a 28 U.S.C. § 2255 motion). The district court here

denied Mr. Cash’s Rule 60(b) motion on the ground that it had in fact considered

and rejected the argument that Mr. Cash said it had overlooked. The court also

denied him a COA. Because Mr. Cash has not “made a substantial showing of the

denial of a constitutional right,” we, too, deny him a COA. Spitznas, 464 F.3d at

1225 (quoting 28 U.S.C. § 2253(c)(2)); accord Laurson v. Leyba, 507 F.3d 1230,

1231 (10th Cir. 2007). Accordingly, we dismiss this matter.

I. BACKGROUND

In 2011, an Oklahoma police officer pulled over Mr. Cash for failing to

stop his vehicle completely at a stop sign. United States v. Cash, 733 F.3d 1264,

1267 68, 1271 (10th Cir. 2013) (affirming Mr. Cash’s convictions on direct

appeal). Mr. Cash told the police officer that he was late for a urinalysis

appointment with his federal probation officer. The police officer saw “in plain

view on the front passenger seat [of Mr. Cash’s vehicle] a device consisting of an

elastic band with a rubber bladder, a tube, and a clamp, which he recognized from

2
his prior experience as a device for defeating a urine drug test (‘bladder

device’).” Id. at 1268.

Suspecting that Mr. Cash was planning to cheat his urine test, which is a

crime in Oklahoma, the police officer called Mr. Cash’s probation officer to the

scene. Id. at 1269; see id. at 1274 (noting that it violates Oklahoma law “to

‘[a]ttempt to foil or defeat a urine, drug, or alcohol screening test’” (alteration in

original) (quoting O KLA . S TAT . tit. 63, § 7002(A)(2))). When the probation

officer arrived about thirteen minutes later, he asked Mr. Cash to retrieve the

bladder device that the police officer had seen. Id. at 1269. Mr. Cash rolled

down his car’s passenger window and handed the device to his probation officer,

who called a supervisor for advice about what to do next. Id.

During that phone call, the probation officer saw “what he thought to be the

butt of a pistol under a gym bag on the back seat of Mr. Cash’s vehicle.” Id.

When Mr. Cash refused an order to exit his car, the officers pulled him from it,

handcuffed him (after a struggle), and recovered a pistol, which was loaded,

cocked, and had its safety off. Id. at 1269 70. During an inventory search of Mr.

Cash’s car, the officers found, among other drugs, ten grams of methamphetamine

divided into eleven baggies. Id. at 1270. Mr. Cash later admitted to his probation

officer that he was “dealing drugs” and “messing with some really bad people.”

Id.

3
 A federal grand jury in the Eastern District of Oklahoma indicted Mr. Cash

on charges of possessing methamphetamine with intent to distribute in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(C), possessing a firearm in furtherance of a

drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and possessing a

firearm as a felon in violation of 18 U.S.C. § 922(g)(1). See id. at 1271. Mr.

Cash, represented by counsel, moved the district court “to suppress the firearm

and the drugs found during the traffic stop as fruit of an illegal detention.” Id.

After presiding over an evidentiary hearing on the suppression motion, a

magistrate judge issued a report and recommendation, concluding that the police

officer who stopped Mr. Cash “would have been justified in simply arresting” him

based on, among other things, the officer’s knowledge “[of] the purpose for the

[bladder] device, that [Mr. Cash] was on federal probation or supervised release,

and [that he] was on his way to take a drug test.” Findings and Recommendation

at 10 11, United States v. Cash, No. 11-CR-00057 (E.D. Okla. Nov. 14, 2011),

ECF No. 40.

The district court adopted the magistrate judge’s report and

recommendation and denied the motion to suppress. The court held in particular

that the police officer who stopped Mr. Cash “could have arrested [him] and

seized the [bladder device], without waiting for the probation officer,” based on

the officer’s observation of the device “in plain sight.” Order at 1, United States

4
v. Cash, No. 11-CR-00057 (E.D. Okla. Jan. 3, 2012), ECF No. 47. More

specifically, the court stated that because the police officer could have arrested

Mr. Cash for possessing the device, the officer did not violate his Fourth

Amendment rights by detaining him pending his probation officer’s arrival. 2

A jury later convicted Mr. Cash of all of the charges in the indictment. See

Cash, 733 F.3d at 1272. The district court then sentenced him under the Armed

Career Criminal Act (“ACCA”) to a total of 420 months in prison. See id. at

1272 & n.4.

