FILED
United States Court of Appeals
Tenth Circuit
October 17, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 11-3089 & 11-3090
(D.C. Nos. 5:08-CV-04012-RDR,
WILLIAM LEONARD PICKARD; 5:08-CV-04013-RDR and
CLYDE APPERSON, 5:00-CR-40104-RDR-1&2)
(D. Kan.)
Defendants-Appellants.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
William Leonard Pickard and Clyde Apperson, federal prisoners, have
filed a consolidated application for a certificate of appealability (COA) seeking
to appeal the district court’s denial of certain claims they presented in a
Fed. R. Civ. P. 60(b) motion. We deny a COA and dismiss this matter.
I. Background.
Defendants were convicted of conspiracy to manufacture lysergic acid
diethylamide (LSD) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846,
and possession with intent to distribute LSD in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). See United States v. Apperson, 441 F.3d 1162, 1175
(10th Cir. 2006). Apperson was sentenced to 30 years’ imprisonment, and
Pickard received a life sentence. See id. We affirmed their convictions on direct
appeal. See id. at 1214.
In 2008 Defendants filed motions under 28 U.S.C. § 2255 to set aside their
convictions and sentences. See United States v. Pickard, No. 00-40104-01/02-
RDR, 2009 WL 939050, at *2 (D. Kan. Apr. 6, 2009). They claimed, among
other things, that “the government violated its Brady/Giglio obligations by
suppressing the criminal and informant backgrounds of certain witnesses,
including Gordon Todd Skinner,” and that “the government engaged in
prosecutorial misconduct by failing to disclose exculpatory evidence. . . .” Id. at
*4 (referring to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972)). To support their motions, Defendants offered
evidence that Mr. Skinner was involved in informant and criminal activity in
addition to that disclosed at trial. See id. at *5.
The district court ruled that this new evidence was cumulative of the
substantial impeachment evidence introduced against Mr. Skinner at trial and that,
given the overwhelming evidence of Defendants’ guilt, the new evidence would
not have caused a different result at trial. See id. at *6-*11. It therefore denied
relief. See id. at *22. Defendants sought review in this court, arguing in part that
the district court had “erred by failing to expressly address their Brady/Giglio
claims . . . and failing to address specific claims on a claim-by-claim basis.”
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United States v. Pickard, 396 F. App’x 568, 571 (10th Cir. 2010). We denied
Defendants a COA. See id. at 572. 1
While the § 2255 appeal was pending, Defendants filed in district court two
Rule 60(b) motions seeking to reopen the § 2255 proceedings. In the first motion
(Doc. No. 637) Defendants alleged defects in the § 2255 proceeding, contending
that the district court had failed to consider (1) numerous Brady claims,
(2) corresponding prosecutorial-misconduct claims, (3) discovery requests related
to those claims, (4) the “tendency and force of each Brady and prosecutorial
misconduct claim prior to making a cumulative materiality determination,” and
(5) two unaddressed motions. Aplts.’ App., Vol. 5, at 1399-1400. They also
contended (their sixth claim) that the district court should consider these
unaddressed Brady and prosecutorial-misconduct claims anew, in light of newly
discovered evidence presented in their second Rule 60(b) motion.
Defendants’ second Rule 60(b) motion (Doc. No. 639), filed the same
day, alleged that they had newly discovered evidence of “substantive undisclosed
FBI and IRS records.” Id. at 1430. In their § 2255 motion Defendants had sought
an order requiring the government to identify the federal agencies other than the
Drug Enforcement Administration (DEA) that participated in their prosecution.
The district court denied these requests, stating that “the defendants have failed to
1
We note, but do not address, Defendants’ motion regarding this COA
denial, filed on October 3, 2011.
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point to any evidence showing any involvement by other agencies in the
investigation of this case.” Id. (Further stating that “[t]o the extent that any
[Brady/Giglio] materials were overlooked, the court does not believe that these
materials could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.”). In Doc. 639 Defendants presented
evidence that federal agencies other than the DEA had been involved in the
investigation of their drug-manufacturing and distribution activities. Defendants
argued that the prosecution had failed to disclose the involvement of these
agencies in the investigation, and that these agencies might have additional
undisclosed impeachment evidence against Mr. Skinner. They asserted that the
government’s failure to disclose the involvement of other agencies in their
investigation constituted fraud on the court.
The district court concluded that in the two Rule 60(b) motions Defendants
alleged both procedural and substantive errors in its denial of their § 2255
motion. It ruled that the first five claims in Doc. No. 637 alleged defects in the
integrity of the habeas proceedings, rather than challenging the substance of its
ruling, and therefore were not new substantive habeas claims requiring prior
circuit-court authorization under § 2255(h). But it denied relief on these claims.
