FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 9, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-3034
v. (D.C. Nos. 2:11-CV-02471-JWL and
2:07-CR-20168-JWL-20)
LATYSHA D. TEMPLE, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Latysha Temple, a federal prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s order denying her 28 U.S.C.
§ 2255 petition to vacate, set aside, or correct her sentence. See 28 U.S.C.
§ 2253(c)(1)(B) (requiring a COA to appeal a “final order in a proceeding under section
2255”). Ms. Temple also seeks leave to proceed in forma pauperis. Exercising
*This order is not binding precedent, except under the doctrines of law of the case,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.
1
Because Ms. Temple is proceeding pro se, we construe her pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss this matter.
I. BACKGROUND
In 2009, a jury found Ms. Temple guilty of conspiracy to possess with intent to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), (b)(1)(A)(iii), and 846. See United States v. Temple, 433 F. Appx. 630, 631
(10th Cir. 2011). She was sentenced to 151 months in prison and five years of supervised
release.
Ms. Temple appealed her conviction and sentence, raising five issues. She argued
that (1) the trial court erred in admitting wiretap evidence; (2) venue in the District of
Kansas was improper; (3) the jury received an improper instruction that Ms. Temple
could be convicted as an aider and abettor; (4) the evidence was insufficient to support
her conviction; and (5) the district court erred in applying sentencing enhancements for
possession of a firearm and obstruction of justice. Id. at 632-36. This court rejected Ms.
Temple’s claims and affirmed her conviction and sentence. Id. at 636.
On August 18, 2011, Ms. Temple filed a petition under 28 U.S.C. § 2255 to
vacate, set aside, or correct her sentence. On December 16, 2011, the district court
denied her § 2255 petition and concluded she was not entitled to a COA.
From Ms. Temple’s § 2255 petition, the district court identified three claims of
ineffective assistance of counsel, as well as five claims identical to the issues Ms. Temple
had pursued on direct appeal. The court rejected Ms. Temple’s claims of ineffective
assistance of counsel, explaining that she had not demonstrated in one claim that her
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attorney’s performance was deficient, as required by Strickland v. Washington, 466 U.S.
668 (1984), and that the record directly contradicted her two other ineffective-assistance
claims. The district court further rejected the five claims Ms. Temple had pursued on
direct appeal, concluding that they were procedurally barred.
II. DISCUSSION
Ms. Temple now seeks a COA to challenge the district court’s order denying her
§ 2255 petition. She has identified three issues in her application: (1) the trial court erred
when it admitted wiretap evidence; (2) the evidence was insufficient to support her
conviction; and (3) the jury received an improper instruction that Ms. Temple could be
convicted as an aider and abettor.2
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). If the district court’s decision
rested on procedural grounds, we will issue a COA only if the applicant “demonstrate[s]
both that ‘jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” Clark v.
Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (emphasis added) (quoting Slack v.
2
Ms. Temple’s application includes another issue that refers to “attachments” and
contains no argument. Although we construe Ms. Temple’s filing liberally, we cannot
determine the substance of this issue and cannot act as her advocate. See Merryfield v.
Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009).
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McDaniel, 529 U.S. 473, 484 (2000)). “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.” Slack, 529 U.S. at 484.
Because Ms. Temple seeks a COA on issues that were disposed of in her direct
appeal and that the district court on § 2255 review rejected as procedurally barred, we
conclude that the district court’s decision is not subject to reasonable debate. “Absent an
intervening change in the law of a circuit, issues disposed of on direct appeal generally
will not be considered on a collateral attack by a motion pursuant to § 2255.” United
States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989); see also United States v. Warner,
23 F.3d 287, 291 (10th Cir. 1994). This court disposed of all three of Ms. Temple’s
issues in her direct appeal. See Temple, 433 F. Appx. at 632-33 (legality of the wiretaps),
633-34 (aiding and abetting jury instruction), and 634 (sufficiency of the evidence).
Ms. Temple has not argued that a change in the law has occurred, and she has not
challenged the district court’s procedural ruling. Accordingly, we conclude that the
district court was correct that a plain procedural bar applied to the issues Ms. Temple
raised in her petition. Thus, a reasonable jurist could not conclude that the district court
erred in dismissing Ms. Temple’s § 2255 petition or that she should be allowed to
proceed further. See Slack, 529 U.S. at 484.
III. CONCLUSION
For the foregoing reasons, we deny Ms. Temple’s request for a COA, deny her
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motion for leave to proceed in forma pauperis, and dismiss this matter.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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