On appeal, Mr. Cash challenged the district court’s denial of his motion to

suppress the gun and drugs. We affirmed, holding that his prolonged traffic

stop which led to the officers finding that contraband in his car was not

unreasonable because the police officer who stopped him had “reasonable

suspicion that [he] was on his way to defeat a drug test.” Id. at 1275 76. We

noted in particular that the record showed that the officer had “observed the

bladder device in plain view on the passenger seat in Mr. Cash’s vehicle,” that

“he immediately associated [the device] with being used to cheat a drug test,” and

that “Mr. Cash told [the officer] at the beginning of the stop that he was on his

way to a drug test with [his federal probation officer].” Id. at 1274. We

2
Mr. Cash, represented by counsel, filed another suppression motion
as well, in which he maintained that one of his post-arrest statements should be
excluded under the rule of Miranda v. Arizona, 384 U.S. 436 (1966). Mr. Cash’s
second suppression motion is not relevant to the matter before us.

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concluded that those facts “led [the officer] to reasonably believe that Mr. Cash

was on his way to ‘[a]ttempt to foil or defeat a urine, drug, or alcohol screening

test’” in violation of state law. Id. (alteration in original) (quoting O KLA . S TAT .

tit. 63, § 7002(A)(2)).

In 2015, Mr. Cash timely moved the district court to vacate his sentence

under 28 U.S.C. § 2255, claiming, among other things, that his trial counsel had

been ineffective. In his amended motion, Mr. Cash argued that his counsel was

ineffective for failing to move the district court to suppress the gun and drugs as

the fruit of an illegal search of the bladder device. He asserted that the officers

had searched the bladder device by telling him that they wanted to see it (which

caused him to roll down his car’s passenger window and hand it to them) and that

they saw the gun in his car only because he had rolled down its window. He

argued that the officers’ statement that they wanted to see the device turned him

into “an agent or instrumentality of the police, triggering the Fourth Amendment.”

R., Vol. II, at 63 (Aplt.’s Am. § 2255 Mot., filed May 27, 2015). He also argued

that the officers did not have probable cause to search the device because it “was

empty” at the time, making it “an impossible prediction to believe it was being

used to cheat a drug test.” Id. at 64.

In reply to the government’s opposition to his amended motion, Mr. Cash

mentioned the plain-view doctrine, observing that it “permits a law enforcement

6
officer to seize an item without a warrant if (1) the officer was lawfully in a

position from which to view the object seized in plain view; (2) the object[’s]

incriminati[ng] character was immediately apparent; and (3) the officer had a

lawful right of access to the object itself.” Id. at 112 (Aplt.’s Reply to Gov’t’s

Resp., filed Sept. 8, 2015) (citing United States v. Sparks, 291 F.3d 683, 690

(10th Cir. 2002)). He then reiterated his contention that the officers lacked

“probable cause” to search the bladder device because it was “empty” and, thus,

did not indicate he “was attempting to foil a urine test with [it].” Id. at 113.

In 2017, the district court denied Mr. Cash’s 28 U.S.C. § 2255 motion in

relevant part. 3 The court held that the officers did not search the bladder device

in Mr. Cash’s car when they told him they wanted to see it. The court observed in

particular that Mr. Cash had “failed . . . to highlight any case wherein a defendant

became a government agent against himself by complying with a lawful request at

a traffic stop.” Id., Vol. III, at 20 (Op. & Order, filed Feb. 1, 2017). The court

concluded that Mr. Cash’s trial counsel “was not negligent for failing to advance

such a specious theory” in his suppression motion. Id. The court did not directly

3
The district court also granted Mr. Cash’s 28 U.S.C. § 2255 motion
in part by providing him relief on his claim that he was erroneously sentenced as
an armed career criminal. The district court corrected his sentence by reducing
his total term of imprisonment from an ACCA sentence of 420 months to a non-
ACCA sentence of 360 months. We granted Mr. Cash a COA on this issue and
affirmed the district court’s amendment of his sentence as appropriate relief. See
United States v. Cash, 727 F. App’x 542, 543 (10th Cir. 2018) (unpublished).

7
address Mr. Cash’s sub-argument that the officers in “searching” the

device had lacked probable cause because the device’s incriminating character

was not immediately apparent to them. But the court stated in the context of

denying another of his claims that when we held on direct appeal that “‘the

bladder device and Mr. Cash’s own admission that he was on his way to take a

drug test’ provided reasonable suspicion to detain him,” we thereby indicated that

the device’s incriminating character was apparent under “the totality of the

circumstances.” Id. at 16 (quoting Cash, 733 F.3d at 1274). Specifically, the

district court made this ruling in addressing Mr. Cash’s claim that his lawyer was

ineffective for failing to call an expert to testify at the suppression hearing that it

was unreasonable for law enforcement to believe that he was using the bladder

device for an unlawful purpose.

Mr. Cash timely appealed from the district court’s ruling on his 28 U.S.C.

