United States v. Lemon

Appellate Case: 20-6119 Document: 010110617209 FILEDPage: 1
Date Filed: 12/10/2021
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS December 10, 2021
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6119
(D.C. Nos. 5:19-CV-00073-R &
JEFFREY LEMON, JR., 5:15-CR-00185-R-1)
(W.D. Okla.)
Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Mr. Jeffrey Lemon, Jr., appeals from the district court’s denial of his motion

to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He requests a

certificate of appealability (“COA”) to authorize us to reach the merits of his

appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we deny him a COA and

dismiss the matter.

I

Mr. Lemon was indicted by a federal grand jury on eighteen counts of theft

*
This Order is not binding precedent, except under the doctrines of law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.

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of mail matter by a United States Postal Service employee, in violation of 18

U.S.C. §§ 2 and 1709. At his arraignment, the magistrate judge appointed

Assistant Federal Public Defender William P. Early to represent Mr. Lemon.

Mr. Early and Mr. Lemon’s attorney-client relationship soured, such that on

the night before the trial, Mr. Lemon moved the court for leave to replace Mr.

Early with a salaried attorney and moved for a continuance. Mr. Lemon

complained, among other things, that Mr. Early failed to visit the post office

where he worked to talk with some employees. Mr. Lemon also complained that

Mr. Early failed to interview certain prospective witnesses before trial. Mr. Early,

for his part, supported Mr. Lemon’s requests but nevertheless claimed that he did

visit the post office and interviewed the employees and witnesses whom Mr.

Lemon specifically identified. Mr. Early explained that the whole issue regarding

Mr. Lemon’s disagreement with him came down to what he thought was

appropriate versus what Mr. Lemon thought was appropriate to do for trial

preparation. On that matter, Mr. Early told the district court that his trial strategy

was adequately prepared. Given this information, the court chose to deny Mr.

Lemon’s motions.

At trial, the government called twenty-two witnesses. Mr. Lemon’s

appointed counsel cross-examined twenty of them, but did not call any witnesses.

Thirteen of the government’s witnesses testified that they purchased and mailed

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money orders at the post office but that the money orders were never received by

their intended recipients. And all but one of those witnesses provided a physical

description of the postal clerk who assisted them; their descriptions matched Mr.

Lemon. Evidence was also provided showing that the money orders were cashed

by a certain “Clerk 4,” which was Mr. Lemon’s employee status number at the

post office. There also was testimony that no other postal clerk logged into the

post office’s computer system as “Clerk 4.” Evidence also showed Mr. Lemon’s

propensity for gambling. And crucially, evidence was admitted showing that Mr.

Lemon confessed to the crime in the form of a written statement under penalty of

perjury, wherein he admitted to cashing the money orders.

Mr. Lemon’s counsel challenged the credibility of the government’s

evidence by showing that the investigators did not use all of the available

techniques at their disposal when they were investigating Mr. Lemon. Counsel for

Mr. Lemon particularly noted that the government did not do certain things—e.g.,

“record [an] interview [between investigators and Mr. Lemon], obtain video

surveillance, use tracker devices, or obtain [Mr. Lemon’s] bank records”—in an

attempt to attack the government’s investigation. See United States v. Lemon, 714

F. App’x 851, 855 (10th Cir. 2017) (unpublished).

The jury found Mr. Lemon guilty of seventeen counts of theft of mail matter

by a postal service employee. The district court sentenced Mr. Lemon to twelve

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months’ imprisonment and two years of supervised release, the latter of which was

later extended by twelve months due to a violation.

Mr. Lemon appealed from his convictions, arguing that the district court

prejudicially erred by denying his motion for a continuance filed on the eve of

trial, admitting his confession to postal investigators, admitting evidence of his

gambling, excluding his repudiation of his prior confession, and instructing the

jury that the government was under no obligation to use any particular

investigative method. A panel of this court upheld the district court’s rulings on

all of these challenged matters. See Lemon, 714 F. App’x at 853.

On January 25, 2019, Mr. Lemon filed the instant § 2255 motion. Mr.

Lemon asked the district court to vacate his convictions and order a new trial

because he received ineffective assistance of counsel. Specifically, he argued that

his counsel was ineffective because of counsel’s failure to call certain defense

witnesses, to introduce into evidence certain photos of the post office and Mr.

Lemon’s bank statements, and to adequately cross-examine government witnesses.

The district court denied the motion. The district court reasoned that, first,

Mr. Lemon offered nothing but his own descriptions of the potential defense

witnesses’ testimony. Second, the district court noted that the photos of the post

office were redundant of the photos the government already introduced into

evidence. As for the bank statements, the district court observed that Mr. Lemon

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failed to produce anything that would substantiate his allegation that the bank

records would have demonstrated his financial stability; indeed, there was

evidence at trial showing that Mr. Lemon had financial difficulties during the

relevant period. Lastly, the district court found that Mr. Lemon’s argument

regarding his counsel’s failure to cross-examine witnesses was unavailing because

Mr. Lemon’s claims about the potential witnesses and their testimony were either

unsupported assertions, contrary to the record, potentially detrimental to his own

case, or simply irrelevant in rebutting the government’s case-in-

chief—inadequacies that made the district court conclude that Mr. Lemon failed to

show how he was prejudiced by his counsel’s purported failures.

