FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 8, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-4029
(D.C. No. 2:11-CV-01052-TC)
v. (D. Utah)
JEFFREY F. GEDDES,
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this matter. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and petitioner, Jeffrey Geddes, appearing pro se, seeks a
certificate of appealability (“COA”) in order to appeal the district court’s denial
of his motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)
*
This order is not binding precedent except under the doctrines of law of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.
(requiring COA to appeal dismissal of § 2255 motion). Because the issues raised
by Mr. Geddes could have been, but were not, raised on direct appeal, we deny
his request for a COA and dismiss this matter.
Mr. Geddes pled guilty to multiple charges of bank and wire fraud, and a
single charge of failure to appear. He was sentenced to 188 months of
imprisonment. On appeal, his attorney filed an Anders 1 brief and the appeal was
dismissed, following our consideration of the two issues raised by counsel.
United States v. Geddes, 401 Fed. Appx. 387 (10th Cir. 2010).
Mr. Geddes then filed his § 2255 motion, claiming that he was denied
counsel of his choice in violation of the Sixth Amendment because he was forced
to use the public defender rather than private counsel. On December 5, 2011, the
district court issued an Order and Memorandum Decision, denying Mr. Geddes’
motion, ruling that his claim is procedurally barred because it could have been,
but was not, raised on direct appeal.
It is well established that “[s]ection 2255 motions are not available to test
the legality of matters which should have been [but were not] raised on direct
appeal,” unless the movant “can show cause excusing his procedural default and
actual prejudice resulting from the errors of which he complains, or can show that
a fundamental miscarriage of justice will occur if his claim is not addressed,”
United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994); see United States v.
1
Anders v. California, 386 U.S. 738 (1967).
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Frady, 456 U.S. 152 (1982); Massaro v. United States, 538 U.S. 500, 504 (2003)
(noting the “general rule that claims not raised on direct appeal may not be raised
on collateral review unless the petitioner shows cause and prejudice”).
Mr. Geddes does not contend that the issue raised in his § 2255 motion was
raised on his direct appeal. Nor does he argue that circuit law has changed since
his direct appeal. Rather, he contends that his attorney failed to raise issues on
appeal that Mr. Geddes wanted him to raise. Appellant’s Opening Br. at 4.
Nevertheless, under Tenth Circuit Rule 46.4(B)(1), (2), when counsel files
an Anders brief, and moves to withdraw on the grounds that there are no
meritorious issues on appeal, the clerk of this court sends the defendant, by
certified mail, a copy of counsel’s brief, the motion to withdraw, and a notice
containing instructions to the defendant with respect to his right to raise any
appellate issue he desires. The records of this court show that Mr. Geddes was
sent those documents, including the notice, to the address he continues to list as
the correct one, on June 4, 2010. The court thereafter received a signed return
receipt acknowledging delivery of those items to Mr. Geddes. Copies of that
notice and the return receipt are attached.
As we indicated in our opinion on Mr. Geddes’ direct appeal, United States
v. Geddes, 401 Fed. Appx. 387, and again reaffirm, from June 4, 2010, to
November 9, 2010, the date we issued our opinion, Mr. Geddes did not file any
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response as directed in the notice, or attempt in any way to advance the arguments
he seeks now to make.
We will issue a COA “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
showing, Mr. Geddes must demonstrate “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). When the district court dismisses a petition on procedural grounds, as it
did here, the applicant must not only make a substantial showing of the denial of
a constitutional right; he must also demonstrate that the district court’s “dismissal
on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petitioner should be allowed to proceed
further.” Id. at 484. That is the case here.
Accordingly, substantially for the reasons set forth in the district court’s
Order and Memorandum Decision dated December 5, 2011, we DENY Mr.
Geddes’ application for a COA and DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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