§ 2255 motion. The district court denied him a COA, but we granted him one for

a claim unconnected to the matter now before us. See supra note 3. Although

Mr. Cash also applied for a COA to challenge the district court’s denial of his

claim that his attorney had assisted him ineffectively by failing to argue, in

connection with his suppression motion, that the officers searched his bladder

device without probable cause when they told him they wanted to see it, we

denied that aspect of his application, holding that it did “not deserve

8
encouragement to proceed further.” R., Vol. IV, at 21 (Order Grant. in Part, and

Den. in Part, a COA, filed Dec. 8, 2017).

After we affirmed the district court’s judgment disposing of his 28 U.S.C.

§ 2255 motion, Mr. Cash moved the district court for relief under Federal Rule of

Civil Procedure 60(b), arguing that, in denying his § 2255 motion, the court had

failed to address his argument that the officers lacked probable cause to search his

bladder device because “[its] incriminating character was not ‘immediately

apparent’” to them. R., Vol. I, at 27 (Aplt.’s Rule 60(b) Mot., filed Aug. 6,

2018). The district court initially construed the motion as a second or successive

§ 2255 motion and transferred it to us under 28 U.S.C. § 1631, but we concluded

that it instead was a true Rule 60(b) motion “over which the district court had

jurisdiction.” Id. at 33 (Order, filed Nov. 15, 2018). So we remanded the motion

to the district court so that it could consider the motion in the first instance.

On remand, the district court denied Mr. Cash’s Rule 60(b) motion on the

ground that it had “considered and rejected his ‘inherent contraband’ argument”

in denying his 28 U.S.C. § 2255 motion. Id. at 147 (Order, filed June 14, 2019).

Although it called the allegedly overlooked argument “his ‘inherent contraband’

argument,” the court recognized that the argument concerned “whether or not the

[bladder device’s] incriminating character was immediately apparent.” Id.

(quoting Aplt.’s Rule 60(b) Mot. at 2). The court said in particular that it

9
“necessarily rejected” that argument when it denied Mr. Cash’s claim that his trial

counsel was ineffective for failing to call an expert to testify at his suppression

hearing that it was unreasonable for law enforcement to believe that he was using

the bladder device for an unlawful purpose. Id. at 148. The court then denied

Mr. Cash a COA.

Mr. Cash timely appeals from the district court’s order denying his Rule

60(b) motion, and he now applies to us for a COA. Exercising jurisdiction under

28 U.S.C. § 1291, we deny him a COA and dismiss this matter.

II. DISCUSSION

Before a movant may appeal from the district court’s denial of a true Rule

60(b) motion in a 28 U.S.C. § 2255 case, “we will require the movant to obtain a

[COA] before proceeding with his or her appeal.” See Spitznas, 464 F.3d at

1216 18; see also Peach, 468 F.3d at 1271 72. We may grant a COA only “if the

applicant has made a substantial showing of the denial of a constitutional right.”

Spitznas, 464 F.3d at 1225 (quoting 28 U.S.C. § 2253(c)(2)). The Supreme Court

has explained that the substantial showing an applicant must make to receive a

COA to contest a district court’s denial of his Rule 60(b) motion must answer two

distinct questions affirmatively. See Buck v. Davis, --- U.S. ----, 137 S. Ct. 759,

775 (2017). The first question is substantive: “whether reasonable jurists could

debate the merits of the prisoner’s underlying constitutional claim.” United

10
States v. Handy, 743 F. App’x 169, 173 (10th Cir. 2018) (unpublished) (citing

Buck, 137 S. Ct. at 775). And the second is procedural: “whether reasonable

jurists could debate the district court’s procedural holding that the prisoner had

not made the necessary showing to reopen his case under [Rule 60(b)].” Id.

(citing Buck, 137 S. Ct. at 775). We may grant Mr. Cash a COA only if he clears

the “double hurdle” those questions present. Okyere v. Rudek, 732 F.3d 1148,

1149 50 (10th Cir. 2013).

Mr. Cash maintains that the district court erred in denying his Rule 60(b)

motion because, contrary to the court’s assertion, it had overlooked one of his

search-related arguments in denying his § 2255 motion. More specifically,

according to Mr. Cash, the court’s order denying his § 2255 motion shows that the

court misconstrued the nature of his allegedly overlooked argument and, thus, did

not actually consider it. See Aplt.’s Opening Br. at 9. We disagree and,

accordingly, deny him a COA.

