FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 13, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-6277
(D.C. Nos. 5:12-CV-00733-L and
WILLIAM BERNARD FREEMAN, 5:10-CR-00165-L-1)
(W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant William Bernard Freeman was convicted of bank robbery and
sentenced to serve a 210-month term of imprisonment. United States v. Freeman,
*
This order and judgment is not binding precedent except under the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.
451 F. App’x 783, 784 (10th Cir. 2011). His conviction was affirmed by this
court. Id. at 796. On June 27, 2012, Freeman filed a motion seeking a new trial
pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. On the
same day, he also filed a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. The court entered a written order and separate judgment
denying both motions on October 9, 2012. Freeman now appeals the denial of his
Rule 33 motion and also seeks a certificate of appealability (“COA”) so he can
appeal the dismissal of the § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B)
(providing a movant may not appeal the disposition of a § 2255 motion unless he
first obtains a COA).
The district court first addressed Freeman’s Rule 33 motion, in which he
asserted he is entitled to a new trial because newly discovered evidence shows he
was actually innocent of the bank robbery conviction. A defendant is not entitled
to a new trial based on newly discovered evidence unless the evidence is “more
than impeaching or cumulative,” “material to the issues involved,” and “would
probably produce an acquittal.” United States v. Sutton, 767 F.2d 726, 728 (10th
Cir. 1985). Freeman supported his motion with communications from Alexica
Hopkins and Vivian Ayala, two individuals who participated in the bank robbery
with him. Freeman characterized these communications as a recantation of the
individuals’ trial testimony against him. When a defendant’s alleged new
evidence consists of recanted trial testimony, “the trial court must first be
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satisfied that the challenged testimony was actually false.” United States v.
Bradshaw, 787 F.2d 1385, 1391 (10th Cir. 1986). Here, the district court
concluded the emails from Ms. Hopkins did not show her trial testimony was
actually false and further concluded the information contained in the emails
would not probably produce an acquittal. As to the letter written by Ms. Ayala,
the district court concluded the letter was not a recantation of Ayala’s trial
testimony, there was nothing in the letter indicating her sworn trial testimony was
actually false, and the information in the letter would not probably produce an
acquittal in a new trial. Accordingly, the court denied Freeman’s motion.
In the same order, the district court separately addressed the claims raised
in Freeman’s § 2255 motion. In that motion, Freeman alleged his appellate
counsel was ineffective for failing to challenge the application of the career
offender sentencing enhancement. Applying the familiar two-part test set out in
Strickland v. Washington, 466 U.S. 668 (1984), the district court concluded
Freeman could not show he was prejudiced by counsel’s failure to appeal the
enhancement because he was properly sentenced as a career offender. See United
States v. Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant]
must demonstrate both Strickland prongs to establish his claim, a failure to prove
either one is dispositive.” (citation omitted)). The district court then addressed
Freeman’s request for habeas relief based on his contention he is actually
innocent of the bank robbery. Noting that an assertion of actual innocence,
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standing alone, cannot support the granting of a writ of habeas corpus, LeFevers
v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001), the district court
nevertheless also concluded Freeman failed to show he is actually innocent.
Exercising jurisdiction under 28 U.S.C. § 1291 and finding no reversible
error, this court affirms the denial of Freeman’s Rule 33 motion for substantially
the reasons stated by the district court in its order dated October 9, 2012. As to
the claims raised in the § 2255 motion, Freeman is not entitled to a COA unless
he makes “a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), by demonstrating “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted). Although Freeman need not demonstrate his appeal will succeed to be
entitled to a COA, he must “prove something more than the absence of frivolity or
the existence of mere good faith.” Miller-El, 537 U.S. at 338. Because the
district court’s resolution of Freeman’s § 2255 motion is not reasonably subject to
debate and the issues he seeks to raise on appeal are not adequate to deserve
further proceedings, he has not “made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, this court denies
Freeman’s request for a COA and dismisses that portion of this appeal.
Freeman’s request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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