The district court also denied Mr. Lemon a COA. Mr. Lemon thereafter

filed a notice of appeal, seeking the issuance of a COA to challenge the court’s

dismissal of his habeas petition.

II

Before our court may fully consider and rule on the merits of Mr. Lemon’s

appellate claims, he must obtain a COA to appeal from the district court’s order

denying his § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006) (“A COA is a jurisdictional pre-requisite to

our review.” (citing Miller-El v. Cockrell, 537 U.S. 322, 323 (2003))). We may

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grant a COA only if Mr. Lemon “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

In its seminal decision, Slack v. McDaniel, the Supreme Court shed light on

the showing required to satisfy this statutory standard:

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.

529 U.S. 473, 484 (2000).

In other words, because the COA inquiry “is not coextensive with a merits

analysis,” the “only question” at this stage “is whether the applicant has shown

that ‘jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct.

759, 773 (2017) (quoting Miller-El, 537 U.S. at 327). In fact, if a court of appeals

“first decid[es] the merits of an appeal, and then justif[ies] its denial of a COA

based on its adjudication of the actual merits, it is in essence deciding an appeal

without jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).

Mr. Lemon’s ineffective-assistance claim implicates the well-settled

standard that the Supreme Court articulated in Strickland v. Washington, 466 U.S.

668, 687 (1984). Therefore, in determining whether to grant Mr. Lemon a COA,

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we must employ this standard. Under Strickland, proponents of an ineffective-

assistance claim must carry a two-fold burden: they must show (1) that “counsel’s

performance was deficient,” and (2) that “the deficient performance prejudiced the

defense.” Id.

Mr. Lemon argues that a COA is warranted because reasonable jurists could

disagree about the district court’s disposition of his § 2255 motion. Boiled down

to its essence, Mr. Lemon predicates this argument on two points. First, Mr.

Lemon alleges that his counsel unreasonably failed to investigate and develop

evidence that would have undermined the government’s case. Second, and

relatedly, he argues that the court erred in not conducting an evidentiary hearing

regarding his ineffective-assistance claim. We disagree on both points and

conclude that reasonable jurists would not debate whether the district court

properly denied Mr. Lemon’s ineffective-assistance claim without holding an

evidentiary hearing.

A

Mr. Lemon stresses that his counsel’s “investigation into independent

witnesses” was lacking, leading “to [Mr. Lemon’s] prejudice.” Aplt.’s Opening

Br. at 10. To illustrate that contention, Mr. Lemon enumerates various things that

certain witnesses could have proffered as testimony but for his counsel’s lack of

investigation: one of the witnesses, the post office manager, “could have testified

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that postal inspectors did review video evidence and found no evidence of

untoward actions by Mr. Lemon”; his counsel’s cross-examination of a police

investigator “could have [] established that Mr. Lemon’s girlfriend and now wife .

. . borrowed and used” Mr. Lemon’s casino player’s card, which ostensibly would

have served to negate the evidence of his gambling habit; “supervisors at the post

office could have testified there was not enough cash on hand” for Mr. Lemon to

have cashed money orders valued at up to $1,000 every business day; defense

counsel “would have learned” that another postal employee “purchased a money

order from Mr. Lemon, the same money order claimed to have been purchased

when [a] victim[’s] money order was cashed,” and that same postal employee

“would have stated that he bought the money order under” Mr. Lemon’s name;

and, lastly, quite a few postal workers also had access to Mr. Lemon’s password

and work station and had significant financial problems. Id. at 11–12.

However, Mr. Lemon’s arguments do not persuade us that reasonable jurists

would conclude that the district court’s resolution of his ineffective-assistance

claim was debatable or wrong. Mr. Lemon offers nothing more than bald, vague

assertions—without proper evidentiary support through affidavits or

otherwise—regarding the substance and trial impact of prospective witnesses’

testimony. Yet, under Strickland, that is not good enough. See Snow v. Sirmons,

474 F.3d 693, 730 n.42 (10th Cir. 2007) (noting that, to show prejudice under

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Strickland, a litigant “must show . . . that the testimony . . . would have been

favorable, [and] that the witness [actually] would have testified at trial” (quoting

Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990))); see also United

States v. Gallant, 562 F. App’x 712, 715 (10th Cir. 2014) (unpublished) (“Movants

insufficiently support their allegations that the ignored issues would have helped

their defense. . . . [M]ovants offer nothing but their own descriptions of these

witnesses’ prospective testimony . . . . These unsupported descriptions, which also

fail to show that the uncalled witnesses would have testified at trial, are

insufficient to show prejudice.”); United States v. Ashimi, 932 F.2d 643, 650 (7th

Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally

be presented in the form of actual testimony by the witness or on affidavit. A

defendant cannot simply state that the testimony would have been favorable;

self-serving speculation will not sustain an ineffective assistance claim.” (footnote

omitted)).