The district court in denying Mr. Cash’s Rule 60(b) motion recognized that

the argument that Mr. Cash alleged that it had overlooked concerned “whether or

not the [bladder device’s] incriminating character was immediately apparent.” R.,

Vol. I, at 147 (quoting Aplt.’s Rule 60(b) Mot. at 2). And the court stated that it

had rejected that argument, albeit implicitly, when it denied Mr. Cash’s claim that

his trial attorney was ineffective for failing to call an expert to testify at the

11
suppression hearing that it was unreasonable for law enforcement to believe he

was using the bladder device for an unlawful purpose. Id. at 148. Indeed, in its

order denying that claim, the court noted that although the bladder device was

“not inherently contraband,” the officers had rightly come to believe that it was

“evidence of a crime due to the totality of the circumstances.” Id., Vol. III, at 16.

The court further noted that we “ha[d] already rejected Mr. Cash’s argument . . .

by holding [on direct appeal that] ‘the bladder device and Mr. Cash’s own

admission that he was on his way to take a drug test’ provided reasonable

suspicion to detain him.” Id. (quoting Cash, 733 F.3d at 1274). Under the logic

of the district court’s assertion, if the bladder device’s incriminating character

had not been readily apparent under the totality of the circumstances, our court

could not have held that it gave the officers reasonable suspicion to detain Mr.

Cash.

We ordinarily give some weight to a district court’s statement that it has

considered an issue in making a decision. See United States v. Gantt, 679 F.3d

1240, 1248 (10th Cir. 2012) (rejecting the defendant’s argument that the district

court did not consider his advisory Guidelines sentence in sentencing him, based

on the sentencing court’s statement that it was “supposed to give respectful

consideration to the guidelines”); see also United States v. Elwood, 484 F. App’x

252, 257 (10th Cir. 2012) (unpublished) (rejecting the defendant’s argument “that

12
the court failed to consider all the § 3553 sentencing factors” because the court

“expressly stated that it had considered the sentencing factors set out in § 3553”).

And we see no reason to doubt the district court’s statement here that it

considered and rejected Mr. Cash’s allegedly overlooked argument in denying his

claim that his attorney was ineffective for failing to call an expert witness at the

suppression hearing.

Mr. Cash asserts that we should disregard the district court’s statement that

it considered and rejected his contention that the bladder device’s incriminating

character was not immediately apparent because the court labeled that argument

his “‘inherent contraband’ argument.” Aplt.’s Opening Br. at 9 (quoting R., Vol.

I, at 148). He reasons that the argument he alleges that the court overlooked did

not concern whether the bladder device was per se contraband. Instead, it related

to whether the circumstances of his possession of the bladder device made its

unlawful purpose apparent to the officers at his traffic stop. Consequently,

reasons Mr. Cash, the district court’s reference to his argument as the “inherent

contraband” argument signals that the court did not actually consider his

argument.

We conclude, however, that the district court’s shorthand labeling of Mr.

Cash’s argument as the “inherent contraband” argument does not show that

reasonable jurists could debate the district court’s ruling that it had already

13
considered and rejected Mr. Cash argument. Nor does it matter that the court

considered and rejected the argument in the context of Mr. Cash’s expert-witness-

related ineffectiveness claim instead of his bladder-device-search-related

ineffectiveness claim. Although Mr. Cash presented the argument most

prominently in the context of the latter claim, see R., Vol. II, at 111 13, the

argument was also relevant to the former claim, as the district court’s rejection of

the claim made clear, see id., Vol. III, at 16 (rejecting Mr. Cash’s expert-witness-

related ineffectiveness claim and noting that the officers were justified in

reasonably suspecting that Mr. Cash was using the bladder device for an unlawful

purpose based on “the totality of the circumstances”).

Because Mr. Cash fails to demonstrate “that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling” that he

does not warrant Rule 60(b) relief because the court had already considered and

rejected his allegedly overlooked argument, we deny him a COA. United States v.

McKye, 947 F.3d 1293, 1294 (10th Cir. 2020) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)); see Buck, 137 S. Ct. at 775 (observing that the procedural

question raised by an application for a COA to contest the denial of a Rule 60(b)

motion is “whether reasonable jurists could debate the District Court’s procedural

holding that [the applicant] had not made the necessary showing to reopen his

case under [Rule 60(b)]”); see also Handy, 743 F. App’x at 173 (stating that “the

14
procedural question is whether reasonable jurists could debate the district court’s

procedural holding that Mr. Handy had not made the necessary showing [under

Rule 60(b)(6)] that the § 2255 judgment was void because the district court had

not ruled on [his] underlying constitutional claim”).

III. CONCLUSION

For the foregoing reasons, we conclude that Mr. Cash does not warrant a

COA because he has not “made a substantial showing of the denial of a

constitutional right.” Spitznas, 464 F.3d at 1225 (quoting 28 U.S.C.

§ 2253(c)(2)); accord Laurson, 507 F.3d at 1231. We, thus, DENY him a COA

and DISMISS this matter. 4

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

4
Mr. Cash’s motion to supplement his request for a COA and opening
brief is denied.

15