The court said in response to Defendants’ contentions (1) and (2) that it had
carefully considered each of the Brady and prosecutorial-misconduct claims in its
§ 2255 ruling; in response to (3), that it had considered Defendants’
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prosecutorial-misconduct claims in denying their discovery requests; in response
to (4), that it had applied a two-step analysis in finding that Defendants’ Brady
and prosecutorial-misconduct claims “were cumulatively immaterial,” id. at 1509;
and in response to (5), that it had been divested of jurisdiction to consider
Defendants’ two unopposed motions when Defendants filed their notice of appeal,
and that it had dismissed the motions as moot once we had denied a COA.
As for the sixth claim in Doc. 637 and the claims in Doc. 639, all based on
the alleged newly discovered evidence of other agency involvement, the district
court ruled that these claims required review of the substantive habeas claims that
had already been decided on the merits and thus were second-or-successive
habeas claims. Because this court had not authorized these claims to be filed
under § 2255(h), the court concluded that it lacked jurisdiction to hear them.
The district court transferred those claims 2 to this court to give Defendants an
opportunity to seek authorization under § 2255(h). Defendants have filed a
motion to remand those claims back to the district court, a motion that is being
addressed in separate proceedings in this court.
2
Specifically, the sixth claim in Doc. No. 637 and all the claims in
Doc. No. 639.
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II. Denial of COA.
A. Consideration of Rule 60(b) Motions in § 2255 Proceedings.
Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a
final judgment in certain circumstances, including mistake, newly discovered
evidence, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b).
The availability of Rule 60(b) is limited, however, when a prisoner seeks relief
from the denial of a § 2255 motion, because the rule cannot be used to circumvent
the requirement that a federal prisoner filing a second-or-successive § 2255
motion must first obtain a certification from the appropriate circuit court that
specified stringent criteria have been satisfied. See 28 U.S.C. §§ 2244(b)(3)(A),
2255(h). A Rule 60(b) motion in the § 2255 context may be subject to these
criteria if it asserts, or reasserts, a “claim,” that is,
if it attacks the federal court’s previous resolution of a claim on the
merits, since alleging that the court erred in denying habeas relief on
the merits is effectively indistinguishable from alleging that the
movant is, under the substantive provisions of the statutes, entitled to
habeas relief. That is not the case, however, when a Rule 60(b)
motion attacks, not the substance of the federal court’s resolution of
a claim on the merits, but some defect in the integrity of the federal
habeas proceedings.
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). The term “on the merits” refers
to a determination that there exist or do not exist grounds entitling a
petitioner to habeas corpus relief under 28 U.S.C. § [2255]. When a
movant asserts one of those grounds (or asserts that a previous ruling
regarding one of those grounds was in error) he is making a habeas
corpus claim.
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Id. at 532 n.4. Thus, a Rule 60(b) filing is not subject to § 2255(h)
if it either (1) challenges only a procedural ruling of the habeas court
which precluded a merits determination of the habeas application, or
(2) challenges a defect in the integrity of the federal habeas
proceeding, provided that such a challenge does not itself lead
inextricably to a merits-based attack on the disposition of a prior
habeas petition.
Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006).
B. District Court’s Denial of Defendants’ Procedural Claims.
Defendants seek a COA to challenge the district court’s ruling on the issues
that it considered procedural. An allegation that the court failed to address an
issue can be raised without authorization under § 2255(h). See Spitznas, 464 F.3d
at 1225 (contention that the district court failed to consider one of the habeas
claims represents a defect in the integrity of the federal habeas proceedings and
thus does not require circuit-court authorization).
We will issue a COA only if “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved [by the district
court] 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 quotations marks omitted). In particular,
[w]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should [not] issue [unless] jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling.
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Id.
The district court denied Defendants’ first five claims in Doc. 637, stating
that it had carefully considered each of the Brady and prosecutorial-misconduct
claims, Defendants’ discovery requests, and Defendants’ two motions. The
court’s denial of these claims is not reasonably debatable. In particular, we are
satisfied that no reasonable jurist could conclude that the district court erred in
ruling that it had addressed all of Defendants’ § 2255 claims. Indeed, this court
already said as much when, while denying a COA in Defendants’ § 2255 appeal,
we said that “[w]e are not persuaded that the district court failed to address any of
[Defendants’] claims.” Pickard, 396 F. App’x at 571.
Much of Defendants’ brief criticizes how the district court went about
analyzing their § 2255 claims. Such criticism, however, amounts to an attack on
the merits of the court’s decision. Rule 60(b) is a proper means for a prisoner to
challenge a district court’s failure to consider a claim made in a § 2255 motion; it
is not a proper means to challenge the mode of analysis employed by the district
court in resolving a § 2255 claim. The latter type of challenge requires prior
authorization under § 2255(h). See Gonzalez, 545 U.S. at 531-32 & n.5; Spitznas,
464 F.3d at 1216. Defendants do not seek such authorization, nor are these
challenges based on any new law or evidence that would warrant such
authorization. See § 2255(h)(1) and (2).
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Because no reasonable jurist could debate the district court’s denial of the
first five Rule 60(b) claims in Doc. 637, we DENY a COA.
Entered for the Court
Harris L Hartz
Circuit Judge
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