Put more specifically, Mr. Lemon does not provide witness affidavits, cite

to helpful statements in the trial record, or quote documents from his trial

counsel’s interviews with any of these potential witnesses to bolster his

ineffective-assistance claim. What Mr. Lemon proffers is merely his unsupported

claims about what certain potential witnesses could have said at trial and how such

testimony could have affected his case, and that is insufficient to demonstrate what

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Mr. Lemon’s proposed supportive witnesses’ actual “testimony would have been.”

See United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986).

In sum, reasonable jurists would not debate the district court’s resolution of

Mr. Lemon’s ineffective-assistance claims.1

B

Further, Mr. Lemon’s complains about the district court’s decision not to

hold an evidentiary hearing. Mr. Lemon did ask the district court—albeit in

cursory fashion—to grant him such a hearing, but the court effectively denied him

this relief. Mr. Lemon’s complaints in this regard, however, do nothing to cast

any doubt on the propriety of the district court’s ultimate resolution of his

ineffective-assistance claim. More specifically, reasonable jurists would not

debate the correctness of that resolution on the existing record—without an

evidentiary hearing. Under the circumstances here, it follows ineluctably no

1
Mr. Lemon also suggests that his counsel was “not prepared with
respect to the defense case.” Aplt.’s Opening Br. at 10. Supposedly, “[a]s a result
of that, defense counsel failed to develop evidence, either on cross-examination or
through independent witnesses, that would have cast significant doubt on the
government’s case.” Id. Mr. Lemon does not meaningfully support these
assertions—which gives us no reason to question our decision to deny him a COA
on his ineffective-assistance claim. As noted, his appointed counsel told the
district court he was ready to go to trial and had a trial strategy in hand. And,
under that strategy, defense counsel attacked the government’s investigation of Mr.
Lemon. Mr. Lemon does not demonstrate how counsel’s approach in this respect
was inadequate.

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reasonable jurist would debate that the district court did not abuse its discretion in

denying Mr. Lemon an evidentiary hearing to prove up the allegations of his

ineffective-assistance claim.

Under § 2255, a district court must conduct an evidentiary hearing “[u]nless

the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b); accord United States v.

Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000). “We review the district court's

refusal to hold an evidentiary hearing for an abuse of discretion.” United States v.

Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (quoting United States v. Harms, 371

F.3d 1208, 1210 (10th Cir. 2004)).

Mr. Lemon makes no distinct argument in support of an evidentiary hearing.

Nor does he explain why the district court abused its discretion in denying him

one. He merely notes the statutory conditions under which the grant of an

evidentiary hearing is required, refers us back to his substantive ineffective-

assistance arguments, and conclusorily asserts that he is “entitled to an evidentiary

hearing on his ineffective assistance of counsel claim[.]” Aplt.’s Opening Br. at

15; see also id. at 7 (stating conclusorily that “[t]he petition stated sufficient facts

to warrant an evidentiary hearing”). Given this skeletal presentation, we could

rightly deem this argument to be waived. See Eizember v. Trammel, 803 F.3d

1129, 1145 (10th Cir. 2015) (citing Grant v. Trammell, 727 F.3d 1006, 1025 (10th

Cir. 2013)); see also Fairchild v. Trammell, 784 F.3d 702, 724 (10th Cir. 2015)

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(“Even a capital defendant can waive an argument by inadequately briefing an

issue.” (quoting Grant, 727 F.3d at 1025)).

However, even if we were inclined to decipher the likely substance of this

argument, we would conclude that it does not aid Mr. Lemon’s quest for a COA.

As suggested by our discussion, supra, regarding his substantive ineffective-

assistance argument, Mr. Lemon has provided no evidence that would have given

the district court “a firm idea of what the [proffered] testimony will encompass

and how it will support [his ineffective-assistance] claim.” Moya, 676 F.3d at

1214 (quoting United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004)).

Instead, he merely relied on his unsupported and conclusory assertions regarding

what certain witnesses might say.

Not only did this vague and nebulous presentation ultimately doom Mr.

Lemon’s ineffective-assistance claim and render the district court’s denial of

it—on the existing record—beyond reasonable debate, it also makes clear that the

district court could not have abused its discretion in denying him an evidentiary

hearing regarding this claim. See, e.g., Cervini, 379 F.3d at 993 (“The vague

character of Defendant’s proffer regarding what his witnesses . . . would actually

say[] about this claim does not favor an evidentiary hearing.”). Put another way,

given the patent weaknesses of Mr. Lemon’s ineffective-assistance claim on the

existing record, no reasonable jurist would debate that the district court did not

abuse its discretion in effectively ruling that the existing record conclusively

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shows that Mr. Lemon is not entitled to relief. See Moya, 676 F.3d at 1214

(“Given the conclusory nature of Defendant’s allegations, the district court’s

denial of an evidentiary hearing was not an abuse of discretion.”).

III

For the foregoing reasons, we DENY Mr. Lemon’s request for a COA and

DISMISS this matter.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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